United States v. Manzanares

956 F.3d 1220

UNITED STATES of America, Plaintiff - Appellee,

v.Archie MANZANARES, Defendant - Appellant.

No. 18-2010

United States Court of Appeals, Tenth Circuit.

FILED April 17, 2020

Margaret A. Katze, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of New Mexico, Albuquerque, New Mexico, appearing for Appellant.

C. Paige Messec, Assistant United States Attorney (John C. Anderson, United States Attorney, with her on the briefs), Office of the United States Attorney for the District of New Mexico, Albuquerque, New Mexico, appearing for Appellee.

Before BRISCOE, KELLY, and CARSON, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant-Appellant Archie Manzanares appeals from the district court's denial of his 28 U.S.C. § 2255 motion challenging his sentence under the Armed Career Criminal Act (ACCA). Because the district court granted a certificate of appealability (COA) as to one issue, we exercise jurisdiction under 28 U.S.C. § 2253. We affirm the denial of relief and deny Mr. Manzanares's motion to expand the COA.

I

On April 1, 2013, Mr. Manzanares pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and to possession of a controlled substance, in violation of 21 U.S.C. § 844. ROA, Vol. II at 11. His plea agreement provided for a 15-year sentence if the district court determined he was an armed career criminal. Id. at 12. On July 2, 2013, after concluding that Mr. Manzanares had at least three prior violent felonies and thus qualified as an armed career criminal, the district court imposed the 15-year sentence contemplated by the plea agreement. Id. , Vol. IV at 5.

Under the ACCA, an offense qualified as a violent felony by satisfying at least one of three definitions, which have come to be known as the Elements Clause, the Enumerated Clause, and the Residual Clause. See 18 U.S.C. § 924(e)(2)(B) ; United States v. Garcia , 877 F.3d 944, 946 (10th Cir. 2017), cert. denied , ––– U.S. ––––, 139 S. Ct. 1257, 203 L.Ed.2d 294 (2019). After Mr. Manzanares's conviction was final, the Supreme Court invalidated the Residual Clause as being unconstitutionally vague, see Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 2557, 2563, 192 L.Ed.2d 569 (2015) ( Johnson II ), and then made Johnson II applicable to cases on collateral review, see Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

In his timely Johnson II -based § 2255 motion, Mr. Manzanares asserted that without the Residual Clause, his underlying New Mexico convictions (armed robbery, aggravated assault with a deadly weapon, and aggravated battery) no longer qualified as violent felonies. The district court denied the motion, concluding that all three underlying convictions satisfy the Elements Clause. ROA, Vol. I at 184. It then granted a COA regarding the armed robbery conviction but denied a COA as to the other two convictions.¹ Id. at 186–87. Mr. Manzanares appeals the classification of the armed robbery conviction as a violent felony, and he seeks to expand the COA to allow him to appeal the decision regarding the aggravated assault with a deadly weapon and aggravated battery convictions.

II

The district court granted a COA on the issue of whether armed robbery in violation of N.M. Stat. Ann. § 30-16-2 satisfies the Elements Clause. We review the district court's legal rulings on a § 2255 motion de novo and its findings of fact for clear error. Garcia , 877 F.3d at 947–48. Whether a prior conviction satisfies the ACCA's violent felony definition is a legal question we review de novo. Id. at 948. The government bears the burden of proving a prior conviction qualifies under the ACCA. Id.

To determine this issue, we apply the "categorical approach," focusing on the elements of the crime of conviction, not the underlying facts. Id. The Elements Clause provides that a conviction is a "violent felony" if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). "[T]he phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ( Johnson I ) (emphasis in original).

We must first identify the minimum "force" required by state law for the crime of conviction, and second determine if that force categorically fits the definition of physical force. United States v. Ontiveros , 875 F.3d 533, 535–36 (10th Cir. 2017). "When construing the minimum culpable conduct required for a conviction, such conduct only includes that in which there is a realistic probability, not a theoretical possibility, the state statute would apply." Id. at 536 (internal quotation marks omitted).

N.M. Stat. Ann. § 30-16-2 provides as follows:

Robbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.

Whoever commits robbery is guilty of a third degree felony.

Whoever commits robbery while armed with a deadly weapon is, for the first offense, guilty of a second degree felony and, for second and subsequent offenses, is guilty of a first degree felony.

