                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                           March 9, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 17-2168
                                               (D.C. Nos. 1:16-CV-00734-MCA-CG and
PETER ALLEN SARRACINO,                                 1:95-CR-00210-MCA-3)
                                                               (D.N.M.)
      Defendant - Appellant.
                      _________________________________

              ORDER DENYING CERTIFICATE OF APPEALABILITY*
                     _________________________________

Before LUCERO, O’BRIEN, MORITZ, Circuit Judges.
                  _________________________________

      Peter Sarracino seeks a certificate of appealability (“COA”) to appeal the

district court’s denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss

the appeal.

                                           I

      In 1996, Sarracino was convicted in federal court of kidnapping and second-

degree murder. He was found to be a career offender under U.S.S.G. § 4B1.1 (1995)1

based on the second-degree murder offense and prior convictions for assault with a


      *
         This order is not binding precedent, except under the doctrines of law of the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.
      1
        All citations to the Guidelines in this order refer to the 1995 version applied
at Sarracino’s sentencing.
dangerous weapon in federal court and voluntary manslaughter in New Mexico state

court. He received two concurrent life sentences. Sarracino’s subsequent challenges

to his conviction and sentence were unsuccessful.

      Following the Supreme Court’s decision in Johnson v. United States, 135 S.

Ct. 2551 (2015), which invalidated the “residual clause” of the Armed Career

Criminal Act (“ACCA”), id. at 2557, we granted Sarracino leave to file a successive

habeas motion. Sarracino argued that his sentence, which was imposed under the

then-mandatory Sentencing Guidelines, violated the Due Process Clause because his

second-degree murder conviction and two predicate offenses could not qualify as

“crimes of violence” without the residual clause. Adopting the recommendation of a

magistrate judge, the district court concluded that, Johnson notwithstanding, all three

crimes qualified as crimes of violence under the “elements clause” of § 4B1.2. The

district court also denied a COA. Sarracino now seeks a COA from this court.

                                           II

      Sarracino may not appeal the denial of habeas relief under § 2255 without a

COA. § 2253(c)(1)(B). We will issue a COA only if Sarracino demonstrates “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) (quotations omitted).

      Sarracino first argues that the district court should not have considered

whether federal second-degree murder qualifies as a crime of violence because the

                                            2
government failed to brief that issue. However, Rule 4(b) of the Rules Governing

Section 2255 Proceedings “empowers the court to dismiss meritless petitions on its

own without requiring any action by the government.” Hines v. United States, 971

F.2d 506, 509 (10th Cir. 1992). In a § 2255 proceeding, the movant bears the burden

of demonstrating the deprivation of a constitutional right. United States v. Kennedy,

225 F.3d 1187, 1197 n.6 (10th Cir. 2000). Sarracino was thus responsible for

convincing the district court that his second-degree murder conviction was not a

crime of violence, regardless of whether the government responded.

      We conclude that the district court appropriately assessed whether Sarracino’s

second-degree murder conviction qualified as a crime of violence under the elements

clause. At the time Sarracino was sentenced, the career offender Guidelines applied

if an adult defendant was convicted of a crime of violence after two prior felony

convictions for a crime of violence. U.S.S.G. § 4B1.1.2 Under the elements clause,

which remains valid following Johnson, see 135 S. Ct. at 2563, the term “crime of

violence” includes any felony offense that “has as an element the use, attempted use,

or threatened use of physical force against the person of another.” U.S.S.G.

§ 4B1.2(1)(i). To determine whether an offense qualifies, we “apply a categorical

      2
        Although the Supreme Court has concluded that its invalidation of ACCA’s
residual clause does not extend to the identically worded residual clause contained in
the advisory Guidelines, the Court has not decided whether the same reasoning
applies to sentences imposed when the Guidelines were mandatory. See Beckles v.
United States, 137 S. Ct. 886, 894 (2017); see also id. at 903 n.4 (Sotomayor, J.,
concurring) (noting that the majority opinion “leaves open the question whether
defendants sentenced to terms of imprisonment” when the Guidelines were
mandatory “may mount vagueness attacks on their sentences”). We assume without
deciding that such sentences are governed by Johnson.
                                          3
approach that looks only to the words of a statute and judicial interpretations of it,

rather than to the conduct of any particular defendant convicted of that crime.”

United States v. McConnell, 605 F.3d 822, 825 (10th Cir. 2010) (quotations omitted).

      Federal second-degree murder is any unlawful killing of a person with malice

aforethought that does not qualify as first-degree murder. United States v. Pearson,

203 F.3d 1243, 1271 (10th Cir. 2000). The malice aforethought element can be

satisfied by proving: “(1) intent-to-kill without the added ingredients of

premeditation and deliberation; (2) intent to do serious bodily injury; (3) a depraved-

heart; or (4) commission of a felony when the crime does not fall under . . . first

degree murder.” Id.

      Sarracino argues that this offense does not qualify under the elements clause

because murder can be achieved through the indirect application of force—by, for

example, placing a barrier in front of a car or exposing a victim to hazardous

chemicals. But in United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017), we

concluded that a prior line of cases holding “that indirect force is not an application

of physical force . . . is no longer good law” and thus ACCA’s use of the phrase

“physical force” includes force “applied directly or indirectly.” Id. at 538 (quotations

omitted) (citing United States v. Castleman, 134 S.Ct. 1405, 1414 (2014), and United

States v. Perez-Vargas, 414 F.3d 1282, 1286 (10th Cir. 2005)).

      Sarracino also contends that second-degree murder can be committed

recklessly, but this observation does not help him. “[A] statute requiring proof only

that the defendant acted willfully and with reckless disregard for the risk posed by

                                            4
that act to another person may categorically involve the use of physical force.”

United States v. Pam, 867 F.3d 1191, 1208 (10th Cir. 2017). Although we previously

held that reckless offenses did not qualify as crimes of violence under ACCA, we

have since concluded that the Supreme Court effectively overruled this holding. Id.

at 1207 (citing Voisine v. United States, 136 S. Ct. 2272, 2016), and United States v.

Duran, 696 F.3d 1089, 1095 (10th Cir. 2012)).3

      Finally, Sarracino challenges the district court’s conclusion that his New

Mexico manslaughter conviction qualifies as a crime of violence on the same bases.

He again argues that the crime can be committed through reckless conduct or through

indirect means. We reject these contentions for the same reasons noted above.4

                                          III

      For the foregoing reasons, a COA is DENIED and the appeal is DISMISSED.


                                           Entered for the Court


                                           Carlos F. Lucero
                                           Circuit Judge




      3
        Both Ontiveros and Pam concerned the elements clause of ACCA rather than
the mandatory Guidelines. But the two clauses are identical, and Sarracino does not
provide any basis for treating them differently.
      4
        Although he argued the issue below, Sarracino does not challenge the district
court’s conclusion that his federal assault with a dangerous weapon conviction
qualifies as a crime of violence.
                                           5
