                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                     December 18, 2017

                                                                         Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                           Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-2019

PHILLIP ANGEL GARCIA,

      Defendant - Appellant.
                      _________________________________

                   Appeal from the United States District Court
                           for the District of New Mexico
            (D.C. Nos. 1:16-CV-00240-JB-LAM & 1:07-CR-00788-JB-1)
                       _________________________________

Submitted on the briefs:*

Michael A. Keefe, Assistant Federal Public Defender, Albuquerque, New Mexico, for
Appellant.

James D. Tierney, Acting United States Attorney, James R.W. Braun, Assistant United
States Attorney, Albuquerque, New Mexico, for Appellee.
                       _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and O’BRIEN, Circuit Judges.
                 _________________________________

O’BRIEN, Circuit Judge.
                     _________________________________

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
      More snow is here added to the Johnson avalanche. Johnson v. United States,

135 S. Ct. 2551 (2015) (Johnson II). In what has become a common refrain in a host

of diverse circumstances, Phillip Angel Garcia claims the New Mexico robbery

statute does not satisfy the element of violent physical force necessary for an ACCA

sentencing enhancement. He is wrong; it does.

                                 I. BACKGROUND

      Garcia originally pled guilty to one count of possessing a firearm and

ammunition after having been convicted of a felony, a violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). He moved to withdraw his guilty plea, but the judge

denied the motion. His crime carried a prison term of up to 10 years, id. § 924(a)(2),

but because he had three or more prior “violent felony” convictions, the Armed

Career Criminal Act of 1984 (ACCA) increased his punishment range to a mandatory

15 years to life. Id. § 924(e)(1). In 2008, the judge sentenced him to a prison term of

188 months. He appealed; we affirmed. United States v. Garcia, 577 F.3d 1271,

1273 (10th Cir. 2009). That appeal did not raise the ACCA issue, this one does.

       As noted, the ACCA mandates an enhanced sentence of imprisonment of not

less than 15 years when the violator of § 922(g) has “three previous convictions . . .

for a violent felony.” 18 U.S.C. § 924(e)(1). To fall within the definition of a

violent felony, a prior conviction must be “punishable by imprisonment for a term

exceeding one year,” id. § 924(e)(2)(B), and must satisfy one of three predicates:




                                           2
      (1) Under the Elements Clause, it must have “as an element the use, attempted

use, or threatened use of physical force against the person of another,”

§ 924(e)(2)(B)(i);

      (2) Under the Enumerated-Offenses Clause, it must be a categorical match to

the generic offenses of “burglary, arson, or extortion,” § 924(e)(2)(B)(ii); or

      (3) Under the Residual Clause, it must “otherwise involve[] conduct that

presents a serious potential risk of physical injury to another,” id.

United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017), petition for cert. filed

(U.S. Apr. 4, 2017) (No. 16-8616).

      The Presentence Report concluded Garcia should be sentenced under the

ACCA, using three of his prior felony convictions—arson, residential burglary, and

possession of a deadly weapon by a prisoner—each of which it identified as a violent

felony. The PSR also listed his other prior convictions, including a third-degree

robbery conviction under N.M. Stat. Ann. § 30-16-2.

      It calculated Garcia’s advisory Guideline sentencing range at 188 to 235

months. The judge adopted the PSR’s findings and sentenced Garcia at the bottom of

this range, 188 months of imprisonment, to be followed by a three-year term of

supervised release.

      In 2015, the Supreme Court decided Johnson II. The Court held because the

Residual Clause was unconstitutionally vague, “imposing an increased sentence

under the residual clause . . . violates the Constitution’s guarantee of due process.”



                                            3
Johnson II, 135 S. Ct. at 2563. It left intact the Elements and Enumerated-Offenses

Clauses. Id.

      On March 30, 2016, Garcia filed a § 2255 motion contending his sentence was

unconstitutional under Johnson II. He claimed one of his three predicate convictions,

possession of a deadly weapon by a prisoner, only qualified as a violent felony under

the then defunct Residual Clause.

      The government conceded this point, but argued the (later declared and

retroactively applied) error was harmless, because, even without the weapon

possession conviction Garcia had three qualifying prior violent felony convictions:

a conviction for burglary, an arson conviction, and a New Mexico robbery

conviction. The robbery conviction, it said, qualified as a violent felony under the

Elements Clause and was an apt substitution for the conviction for unlawful weapon

possession.

