Nos. 1:16-CV-01175-REB and 1:99-CR-00120-REB-1) (Colo.)
PHILLIPS, MCKAY, and O'BRIEN, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Terrence L. O'Brien United States Circuit Judge
2002, Gary D. DeWilliams was convicted by a jury of being a
felon in possession of a firearm and ammunition in violation
of 18 U.S.C. § 922(g)(1). The district judge concluded
his criminal history included at least three prior
convictions for a "violent felony" under the Armed
Career Criminal Act (ACCA), see 18 U.S.C §
924(e)(2)(B), thereby exposing him to a mandatory minimum
sentence of 15 years. Id. § 924(e)(1). The
guideline range was 235-293 months imprisonment. The judge
sentenced him to 293 months. We affirmed on direct appeal.
See United States v. DeWilliams, 85 Fed.Appx. 154
(10th Cir.) (unpublished), cert. denied, 541 U.S.
1055 (2004). The judge denied his first 28 U.S.C. § 2255
motion and we denied a certificate of appealability (COA).
See United States v. DeWilliams, 315 Fed.Appx. 81
(10th Cir. 2009) (unpublished).
26, 2015, the United States Supreme Court held the residual
clause of the ACCA to be unconstitutionally vague.
Johnson v. United States (Johnson II), __
U.S. __, 135 S.Ct. 2551, 2557, 2563 (2015). Id. at
2557, 2563. It left untouched the remainder of the ACCA's
definition of "violent felony" including the
elements clause. Id. at 2563. On April 18, 2016, it
made Johnson II's holding retroactive to cases
on collateral review. Welch v. United States, __
U.S. __, 136 S.Ct. 1257, 1265 (2016). Relying on Johnson
II, DeWilliams filed a motion with this Court for leave
to file a second or successive § 2255 motion. We granted
current counseled § 2255 motion claims that because the
residual clause is invalid, his prior convictions can qualify
as violent felonies under the ACCA only if they satisfy
either the elements clause or the enumerated-offense clause;
according to him, they meet neither. Relevant here, he argues
his prior conviction for aggravated federal bank robbery
under 18 U.S.C. § 2113(a) and (d) does not satisfy the
elements clause because it can be committed without the use
of physical force, for example, with tear gas or
hydrochloric acid. See United States v.
Perez-Vargas, 414 F.3d 1282, 1285-86 (10th Cir. 2005)
(concluding Colorado third-degree assault is not a
"crime of violence" under USSG § 2L1.2's
elements clause because it can be committed by
"intentionally exposing someone to hazardous
chemicals," which does not involve the use or threatened
use of physical force). Similarly, his prior convictions
(two) for Colorado aggravated robbery (Colo. Rev. Stat.
§ 18-4-301) fail to satisfy the elements clause because
the Colorado courts have interpreted the statute to require
force "sufficient to render the victim unable to retain
control over" the item being stolen, including
"deftly pulling a purse off a victim's shoulder
causing the strap to break in the process." (R. Vol. 4
at 121 (quotation marks omitted).) According to DeWilliams,
this is insufficient to satisfy the elements clause, which
the Supreme Court has held to require "violent
force-that is, force capable of causing physical pain or
injury to another person." Johnson v. United States
(Johnson I), 559 U.S. 133, 140 (2010). The judge
rejected both arguments and denied a certificate of
appealability (COA). DeWilliams renews his request for a COA
with this Court.
is a jurisdictional prerequisite to our review of a petition
for a writ of habeas corpus. Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). We will issue a COA "only if
the applicant has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2). To
make such a showing, an applicant must demonstrate "that
reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate
to deserve encouragement to proceed further." Slack
v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks
omitted). He has failed to satisfy his burden and he candidly
concedes his argument concerning his prior conviction for
aggravated federal bank robbery is foreclosed by our decision
in United States v. Ontiveros, 875 F.3d 533, 536-37
(10th Cir. 2017), which concluded Perez-Vargas was
"no longer viable in light of" the Supreme
Court's decision in United States v. Castleman,
__ U.S. __, 134 S.Ct. 1405 (2014). In Castleman, the
Court explained "'physical force' is simply
'force exerted by and through concrete bodies,' as
opposed to 'intellectual force or emotional
force'" and concluded it can be either direct-a
punch or kick-or indirect-poisoning.134 S.Ct. at 1414-15 (quoting
Johnson I, 559 U.S. at 138).
admits his argument that Colorado aggravated robbery does not
satisfy the ACCA's elements clause is precluded by our
decision in United States v. Harris, 844 F.3d 1260,
1270 (10th Cir. 2017) ("[R]obbery in Colorado is a
violent felony under the ACCA's elements clause in §
924(e)(2)(B)(i)."), cert. denied, 138 S.Ct.
1438 (2018); see also United States v.
Torres-Duenas, 461 F.3d 1178, 1183 (10th Cir. 2006)
(explaining that "absent en banc review or intervening
Supreme Court precedent, we cannot overturn another
panel's decision"). He does, however, argue
Harris was wrongly decided in order to preserve the
issue for en banc or Supreme Court review. It is so
final matter remains. DeWilliams asks that we abate this case
pending the Supreme Court's decision in United States
v. Stokeling, 684 Fed.Appx. 870 (11th Cir. 2017)
(unpublished), cert. granted, 138 S.Ct. 1438
(2018). In Stokeling, the Court granted
review (on the same day it denied review in Harris)
to decide whether Florida's robbery statute, Fla. Stat.
Ann. § 812.13, satisfies the ACCA's elements clause.
More specifically, it will decide whether a state law's
robbery statute which requires the defendant to overcome the
victim's resistance is categorically a "violent
felony" under the ACCA's elements clause if that
state's law requires only slight force to overcome that
resistance. In Harris, on the other hand, we
interpreted Colorado case law regarding its robbery statute
to require Johnson I level force, i.e., "a
violent taking" rather than "mere
touching." 844 F.3d at 1265-70. Because
Stokeling is "highly unlikely to have any
impact on this case," we decline to abate this case
until that case is decided, which may not occur until June
2019. See United States v. Victorio, 719 Fed.Appx.
857, 858 n.1 (10th Cir. 2018) (unpublished).
the result reached by the district judge is correct under our
precedent, and DeWilliams so concedes, we
DENY a COA and DISMISS this
matter. His request to proceed on appeal without prepayment
of fees (in forma pauperis or ifp) is
MOOT because we have reached the merits of
his COA application.
 DeWilliams was represented by counsel
in the district court and remains so in this putative