                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COURT OF APPEALS                    July 2, 2018
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

 v.                                                      No. 18-8002
                                               (D.C. Nos. 2:16-CV-00124-ABJ
 BRENT EUGENE SANCHEZ,                             2:04-CR-00055-ABJ-1)
                                                          (D. Wyo.)
               Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.


      Brent Eugene Sanchez seeks a certificate of appealability (“COA”) to

challenge the district court’s order denying his motion under 28 U.S.C. § 2255.

However, through his counsel, Mr. Sanchez admits that his application for a COA

must fail because this court has recognized the abrogation of the line of cases

upon which Mr. Sanchez’s bid for relief depends. We deny Mr. Sanchez’s

application for a COA and dismiss this matter.




      *
              This order is not binding precedent except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                           I

      In March 2004, Mr. Sanchez was charged in a seven-count indictment with

crimes related to assaulting various victims with a firearm on an Indian

reservation. Mr. Sanchez ultimately pleaded guilty to two counts of violating 18

U.S.C. § 924(c)(1)(A), which prohibits using or carrying a firearm in furtherance

of, inter alia, a crime of violence. The alleged crime of violence in question was

violating W YO . S TAT . A NN . § 6-2-502(a)(iii), which states that: “A person is

guilty of aggravated assault and battery if he . . . [t]hreatens to use a drawn

deadly weapon on another unless reasonably necessary in defense of his person,

property or abode or to prevent serious bodily injury to another.” See R. at 43, 44

(Mr. Sanchez’s indictment, which lists W YO . S TAT . A NN . § 6-2-502(a)(iii) as the

crime of violence Mr. Sanchez was committing with respect to the counts to

which he pleaded guilty). In exchange for his guilty plea, the remaining counts

were dismissed. The district court sentenced Mr. Sanchez to sixty months’

imprisonment for the first count to which he pleaded guilty, and 232 months’

imprisonment for the second, with the two terms of imprisonment to run

consecutively. R. at 54 (Judgment, dated Aug. 30, 2004). Mr. Sanchez did not

appeal his conviction or sentence.

      In May 2016, following the Supreme Court’s decisions in Johnson v.

United States, --- U.S. ----, 135 S. Ct. 2551 (2015), and Welch v. United States, --

- U.S. ----, 136 S. Ct. 1257 (2016), Mr. Sanchez filed his present § 2255 motion.

                                           2
Mr. Sanchez argued that Johnson invalidated § 924’s residual clause, and that he

had been sentenced under that clause. The motion also argued that Mr. Sanchez’s

§ 924 convictions could not stand under the statute’s elements clause. The

district court denied Mr. Sanchez’s § 2255 motion and denied a COA. R. at 158

(Order, dated Nov. 29, 2017). Mr. Sanchez now applies to this court for a COA.

                                         II

      “The issuance of a COA is a jurisdictional prerequisite to an appeal from

the denial of an issue raised in a § 2255 motion.” United States v. Gonzales, 596

F.3d 1228, 1241 (10th Cir. 2010); see also 28 U.S.C. § 2253(c)(1)(B). The

district court denied Mr. Sanchez’s claim on the merits. When “a district court

has rejected the constitutional claims on the merits, the showing required to

satisfy 28 U.S.C. § 2253(c) is straightforward: The petitioner must demonstrate

that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484

(2000).

                                         III

      Section 924(c)(1)(A) prescribes mandatory minimum sentences for

individuals “who, during and in relation to any crime of violence or drug

trafficking crime . . . for which the person may be prosecuted in a court of the

United States, uses or carries a firearm, or who, in furtherance of any such crime,




                                          3
possesses a firearm[.]” 1 In turn, § 924(c)(3) defines the term “crime of violence”

to mean:

             an offense that is a felony and–

             (A) has as an element the use, attempted use, or threatened use
             of physical force against the person or property of another, or

             (B) that by its nature, involves a substantial risk that physical
             force against the person or property of another may be used in
             the course of committing the offense.

      Subsection (A) is § 924’s elements clause, and subsection (B) is the

statute’s residual clause. In United States v. Salas, 889 F.3d 681 (10th Cir. 2018),

we held that § 924’s residual clause was unconstitutionally vague. The district

court, in denying Mr. Sanchez’s § 2255 motion, nevertheless found that W YO .

S TAT . A NN . § 6-2-502(a)(iii) counted as a crime of violence under the elements

clause.

      In his § 2255 motion and related briefing, Mr. Sanchez argued that W YO .