      The government’s argument presented several complications. In the original

sentencing the judge had not expressly relied on the New Mexico robbery conviction

as an ACCA qualifying conviction. And in Johnson v. United States, 559 U.S. 133

(2010) (Johnson I), the Supreme Court had concluded “physical force” under the

Elements Clause “means violent force—that is, force capable of causing physical

pain or injury to another person.” Id. at 140. Mere offensive touching, for example,

does not suffice. See id. at 139-42. The government argued Garcia’s robbery

conviction qualified under this standard because the use of violent force was a

necessary element of New Mexico robbery. Alternatively, it argued against applying

                                           4
the Johnson I standard retroactively to Garcia’s robbery conviction. Garcia contested

these arguments.

      Before the judge decided Garcia’s § 2255 motion, the government changed

course. It withdrew its argument about the applicability of Johnson I and conceded

“New Mexico’s robbery can be committed without force causing physical pain or

injury.” R., Vol. 4 at 57. This meant the robbery conviction did not qualify as a

violent felony under the ACCA’s Elements Clause after all. After that concession the

Probation Office also revisited its position; it filed a Revised Sentencing

Memorandum in which it stated Garcia’s robbery conviction was not a violent felony

and he was therefore eligible for resentencing.

      On the same day the judge entered his Memorandum Opinion and Order, the

government filed a supplemental brief in which it again reversed course. Citing our

recently published decision in Harris, 844 F.3d 1260, the government’s second

revised position was that the “New Mexico robbery in the third degree is indeed a

qualifying violent felony under the ‘force clause’ [or “Elements Clause”] of

18 U.S.C. § 924(e)(2)(B)(i).” R., Vol. 4 at 158. It does not appear the judge

considered this supplemental brief in reaching a decision.

      He agreed with Garcia in part; the weapon conviction did not qualify as a

predicate offense under Johnson II. But, he said, the error was harmless because the

New Mexico robbery conviction could instead serve as his third predicate conviction

because N.M. Stat. Ann. § 30-16-2, which prohibits theft by use or threatened use of

force or violence, qualified as a violent felony under the Elements Clause as

                                           5
interpreted by Johnson I. Garcia therefore had three qualifying predicate violent

felonies under the ACCA.

      The judge denied the § 2255 motion. In a separate order, he denied Garcia’s

request for a Certificate of Appealability (COA). We later granted a COA and now

affirm.

                                  II. DISCUSSION

      1. Standard of Review and Applicable Law

      “We review the district court’s legal rulings on a § 2255 motion de novo and

its findings of fact for clear error.” Harris, 844 F.3d at 1263 (brackets and internal

quotation marks omitted). “Whether a prior conviction satisfies the ACCA’s violent

felony definition is a legal question we review de novo.” United States v. Titties,

852 F.3d 1257, 1263 (10th Cir. 2017). “[T]he Government bears the burden of

proving a prior conviction qualifies under the ACCA,” see id. at 1272 n.19, and it is

the government’s burden to prove the Residual Clause error was harmless, see

generally O’Neal v. McAninch, 513 U.S. 432, 437-45 (1995) (stating burden of

proving harmlessness of error affecting defendant’s substantial rights lies with

government).

      To determine this issue, “we apply the categorical approach, focusing on the

elements of the crime of conviction, not the underlying facts.” Harris, 844 F.3d at

1263. Thus, we must determine whether the New Mexico robbery statute “has as an

element the use, attempted use, or threatened use of physical force against the person

of another.” Id. at 1263-64 (quoting § 924(e)(2)(B)(i)).

                                           6
      This inquiry requires application of both federal law and [New Mexico]
      state law. Federal law defines the meaning of the phrase “use, attempted
      use, or threatened use of physical force” in § 924(e)(2)(B)(i). And state law
      defines the substantive elements of the crime of conviction. . . .
      A two-step inquiry resolves whether [New Mexico’s] robbery statute
      requires physical force as that term is used in the ACCA: we must identify
      the minimum “force” required by [New Mexico] law for the crime of
      robbery and then determine if that force categorically fits the definition of
      physical force. The Supreme Court has reminded us that in construing the
      minimum culpable conduct, such conduct only includes that in which there
      is a realistic probability, not a theoretical possibility, the state statute would
      apply. Decisions from the state supreme court best indicate a realistic
      probability, supplemented by decisions from the intermediate-appellate
      courts.
Harris, 844 F.3d at 1264 (citations and internal quotation marks omitted).

