MEMORANDUM OPINION AND ORDER
ROBIN J. CAUTHRON, District Judge.
Defendant has filed a Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody. The Court appointed the Office of the Federal Public Defender for the Western District of Oklahoma who filed a supplement to Defendant's pro se Motion. Plaintiff has responded and Defendant has replied.
Defendant seeks relief from his sentence based on the United States Supreme Court's decision in
Defendant pled guilty to a two-count superseding Indictment which charged him with possession with intent to distribute methamphetamine and possession of a firearm after conviction of a felony. The United States Probation Office prepared a Presentence Investigation Report ("PSR"). The PSR concluded that Defendant was subject to enhancement under the ACCA on Count II and the Career Offender Guideline on Count I. The predicate offenses identified by the PSR were (1) assault and battery with a dangerous weapon in the District Court of Cleveland County, (2) assault and battery with a dangerous weapon with intent to injure in the District Court of Cleveland County, and (3) assault and battery with a dangerous weapon in the District Court of Lincoln County. Each prior conviction was based on violation of 21 Okla. Stat. § 645. Defendant argues that any conviction under that statute will not satisfy any of the element clauses of either the ACCA or the Sentencing Guidelines § 4B1.1. Thus, he argues, he is entitled to resentencing.
Any argument Defendant raises pursuant to USSG § 4B1.1 is foreclosed by the United States Supreme Court's decision in
Defendant's argument that his prior convictions cannot serve as predicate offenses under the ACCA is foreclosed by the Tenth Circuit's decision in
For the reasons set forth herein, Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt. No. 45) is DENIED. A separate Judgement will issue.
IT IS SO ORDERED.