After the district court issued its decision in this case, this court decided Garcia , where we considered whether a conviction for third degree robbery under the same New Mexico robbery statute qualified as a violent felony under the Elements Clause. We held that third degree robbery "categorically matches the definition of ‘physical force’ the Supreme Court assigned in Johnson I " as it "has an element the use or threatened use of physical force against another person." Garcia , 877 F.3d at 956. In concluding that robbery under § 30-16-2 "is a violent felony under the ACCA's Elements Clause," id. , we emphasized that the "mere[ ] snatching [of property] without any resistance from the victim would not" satisfy "the element of force for robbery" under the New Mexico statute, id. at 954 (citing State v. Curley , 123 N.M. 295, 939 P.2d 1103, 1105 (N.M. Ct. App. 1997) ) (concluding that "when no more force is used than would be necessary to remove property from a person who does not resist, then the offense is larceny, and not robbery").

After Garcia was decided, the Supreme Court decided Stokeling v. United States , ––– U.S. ––––, 139 S. Ct. 544, 550, 202 L.Ed.2d 512 (2019), which held that the ACCA's Elements Clause "encompasses robbery offenses that require the criminal to overcome the victim's resistance." After issuing Stokeling , the Supreme Court denied certiorari in Garcia . See Garcia v. United States , ––– U.S. ––––, 139 S. Ct. 1257, 203 L.Ed.2d 294 (2019).

The government contends Stokeling and Garcia control the outcome in this case. Mr. Manzanares responds that Garcia was wrongly decided and that New Mexico robbery does not have as an element the use of physical force as described by Stokeling . We agree with the government that Stokeling and Garcia are controlling.

We acknowledge "[w]e cannot overrule the judgment of another panel of this court. We are bound by the precedent of prior panels absent en banc reconsideration or a superseding contrary decision by the Supreme Court." In re Smith , 10 F.3d 723, 724 (10th Cir. 1993) (per curiam). Further, "when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on ... subsequent panels of this Court, unless an intervening decision of the state's highest court has resolved the issue." Wankier v. Crown Equip. Corp. , 353 F.3d 862, 866 (10th Cir. 2003).

Garcia held that a conviction for simple robbery under § 30-16-2 satisfies the Elements Clause, and, as Mr. Manzanares concedes, interpreted the statute to require force that overcomes the victim's resistance. See Aplt. Br. at 21 ("As the Garcia panel acknowledged, numerous New Mexico cases expressly state that ‘any quantum of force which overcomes resistance would be sufficient to support a robbery conviction.’ ") (citing Garcia , 877 F.3d at 956 ). If simple robbery satisfies the Elements Clause, then necessarily armed robbery under the same statute would satisfy the Elements Clause. We are bound by Garcia 's interpretation of the New Mexico robbery statute, and we are unpersuaded by Mr. Manzanares's arguments urging us to reconsider its holdings.

First, Stokeling is not a superseding contrary Supreme Court decision. Rather than undermining Garcia 's result, Stokeling compels it. Stokeling holds that the amount of force sufficient to overcome a victim's resistance satisfies Johnson I 's force standard. 139 S. Ct. at 555 ; see also United States v. Ash , 917 F.3d 1238, 1242 (10th Cir. 2019), cert. filed , No. 18-9639 (June 12, 2019) (noting, after Stokeling , that "[t]he line is drawn, therefore, between robbery that can be accomplished by the mere snatching of property and robbery that requires overcoming even slight victim resistance"). And, as interpreted in Garcia , New Mexico's robbery statute distinguishes "robbery" from "larceny" using a nearly identical standard as Stokeling : "[R]obbery is committed when attached property is snatched or grabbed by sufficient force so as to overcome the resistance of attachment," Curley , 939 P.2d at 1105, but it is not committed by a "mere[ ] snatching ... without any resistance from the victim," Garcia , 877 F.3d at 954. See also State v. Martinez , 85 N.M. 468, 513 P.2d 402, 402 (N.M. Ct. App. 1973) (affirming robbery conviction where "there was more than a ‘mere snatching’ "); State v. Sanchez , 78 N.M. 284, 430 P.2d 781, 782 (N.M. Ct. App. 1967) (stating that the force used "must overcome the victim's resistance" and reversing a robbery conviction because facts were "comparable to those pickpocket or purse snatching cases").

To be sure, in Ash , we noted that the standard applied in G...