      2. New Mexico’s Robbery Statute

      The New Mexico robbery statute provides:

      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.1

      1
        In United States v. Lujan, 9 F.3d 890, 891-92 (10th Cir. 1993), we considered
whether the defendant’s prior New Mexico robbery conviction qualified as a violent
felony for ACCA purposes. In a single-sentence analysis, we stated “[t]he
New Mexico robbery statute . . . contains the required element of force [because]
‘[r]obbery 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.’” Id. at 892 (emphasis omitted) (quoting N.M. Stat. Ann. § 30-16-2
(1978)).

        Lujan did not discuss or determine the issue the Supreme Court resolved in
Johnson I: the minimum necessary quantum of force which qualifies as “physical
force” for purposes of a “violent felony” conviction as defined in the ACCA. Nor
did it scrutinize the elements of New Mexico robbery under that standard. See
Harris, 844 F.3d at 1266 (“It is what is required by the ‘use of force, threats, or
intimidation’ element [in the Colorado robbery statute] that is at the center of this
appeal.” (emphasis added)). We are therefore not bound by the result or analysis in
                                                                             (continued)
                                              7
      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.
N.M. Stat. Ann. § 30-16-2.2

      A third-degree robbery conviction under this statute includes two essential

elements: (1) the theft of anything of value, from the person of another or from the

immediate control of another; (2) by the use or threatened use of force or violence.3


Lujan. Cf. United States v. Hathaway, 318 F.3d 1001, 1006 (10th Cir. 2003)
(“Although we are bound by the precedent of prior panels, a superseding contrary
decision by the Supreme Court always controls our analysis.” (internal quotation
marks omitted)).
      2
        The statute provides for both third degree robbery, and for first or second
degree robbery when the offender is armed with a deadly weapon. The parties agree
Garcia was convicted of third degree robbery, so we only address that statutory
provision.
      3
         The parties do not argue that the alternate language contained in the first
element (theft of an object from a person, as opposed to theft of an object in the
person’s immediate control) defines separate crimes. And although it appears there
are four different means of satisfying the second element (use of force, use of
violence, threatened use of force, and threatened use of violence), the parties do not
ask us to treat these as separate crimes for the purpose of our analysis. In fact,
Garcia focuses entirely on the actual use of force or violence and presents no
argument at all concerning whether the “threatened use of force” or “threatened use
of violence” would satisfy the ACCA’s definition. We therefore decline to consider
the issue. See Harris, 844 F.3d at 1271 (Ebel, J., concurring, stating where neither
the defendant nor the government addressed threat or intimidation language in
Colorado robbery statute, it was unnecessary to reach the issue). This leaves the two
other apparent means of satisfying the second element: use of force, and use of
violence. But the parties agree these terms are used interchangeably in the statute
and “do not substantively state an alternative means of committing the offense.”
State v. Curley, 939 P.2d 1103, 1104 (N.M. Ct. App. 1997). We accept the
concession, which leaves us free of a “divisible” statute problem; we may simply
apply the categorical approach to examine the prohibited use of force or violence.

                                           8
Under the categorical approach, we focus on “the least of the acts criminalized”

under the state statute. Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013) (emphasis

added) (brackets and internal quotation marks omitted).

      3. Supreme Court’s Definition of “Physical Force”

      We will address the New Mexico courts’ construction of § 30-16-2, but first

we look to the Supreme Court’s discussion of “physical force” for purposes of the

Elements Clause in § 924(e)(2)(B)(i). It provides the groundwork for evaluating the

New Mexico statute. See Harris, 844 F.3d at 1264.

      In Johnson I, the Court determined “the phrase ‘physical force’ means violent

force—that is, force capable of causing physical pain or injury to another person.”

Johnson I, 559 U.S. at 140. The Court acknowledged that for common-law battery

the “force” element could be “satisfied by even the slightest offensive touching.” Id.

at 139. But, it said, the ACCA demands more. The proper definition of the term as

used in the ACCA (taken in the context of defining a violent felony) did not suggest

Congress intended to adopt a de minimis, common-law meaning for purposes of the

Elements Clause. Id. at 139-40. Instead, the Court emphasized the clear

“connotation of strong physical force” in the ACCA’s statutory language. Id. at 140.

