from the United States District Court for the District of New
Mexico (D.C. Nos. 1:16-CV-00240-JB-LAM &
on the briefs: [*]
Michael A. Keefe, Assistant Federal Public Defender,
Albuquerque, New Mexico, for Appellant.
D. Tierney, Acting United States Attorney, James R.W. Braun,
Assistant United States Attorney, Albuquerque, New Mexico,
TYMKOVICH, Chief Judge, HARTZ and O'BRIEN, Circuit
O'BRIEN, Circuit Judge.
snow is here added to the Johnson avalanche.
Johnson v. United States, 135 S.Ct. 2551 (2015)
(Johnson II). In what has become a common refrain in
a host of diverse circumstances, Phillip Angel Garcia claims
the New Mexico robbery statute does not satisfy the element
of violent physical force necessary for an ACCA sentencing
enhancement. He is wrong; it does.
originally pled guilty to one count of possessing a firearm
and ammunition after having been convicted of a felony, a
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
He moved to withdraw his guilty plea, but the judge denied
the motion. His crime carried a prison term of up to 10
years, id. § 924(a)(2), but because he had
three or more prior "violent felony" convictions,
the Armed Career Criminal Act of 1984 (ACCA) increased his
punishment range to a mandatory 15 years to life.
Id. § 924(e)(1). In 2008, the judge sentenced
him to a prison term of 188 months. He appealed; we affirmed.
United States v. Garcia, 577 F.3d 1271, 1273 (10th
Cir. 2009). That appeal did not raise the ACCA issue, this
noted, the ACCA mandates an enhanced sentence of imprisonment
of not less than 15 years when the violator of § 922(g)
has "three previous convictions . . . for a violent
felony." 18 U.S.C. § 924(e)(1). To fall within the
definition of a violent felony, a prior conviction must be
"punishable by imprisonment for a term exceeding one
year, " id. § 924(e)(2)(B), and must
satisfy one of three predicates:
(1)Under the Elements Clause, it must have "as an
element the use, attempted use, or threatened use of physical
force against the person of another, "§
(2) Under the Enumerated-Offenses Clause, it must be a
categorical match to the generic offenses of "burglary,
arson, or extortion, " § 924(e)(2)(B)(ii); or
(3) Under the Residual Clause, it must "otherwise
involve conduct that presents a serious potential risk of
physical injury to another, " id.
United States v. Harris, 844 F.3d 1260, 1263 (10th
Cir. 2017), petition for cert. filed (U.S. Apr. 4,
2017) (No. 16-8616).
Presentence Report concluded Garcia should be sentenced under
the ACCA, using three of his prior felony convictions-arson,
residential burglary, and possession of a deadly weapon by a
prisoner-each of which it identified as a violent felony. The
PSR also listed his other prior convictions, including a
third-degree robbery conviction under N.M. Stat. Ann. §
calculated Garcia's advisory Guideline sentencing range
at 188 to 235 months. The judge adopted the PSR's
findings and sentenced Garcia at the bottom of this range,
188 months of imprisonment, to be followed by a three-year
term of supervised release.
2015, the Supreme Court decided Johnson II. The
Court held because the Residual Clause was unconstitutionally
vague, "imposing an increased sentence under the
residual clause . . . violates the Constitution's
guarantee of due process." Johnson II, 135
S.Ct. at 2563. It left intact the Elements and
Enumerated-Offenses Clauses. Id.
March 30, 2016, Garcia filed a § 2255 motion contending
his sentence was unconstitutional under Johnson II.
He claimed one of his three predicate convictions, possession
of a deadly weapon by a prisoner, only qualified as a violent
felony under the then defunct Residual Clause.
government conceded this point, but argued the (later
declared and retroactively applied) error was harmless,
because, even without the weapon possession conviction Garcia
had three qualifying prior violent felony convictions: a
conviction for burglary, an arson conviction, and a New
Mexico robbery conviction. The robbery conviction, it said,
qualified as a violent felony under the Elements Clause and
was an apt substitution for the conviction for unlawful
government's argument presented several complications. In
the original sentencing the judge had not expressly relied on
the New Mexico robbery conviction as an ACCA qualifying
conviction. And in Johnson v. United States, 559
U.S. 133 (2010) (Johnson I), the Supreme Court had
concluded "physical force" under the Elements
Clause "means violent force-that is, force
capable of causing physical pain or injury to another
person." Id. at 140. Mere offensive touching,
for example, does not suffice. See id. at 139-42.
The government argued Garcia's robbery conviction
qualified under this standard because the use of violent
force was a necessary element of New Mexico robbery.
Alternatively, it argued against applying the Johnson
I standard retroactively to Garcia's robbery
conviction. Garcia contested these arguments.
the judge decided Garcia's § 2255 motion, the
government changed course. It withdrew its argument about the
applicability of Johnson I and conceded "New
Mexico's robbery can be committed without force causing
physical pain or injury." R., Vol. 4 at 57. This meant
the robbery conviction did not qualify as a violent felony
under the ACCA's Elements Clause after all. After that
concession the Probation Office also revisited its position;
it filed a Revised Sentencing Memorandum in which it stated
Garcia's robbery conviction was not a violent felony and
he was therefore eligible for resentencing.
same day the judge entered his Memorandum Opinion and Order,
the government filed a supplemental brief in which it again
reversed course. Citing our recently published decision in
Harris, 844 F.3d 1260, the government's second
revised position was that the "New Mexico robbery in the
third degree is indeed a qualifying violent felony under the
'force clause' [or "Elements Clause"] of 18
U.S.C. § 924(e)(2)(B)(i)." R., Vol. 4 at 158. It
does not appear the judge considered this supplemental brief
in reaching a decision.
agreed with Garcia in part; the weapon conviction did not
qualify as a predicate offense under Johnson II.
But, he said, the error was harmless because the New Mexico
robbery conviction could instead serve as his third predicate
conviction because N.M. Stat. Ann. § 30-16-2, which
prohibits theft by use or threatened use of force or
violence, qualified as a violent felony under the Elements
Clause as interpreted by Johnson I. Garcia therefore
had three qualifying predicate violent felonies under the
judge denied the § 2255 motion. In a separate order, he
denied Garcia's request for a Certificate of
Appealability (COA). We later granted a COA and now affirm.
Standard of Review and Applicable Law
review the district court's legal rulings on a §
2255 motion de novo and its findings of fact for clear
error." Harris, 844 F.3d at 1263 (brackets and
internal quotation marks omitted). "Whether a prior
conviction satisfies the ACCA's violent felony definition
is a legal question we review de novo." United
States v. Titties, 852 F.3d 1257, 1263 (10th Cir. 2017).
"[T]he Government bears the burden of proving a prior
conviction qualifies under the ACCA, " see id.
at 1272 n.19, and it is the government's burden to prove
the Residual Clause error was harmless, see generally
O'Neal v. McAninch, 513 U.S. 432, 437-45 (1995)
(stating burden of proving harmlessness of error affecting
defendant's substantial rights lies with government).
determine this issue, "we apply the categorical
approach, focusing on the elements of the crime of
conviction, not the underlying facts." Harris,
844 F.3d at 1263. Thus, we must determine whether the New
Mexico robbery statute "has as an element the use,
attempted use, or threatened use of physical force against