OK Assault and Battery with a Deadly Weapon is a Violent Felony

US v. Burtons, --- Fed.Appx. ---, 2017 WL 3531399 (10th Cir. Aug. 17, 2017) (unpublished): The Court affirms denial of Petitioner's 2255 motion. An Oklahoma conviction for assault and battery with a deadly weapon is a violent felony for purposes of ACCA under the elements clause of 18 U.S.C. § 924(e)(2)(B)(i). However, there is something potentially useful here: The Court considers the petitioner's argument based on Mathis v. United States regarding the divisibilty of the Oklahoma statute even though it was not raised until the reply brief, largely because Mathis was not decided until after the opening brief as filed. Unfortunately, the Court then concludes that the Oklahoma statute is divisible, the district court correctly applied the modified categorical approach, and the alternative under which the defendant was convicted, assault and battery with a deadly weapon under Okla. Stat. Ann. tit. 21, § 652(C) (1994), has an element of use, attempted use, or threatened use of force.