As an example of physical or violent force which would amount to more than mere

offensive touching, the Johnson I Court identified “a slap in the face.” 559 U.S. at

143. In a later case, United States v. Castleman, 134 S. Ct. 1405 (2014), Justice

Scalia, Johnson I’s author, provided additional examples of actions which exceed

“mere offensive touching” and, similar to a slap in the face, are “capable of causing

                                           9
physical pain or injury.” Id. at 1421 (Scalia, J., concurring). He cited “hitting,

slapping, shoving, grabbing, pinching, biting, and hair pulling.” Id. (brackets and

internal quotation marks omitted).4 Reduced to its essence the ACCA requires

violent physical force. Here there is no physical force debate, only the requirement

of violent force—force capable of causing injury or pain. Significantly, the Court’s

definition of “violent force” does not require the force used to actually cause physical

pain or injury, only that it be capable of doing so. Id. We will later return to that

salient point.

       4. United States v. Harris

       Our recent Harris decision provides an analytical template. In it we applied

the ACCA’s “physical force” standard to a Colorado robbery statute (with elements

very similar to those of N.M. Stat. Ann. § 30-16-2). See Harris, 844 F.3d at 1266.

The Colorado Statute required the defendant “[1] knowingly [took] anything of value

from the person or presence of another [2] by the use of force, threats, or

intimidation.” Id. (quoting Colo. Rev. Stat. § 18-4-301(1) (2016) (emphasis

omitted)). We looked at Colorado decisions to discover how the statute is construed

and applied in actual cases, “where the rubber meets the road.”

       In reaching this result, we cited People v. Borghesi, 66 P.3d 93, 99

(Colo. 2003) (en banc), a double-jeopardy case in which the Colorado Supreme Court

       4
         Although a concurring opinion is not binding on us, we may consider it for
its persuasive value. See Bryan A. Garner, et al., The Law of Judicial Precedent 183
(2016). We find Justice Scalia’s concurrence in Castleman persuasive on the
quantum of force required to constitute “violent” force.

                                           10
discussed whether Colorado robbery is a crime against the person or against property.

The Borghesi court noted the common-law definition of robbery employed by the

Colorado legislature, noting “it is the ‘violence’ that distinguishes common law

larceny from robbery” and “‘the gravamen of the offense of robbery is the violent

nature of the taking.’”5 Harris, 844 F.3d at 1266-67 (quoting Borghesi, 66 P.3d

at 99, 100-01). Relying on this language, we concluded robbery in Colorado

“categorically matches the definition of physical force assigned by the Supreme

Court in Johnson I.” Harris, 844 F.3d at 1268 (internal quotation marks omitted).

      5. New Mexico Case Law

      Since Johnson I, some federal circuit courts have decided a robbery statute

which criminalizes the use of any physical force, however minimal, to overcome the

victim’s resistance and seize her property—including merely grabbing the victim’s

purse or bumping, nudging, or jostling the victim in order to obtain it—does not meet

the violent force required by the ACCA. See, e.g., United States v. Yates, 866 F.3d

723, 730-31 (6th Cir. 2017) (collecting cases). By contrast, convictions under

robbery statutes requiring more than minimal actual force are violent felonies.

See id. at 731-32. The question is, on which side of this line does § 30-16-2 fall?

      That, of course, depends on how New Mexico courts have applied the statutory

language. Honoring the Harris protocol, we now undertake that analysis, starting

with the general and then moving to the specific. In Harris, we found strongly

      5
        Unlike the New Mexico statute, the Colorado statute did not use the word
“violence”.

                                          11
persuasive the Colorado Supreme Court’s statement “robbery in Colorado requires a

‘violent taking,’” which we determined was “consistent with the physical force

required by the ACCA’s elements clause.” Harris, 844 F.3d at 1266.

      The government finds an analogue to the Colorado case, Borghesi, in the New

Mexico Supreme Court’s case of State v. Bernal, 146 P.3d 289 (N.M. 2006). As in

Borghesi, the New Mexico court in Bernal set out to determine whether a defendant

may lawfully be convicted for more than one count of robbery by attempting to take

the same property from more than one person. Id. at 293. As did the Colorado

Supreme Court, the New Mexico Supreme Court, relying in part on prior New

Mexico cases,6 resolved the matter by asking whether robbery is a crime against

property or against persons. And, like the Colorado Supreme Court, the New Mexico

Supreme Court concluded its robbery statute protects persons. See id. at 296

(“Robbery is not merely a property crime, but a crime against a person.”).