S TAT . A NN . § 6-2-502(a)(iii) does not define a crime of violence under the

elements clause because a person could be liable under § 6-2-502(a)(iii) for

threatening another person with “a noxious chemical,” such as acid or mace. R.

at 12. Under this circuit’s holding in United States v. Rodriguez-Enriquez, 518


      1
               Section 924(c) sets forth a five-year mandatory minimum sentence
for a first offense, and a twenty-five-year mandatory minimum for a “second or
subsequent conviction,” and also requires that terms of imprisonment for multiple
violations should run with each other consecutively rather than concurrently. 18
U.S.C. § 924(c)(1)(A)S(D).

                                          4
F.3d 1191, 1194 (10th Cir. 2008), abrogation recognized by United States v.

McCranie, 889 F.3d 677, 679 (10th Cir. 2018), Mr. Sanchez argued that this kind

of threatened use of force (i.e., threatened use of chemical, rather than

mechanical, force) was insufficient to expose him to liability under the elements

clause. The district court rejected Mr. Sanchez’s argument based on Rodriguez-

Enriquez, finding that case (as well as other cases standing for the same

proposition—viz., that only mechanical force qualifies as the use or threatened

use of physical force) was inapplicable in light of the Supreme Court’s recent

decision in United States v. Castleman, --- U.S. ----, 134 S. Ct. 1405 (2014). R.

at 151S57.

      In Rodriguez-Enriquez, this court considered the definition of “crime[s] of

violence” under § 2L1.2 of the Sentencing Guidelines. 518 F.3d at 1192. The

application note to § 2L1.2 defined this term to encompass “any offense under

federal, state, or local law that has as an element the use, attempted use, or

threatened use of physical force against the person of another.” Id. (quoting U.S.

S ENTENCING G UIDELINES M ANUAL § 2L1.2, cmt. n.1(B)(iii) (U.S. S ENTENCING

C OMM ’ N 2007)). We interpreted the term “physical force,” distinguishing

between force that is the result of “mechanical impact,” and that which “is

achieved by chemical action,” such as poisoning. Id. at 1194. The former,

mechanical kind of force qualified as physical force against the person of another;

the latter, chemical kind did not.

                                           5
      However, following the Supreme Court’s decision in Castleman, we have

recognized that Rodriguez-Enriquez is no longer good law. We first recognized

Rodriguez-Enriquez’s abrogation in United States v. Ontiveros, 875 F.3d 533, 536

(10th Cir. 2017), holding that: “The government argues, and we agree, that

[United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005)] and Rodriguez-

Enriquez relied on reasoning that is no longer viable in light of Castleman.” We

noted Castleman’s holding that “knowing or intentional causation of bodily injury

necessarily involves the use of physical force,” as well as that case’s

determination that poisoning a victim involves the use of physical force against

the person of another. Ontiveros, 875 F.3d at 536 (quoting Castleman, 134 S. Ct.

at 1414).

      In the present case, Mr. Sanchez admits (through counsel) that his argument

for relief “is dependent on this Court’s holding in Rodriguez-Enriquez.” Aplt.’s

Opening Br. at 7. He concedes that, because we are bound by our holding in

Ontiveros, we must deny him a COA. Id. (“This Court held in Ontiveros, that

Rodriguez-Enriquez is no longer good law. Accordingly, this Court is bound by

precedent to deny Mr. Sanchez’s request for a COA.” (citations omitted)). Mr.

Sanchez is correct on this point—we are not at liberty to reconsider the holding of

Ontiveros, and as such, reasonable jurists would not find debatable the district

court’s conclusion that Castleman forecloses the theory of relief Mr. Sanchez

propounded under the Rodriguez-Enriquez line of cases. See Green Sol. Retail,

                                          6
Inc. v. United States, 855 F.3d 1111, 1115 (10th Cir. 2017) (“[W]e are bound by

the precedent of prior panels absent en banc reconsideration or a superseding

contrary decision by the Supreme Court.” (quoting Barnes v. United States, 776

F.3d 1134, 1147 (10th Cir. 2015))); accord United States v. Nichols, 169 F.3d

1255, 1261 (10th Cir. 1999). Mr. Sanchez nonetheless applies for a COA in order

to preserve the salient issues in his case for further review. In light of Mr.

Sanchez’s concession that he is not entitled to a COA, and our assessment of the

controlling precedent, we now deny Mr. Sanchez a COA.

                                          IV

      For the reasons above, we DENY Mr. Sanchez a COA and DISMISS this

matter.

                                               Entered for the Court



                                               JEROME A. HOLMES
                                               Circuit Judge




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