                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                      UNITED STATES COURT OF APPEALS December 12, 2019
                                                                     Elisabeth A. Shumaker
                                     TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                              No. 19-1179
 v.                                                 (D.C. Nos. 1:18-CV-01319-WJM
                                                      and 1:16-CR-00218-WJM-1)
 MICHAEL DARRYL HARDEN,                                        (D. Colo.)

               Defendant-Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before MATHESON, McKAY, and BACHARACH, Circuit Judges.


       Appellant Michael Harden, representing himself pro se, seeks a certificate of

appealability to appeal the district court’s denial of his 28 U.S.C. § 2255 habeas motion.

       Appellant pled guilty to violating 18 U.S.C. § 924(c)(1)(A) by using a firearm

during and in relation to a crime of violence, specifically “the crime of Bank Robbery, in

violation of 18 U.S.C. § 2113(a).” (R. vol. I at 78.) On May 30, 2017, he was sentenced

to a term of imprisonment of 84 months.

       On May 29, 2018, Appellant filed a timely § 2255 motion in which he argued that


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
his conviction and sentence should be vacated because they might have been based on

“the now unconstitutionally vague § 924(c)(3)(B) Residual ‘Risk of Force’ Clause.” (Id.

at 129.) The district court denied his motion on several grounds, including the ground

that bank robbery under § 2113(a) is categorically a crime of violence without reference

to the invalidated residual clause because it has as an element the use, attempted use, or

threatened use of force. See United States v. McCranie, 889 F.3d 677 (10th Cir. 2018).

       In his motion for a certificate of appealability, Appellant argues that, because

§ 2113(a) may be committed by entering a bank with the intent to commit larceny, which

does not have as an element the use of force, his conviction under § 924(c) may have

been unconstitutionally based on the residual clause rather than the elements clause.

However, § 2113(a) is divisible, including both bank robbery by force, violence, or

intimidation and the separate offense of entering or attempting to enter a bank building

with intent to commit a felony or larceny. See United States v. Rinker, 746 F. App’x 769,

772 (10th Cir. 2018). Under the “modified categorical approach,” we may look to the

charging documents and written plea agreement to determine which portion of this

divisible statute formed the basis for Appellant’s conviction. United States v. Ridens, 792

F.3d 1270, 1272 (10th Cir. 2015). Here, these documents make clear that the underlying

crime that formed the basis for Appellant’s § 924(c) conviction was bank robbery by

force, violence, and intimidation. And this portion of § 2113(a) is categorically a crime

of violence under the elements clause. See McCranie, 889 F.3d at 679–81.


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       Appellant also argues that, because the trial court did not explain which § 924(c)

clause it relied on, the rule of lenity and the Due Process Clause require us to vacate his

conviction and sentence because there is a possibility that the court might have relied on

the now-invalidated residual clause even though it could have permissibly based his

conviction on the force clause. However, we have rejected the argument that a defendant

need only show that the district court “could have relied on the residual clause.” United

States v. Washington, 890 F.3d 891, 896 (10th Cir. 2018) (internal quotation marks

omitted). Rather, “the burden is on the defendant to show by a preponderance of the

evidence—i.e., that it is more likely than not—” that the court relied on the residual

clause. Id. Appellant’s argument that either clause could have applied at the time of his

conviction and sentencing is insufficient to carry this burden.

       We are persuaded that reasonable jurists would not debate the district court’s

decision to deny Appellant’s habeas motion. See Slack v. McDaniel, 529 U.S. 473, 484

(2000). We therefore DENY Appellant’s request for a certificate of appealability and

DISMISS the appeal. Appellant’s motion for leave to proceed in forma pauperis on

appeal is GRANTED.


                                                   ENTERED FOR THE COURT



                                                   Monroe G. McKay
                                                   Circuit Judge


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