      In reaching these conclusions, the New Mexico Supreme Court discussed the

nature of robbery under New Mexico law in terms very similar to those used by the

Colorado Supreme Court in Borghesi. The court repeatedly referred to “violence” as

a distinguishing characteristic of a robbery offense, stating “robbery is a crime

designed to punish the use of violence” and “the robbery statute clearly is designed to

      6
        Garcia notes that Bernal post-dates his robbery conviction. He argues to the
extent Bernal departs from prior New Mexico cases, it did not define the crime of
robbery at the time of his prior conviction and therefore should not be considered in
interpreting the quantum of force. But Bernal did not so much depart from those
prior New Mexico cases as it interpreted them. We therefore find this argument
without merit.

                                           12
protect citizens from violence.” Id. It is “distinct from larceny because it requires,

and is designed to punish, the element of force.” Id.

      Harris and Bernal provide strong persuasive authority in favor of concluding

§ 30-16-2 is a crime involving violent force. But they are not dispositive of the

question. Bernal does not provide a specific discussion of the quantum of force

required to satisfy the statute. Also, our inquiry is statute-specific and requires more

than mere reliance on Harris’s discussion of Colorado law. Unlike the Colorado law

summarized in Harris, New Mexico has issued several nuanced decisions specifically

addressing the quantum of force required for a robbery conviction. We must

carefully consider these cases.

      The only published New Mexico Supreme Court case offering direct guidance

appears to be State v. Clokey, 553 P.2d 1260, 1260 (N.M. 1976). In Clokey, the New

Mexico Supreme Court held “the evidence supported the verdict of the jury that the

snatching of the purse was accompanied by force sufficient to convert the crime from

larceny to robbery.” Id. (emphasis added). Unfortunately, in its terse decision, the

New Mexico Supreme Court did not discuss the specific facts, instead referring only,

and quite generically, to the unquoted facts recited in the defendant’s docketing

statement. See id.

      Recently, however, a judge of the United States District Court for the District

of New Mexico located and quoted from the forty-year-old docketing statement cited

in Clokey. The government does not challenge Garcia’s use of and quotation from

this factual statement, which reads as follows:

                                           13
      [t]he complaining witness was walking toward the [d]efendant and was
      carrying a purse under her left arm. The purse was not fastened to her
      person, nor was it in the grasp of her hand. The [d]efendant allegedly ran
      toward the complaining witness and with his left hand pushed the purse
      through the woman’s arm, grabbed the purse and ran. It is alleged that in
      so doing the [d]efendant touched the inside of the woman’s arm, causing
      the woman to stumble. The woman was in her seventies and tottered
      unsteadily when she walked. There was no resistance offered by the
      woman whose purse was taken; there was no struggle for the purse; and the
      [d]efendant, in the complaining witness’s words, “snatched” the purse in
      one continuous motion and ran.
United States v. King, 248 F. Supp. 3d 1062, 1070 (D.N.M. 2017) (quoting

New Mexico v. Clokey, No. 2479, Docketing Statement at 1-2 (N.M. App. filed

Mar. 22, 1976)). In the absence of objection we will take judicial notice of the facts

the District of New Mexico quoted in King.

      This statement of facts indicates the defendant “touched” the inside of the

woman’s arm. We know that mere “touching” is insufficient to satisfy the violent

force standard. Johnson I, 559 U.S. at 139-40. On the other hand, the “touch” was

forceful enough to cause the victim to stumble, and the defendant “pushed the purse

through the woman’s arm.” Could this quantum of force represent a “shov[e]” or a

“grab[]” capable of causing physical pain or injury? Castleman, 134 S. Ct. at 1421

(internal quotation marks omitted).7 We are doubtful, but it may have been a force

capable of causing pain or injury by setting in motion a chain of events leading to



      7
        Justice Scalia’s concurring opinion included grabbing and shoving as
examples of violent force. His examples, while persuasive, are not included in the
majority opinion. See note 4, supra.


                                          14
that result.8 The force used was sufficient for the assailant to seize a purse from the

victim and, quite predictably, it was sufficient to cause her to stumble. On the other

hand, Clokey may be viewed as involving mere jostling of the victim to dislodge her

property rather than the use of “violent force” sufficient to satisfy Johnson I and the

ACCA violence standard. See, e.g., Yates, 866 F.3d at 733-34 (concluding Ohio

robbery does not constitute a crime of violence, because snatching a purse without

any resistance from the victim can constitute sufficient use of force to violate the

statute).

       The lack of an express analysis by the New Mexico Supreme Court in Clokey

leaves us uncertain. The court viewed the facts in the light most favorable to the

state, Clokey, 553 P.2d at 1260, but we do not know which facts it found sufficiently

persuasive to support its conclusion that the statutory “force or violence” element

was satisfied. A more detailed analysis would have been useful. In addition, as we

will see, Clokey’s summary result does not address the nuanced approach adopted in

later, more precisely reasoned New Mexico cases. Since Clokey does not resolve our

issue, we turn next to cases from the New Mexico Court of Appeals.



       8
         Castleman, 134 S. Ct. at 1415 (“That the harm occurs indirectly, rather than
directly (as with a kick or punch), does not matter.”); cf. United States v. Vail-Bailon,
868 F.3d 1293, 1298-1302 (11th Cir. 2017) (en banc) (holding battery statute
satisfied the “capable of causing pain or injury” standard, even though conviction did
not require perpetrator to specifically intend the physical harm that actually resulted);
Douglas v. United States, 858 F.3d 1069, 1072 (7th Cir. 2017) (stating under ACCA
there is no “separate intent element attached to the degree of injury. It is enough to
‘use’ force.”), petition for cert. filed (U.S. Oct. 31, 2017) (No. 17-6619).

                                           15
      The earliest of the cases cited by the parties is State v. Sanchez, 430 P.2d 781

(N.M. Ct. App. 1967). In it, the victim was using a restroom in a bar. The defendant

put his fist against the victim’s back and pulled his wallet from his pants pocket. On

these facts, the Court of Appeals decided there was insufficient force or fear of force

to justify a robbery conviction. Id. at 782.

      According to the Court of Appeals, where the state relies on the use of force,

the issue is “not how much force was used, but whether the force was sufficient to

compel the victim to part with his property.” Id. Similar language can be found in

other New Mexico cases, see, e.g., State v. Martinez, 513 P.2d 402, 403 (N.M. Ct.

App. 1973) (“The amount or degree of force is not the determinative factor.”).

Martinez immediately follows this language by the statement “[e]vidence of jostling

or causing the victim to fall as property is taken is a sufficient showing to establish

the use of force.”9 Id. (emphasis added).

      But courts have not simply relied on a state court’s statement that the degree of

force used is immaterial to a conviction; they have also examined the state cases to

      9
         This is inconsistent with Sanchez, 430 P.2d at 782, which indicates touching
or jostling is not sufficient force for a robbery conviction. Compare also the
Committee Commentary to the New Mexico pattern jury instruction for robbery,
NMRA UJI 14-1620, which states the amount of force used to commit robbery is
“immaterial.” When such language is used to describe state statutes—holding no
specific quantum of force is required to commit a robbery—it precludes the use of
convictions under the Elements Clause of the ACCA. See, e.g., United States v.
Mulkern, 854 F.3d 87, 93 (1st Cir. 2017) (robbery conviction under Maine statute
was not a violent felony under the ACCA because “Maine’s highest court recognizes
that ‘any physical force’ suffices to satisfy the ‘physical force’ element [of the
robbery statute]”).


                                            16
see what level of force was actually deemed sufficient in practice. See, e.g., United

States v. Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016) (analyzing North Carolina

cases); United States v. Vail-Bailon, 868 F.3d 1293, 1306 (11th Cir. 2017) (“[T]he

real-world examples of Florida felony battery we are aware of all involve conduct

that clearly required the use of physical force.”). We will do the same. Although our

focus is on the statutory elements, the facts are relevant to a determination of how

those elements are actually applied in the state’s courts and hence would be

realistically applied there. As will be seen, the New Mexico courts have required a

greater quantum of force for a robbery conviction than the above language might

suggest. Significantly, where the evidence showed less force was involved, they

have not hesitated to reverse.

      In Sanchez, finding the force used was not sufficient to satisfy the robbery

statute, the court explained,

             The situation here is comparable to those pickpocket or purse
      snatching cases, where even though there was some touching or jostling
      involved as the property was taken, the crime was larceny because of the
      absence of force or fear.
Sanchez, 430 P.2d at 782 (citations omitted).

      The primary point made here appears to be the bathroom theft was not robbery

because force (although physical) was not used to overcome the victim’s resistance.

But we can also glean from the applied facts in Sanchez that “force,” for purposes of

a New Mexico robbery conviction, involves something more than incidental

“touching or jostling.”


                                          17
       In State v. Curley, 939 P.2d 1103 (N.M. Ct. App. 1997), which is a decision

involving a purse snatching, the court provided a detailed analysis of the quantum of

force required for robbery. The recited facts were:

       [T]he victim was walking out of a mall with her daughter when Defendant
       grabbed her purse and ran away. The victim described the incident as
       follow[s]: “I had my purse on my left side . . . and I felt kind of a shove of
       my left shoulder where I had my purse strap with my thumb through it and
       I kind of leaned-was pushed-toward my daughter, and this person came and
       just grabbed the strap of my purse and continued to run.” The victim used
       the words “grab” or “pull” to describe the actual taking of the purse and
       “shove” or “push” to describe what Defendant did as he grabbed or “pulled
       [the purse] from her arm and hand.” However, there was also evidence that
       the victim’s thumb was not through the strap of the purse, but was rather on
       the bottom of the purse. The purse strap was not broken, and the victim did
       not testify that she struggled with Defendant for the purse in any way or
       that any part of her body offered any resistance or even moved when the
       purse was pulled from her arm and hand. Defendant presented evidence
       that he was drunk and did not remember the incident at all.
Id. at 1104.

       The trial court refused to give a lesser included offense (larceny) instruction

on these facts, but the New Mexico Court of Appeals reversed. It said if the

defendant’s shove was excluded from the quantum of force (because the defendant

was drunk and may not have intentionally shoved the victim), the remaining force

would not have been sufficient to constitute robbery, only larceny. See id. at 1105.

The court went on to explain if the defendant “shoved the victim to help himself

relieve her of the purse, and the shove and Defendant’s other force in grabbing the

purse had that effect,” the facts would establish robbery. Id. at 1107. Curley holds

intentionally shoving a person (one of Justice Scalia’s examples of violent force,

see Castleman, 134 S. Ct. at 1421) would be sufficient to satisfy the element of force

                                            18
for robbery, but merely snatching a purse without any resistance from the victim

would not.10 This is consistent with the government’s understanding that a New

Mexico robbery conviction requires the use of violent force (force capable of causing

pain or injury), as defined in Johnson I.11

      The Curley court explained “robbery is committed when attached property is

snatched or grabbed by sufficient force so as to overcome the resistance of

attachment.” Id. at 1105. The Curley court specifically rejected the so-called

Massachusetts rule, which finds sufficient force present “as long as [a] person is

aware of the application of force which relieves the person of property and the taking

is therefore, at least to some degree, against the victim’s will.” Id.; see also Harris,


      10
         Garcia relies on dicta from Curley setting out general principles to
distinguish larceny from robbery, including language which indicates using force to
remove items attached to a victim’s clothing with her knowledge could support a
robbery conviction. See Curley, 939 P.2d at 1106. But this dicta, which also
includes the force involved in jostling the victim, is much broader than the actual
application the robbery statute has received in New Mexico courts. Garcia does not
cite a New Mexico case upholding a robbery conviction under those facts, and the
dicta in Curley about items attached to clothing seems inconsistent with language in
Bernal, 146 P.3d at 296, which indicates the robbery statute is designed to punish
violent force directed against a person, rather than solely protecting property.
      11
          We are not persuaded by cases such as Gardner, 823 F.3d at 803-04, which
concluded that North Carolina robbery was not a violent felony under the ACCA by
relying in part on a North Carolina case upholding “a conviction when a defendant
pushed the shoulder of an electronics store clerk, causing her to fall onto shelves
while the defendant took possession of a television.” Shoving a person and causing
her to fall involves force capable of producing pain or injury. Cf. United States v.
Thomas, 849 F.3d 906, 909 (10th Cir.) (“[A]ggressive pushing . . . is sufficient [to
satisfy the condition of violent force] under Johnson.”), cert. denied, 86 USLW 3716
(U.S. Oct. 10, 2017) (No. 16-9389).


                                              19
844 F.3d at 1267-68 (finding it significant to a violent-force inquiry Colorado does

not follow the Massachusetts approach).

      In his concurrence in Castleman, Justice Scalia included “grabbing” as an

example of violent force. Castleman, 134 S. Ct. at 1421. He may have been

referring to grabbing a body part rather than the victim’s property. But where the

victim is clinging to her property and resisting the force used to take it away a

distinction between grabbing the person or her property seems immaterial to the

violent force inquiry. A direct/indirect test is useless. The Supreme Court has

recognized physical force “need not be applied directly to the body of the victim” to

be capable of producing bodily injury. Id. at 1414-15 (internal quotation marks

omitted). We agree with the Seventh Circuit; the proper focus is not on whether “the

force employed [is] of such a degree as to cause (or threaten) more serious injuries,”

but whether the force used has “the capacity to inflict physical pain, if not concrete

physical injury, upon the victim.” United States v. Jennings, 860 F.3d 450, 457

(7th Cir. 2017), petition for cert. filed (U.S. Nov. 17, 2017) (No. 17-6835).

      Other New Mexico cases illustrate how force applied through struggle over

property is capable of causing pain or injury. In State v. Segura, 472 P.2d 387

(N.M. Ct. App. 1970), the force used was held sufficient for a robbery conviction

where the defendant grabbed a shopping bag from the victim and pulled it away from

her so hard it caused the victim to fall on the ground. See id. at 387-88. Force

sufficient to cause a victim to fall to the ground is certainly force capable of causing

pain or injury.

                                           20
       In State v. Verdugo, 164 P.3d 966 (N.M. Ct. App. 2007), the New Mexico

Court of Appeals found sufficient force to support a robbery conviction where the

defendant “drove up [alongside the victim] while she was walking in a parking lot,

and that he grabbed her purse from her arm. She testified that she struggled to retain

control of the purse, but that the strap eventually broke.” Id. at 974. This level of

force was not minimal; jerking on a purse from a moving car was certainly capable of

causing physical pain or injury to the victim.12

       Grabbing, along with striking the victim, was at issue in State v. Martinez,

513 P.2d 402 (N.M. Ct. App. 1973). In Martinez, the New Mexico Court of Appeals

found sufficient force to sustain a robbery conviction where the perpetrator grabbed

dollar bills in the breast pocket of the victim’s jacket, ripping the jacket, and hit the



       12
          Garcia argues Verdugo’s facts are comparable to those described in United
States v. Bell, 840 F.3d 963, 966 (8th Cir. 2016), in which the Eighth Circuit held a
prior Missouri state conviction for second-degree robbery did not constitute a “crime
of violence” for Guideline sentencing purposes. The Eighth Circuit, citing a
Missouri Court of Appeals decision concerning purse-snatching, concluded “in
Missouri a defendant can be convicted of second-degree robbery when he has
physical contact with a victim but does not necessarily cause physical pain or injury.”
Id. The court acknowledged this is not the same as the Johnson I standard, which
targets whether the force is capable of causing physical pain or injury. Id. It
finessed this distinction by pointing to a “reasonable probability” Missouri could
apply its statute, or had already done so, to conduct falling short of violent force. Id.
(internal quotation marks omitted). We do not find this analysis persuasive.

       Garcia also points to United States v. Swopes, 850 F.3d 979 (8th Cir. 2017)
(per curiam), which applied Bell to the violent-felony inquiry under the ACCA and
granted the defendant relief under the plain-error standard. See id. at 980-81. But on
June 17, 2017, the Eighth Circuit granted en banc review and vacated its prior
decision in Swopes.

                                            21
victim, knocking him against a railing. See id. at 402-03. This case also clearly

describes violent force as described in Johnson I.

      We acknowledge language in the New Mexico cases suggesting any quantum

of force which overcomes resistance would be sufficient to support a robbery

conviction. But what is said is less important than what is done. As we have seen,

New Mexico’s appellate courts do not apply this standard blindly. Defendants who

have used a minimal level of physical force to take a victim’s property have seen

their convictions reversed. See Sanchez and Curley. We are concerned with realistic

probabilities, not theoretical possibilities, of conviction under the statute. Harris,

844 F.3d at 1264. And the cases affirming convictions which clearly discuss the

quantum of force describe force sufficient to satisfy the Johnson I definition.

      In sum, we conclude robbery as defined in N.M. Stat. Ann. § 30-16-2,

authoritatively discussed in Bernal, and actually applied in the New Mexico courts,

categorically matches the definition of “physical force” the Supreme Court assigned

in Johnson I. Robbery under this statute has as an element the use or threatened use

of physical force against another person. Thus, robbery under § 30-16-2 is a violent

felony under the ACCA’s Elements Clause in § 924(e)(2)(B)(i), and may be used as

the third predicate violent felony conviction to uphold Garcia’s enhanced sentence

under the ACCA.




                                           22
                               III. CONCLUSION

      We affirm the District judge’s order denying Garcia’s § 2255 motion.

Garcia’s motion for an expedited decision is denied as moot.




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