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

                            FOR THE TENTH CIRCUIT                            May 20, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                          No. 17-8044
                                                 (D.C. Nos. 1:16-CV-00165-NDF and
 DARRELL LEE MONTOYA,                                  2:94-CR-00080-WFD-1)
                                                              (D. Wyo.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.
                  _________________________________

      Defendant-Appellant Darrell Lee Montoya seeks a certificate of appealability

(COA) to appeal the district court’s dismissal of his motion to vacate, set aside, or

correct his sentence under 28 U.S.C. § 2255. Below, Montoya challenged his

sentence under Johnson v. United States, 135 S. Ct. 2551 (2015), claiming that five

of his 18 U.S.C. § 924(c) convictions do not have requisite “crime of violence”

predicates. The district court denied Montoya’s motion and denied him a COA.



      *
        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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Exercising jurisdiction under 28 U.S.C. § 2255(d), we DENY Montoya’s COA

request and DISMISS the petition because Montoya cannot demonstrate that

reasonable jurists would find the district court’s assessment of his constitutional

claims debatable or wrong.

                                           I.

      On June 6, 1994, Montoya drove to the Bureau of Indian Affairs (BIA) police

station in Fort Washakie, Wyoming. There, he opened fire on multiple police

officers. ROA, Vol. III at 3–8 (presentence report). No officers were killed, but one

was wounded during the incident. Id. Montoya was convicted of five counts of

forcibly assaulting an officer, 18 U.S.C. § 111(a)(1) & (b); nine counts of using a

firearm during a crime of violence, 18 U.S.C. § 924(c); and four counts of aggravated

assault with a deadly weapon, 18 U.S.C §§ 1153 & 13 (Wyo. Stat. Ann. § 6-2-

502(b)).1 ROA, Vol. I at 83. Montoya’s nine crime-of-violence convictions under

§ 924(c) increased his sentence by 165 years, for a total of 171 years in prison. Id. at

85.

      Following an unsuccessful appeal and motion to reduce his sentence, Montoya

filed the 28 U.S.C. § 2255 motion underlying this proceeding. The § 2255 motion

argued that Montoya’s § 924(c) crime-of-violence convictions were invalid. ROA,

Vol. I at 6. The district court denied the motion, holding that Montoya’s claims (1)



      1
         18 U.S.C. § 13 adopts state laws in certain areas within federal jurisdiction.
18 U.S.C. § 13(a). Wyoming Statute § 6-2-502 criminalizes aggravated assault and
battery.
                                                2
were procedurally barred because he failed to challenge his crime-of-violence

convictions at sentencing or on appeal; (2) were time-barred; and (3) failed on the

merits because Montoya’s 18 U.S.C. § 111 convictions were categorically crimes of

violence under the elements clause of § 924(c). Because we agree that Montoya’s

claims fail on the merits, we do not address whether they are procedurally barred or

time-barred.

                                           II.

      A federal prisoner cannot appeal a denial of habeas relief unless he obtains a

COA. 28 U.S.C. § 2253(c)(1)(B). A COA may issue only if the prisoner has made

“a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2).

Where, as here, a district court has rejected the constitutional claims on the merits,

“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).

      Montoya argued in the district court that his sentence was unconstitutional

under Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the Supreme

Court considered the residual clause of the Armed Career Criminal Act (ACCA), 18

U.S.C. § 924(e)(2)(B)(ii). The ACCA defined a “violent felony” as “any crime

punishable by imprisonment exceeding one year” that “has as an element the use,

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

elements clause), “is burglary, arson, or extortion, involves use of explosives” (the

enumerated clause), or “involves conduct that presents a serious potential risk of

                                                 3
physical injury to another” (the residual clause). 18 U.S.C. § 924(e)(2)(B). The

Court concluded that the residual clause was unconstitutionally vague. Johnson, 135

S. Ct. at 2557.

      Like the ACCA provision examined in Johnson, 18 U.S.C. § 924(c) contains

an elements clause (sometimes called the “force clause”) and a residual clause similar

to the one invalidated in Johnson. Specifically, § 924(c)(3) defines a “crime of

violence” as a felony that “has as an element the use, attempted use, or threatened use

of physical force against the property or person of another” (the elements clause) or

“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” (the

residual clause). 18 U.S.C. § 924(c)(3). Montoya argued that his convictions for

forcible assault on federal officers did not qualify as crimes of violence under the

elements clause. ROA, Vol. 1 at 6. Therefore, he reasoned, he was “necessarily

convicted under the residual clause.” Id. Montoya asserted that the residual clause

of § 924(c) was unconstitutional under Johnson, and that as a result, his § 924(c)

convictions were invalid.

      On appeal, Montoya acknowledges that this argument is foreclosed by Tenth

Circuit precedent. In United States v. Kendall, 876 F.3d 1264 (10th Cir. 2017), we

held that forcibly assaulting an officer under 18 U.S.C. § 111(b) is a crime of

violence as defined in § 924(c) because it has as an element “the use, threatened use,

or attempted use of violent physical force.” Id. at 1270. Thus, Montoya’s § 111(b)

convictions qualify as “crime[s] of violence” under the elements clause of § 924(c),

                                               4
meaning the crime-of-violence convictions do not rest on the allegedly

unconstitutional residual clause. As Montoya concedes, this panel is bound by

Kendall and can grant him no relief. He filed this appeal “only to preserve his

argument that . . . assault on a federal officer pursuant to 18 U.S.C. § [111(b)] does

not qualify as a crime of violence under the force clause of § 924(c).” Aplt. Br. at 1.

                                          III.

      Given the above, we DENY Montoya’s request for a certificate of

appealability and DISMISS this appeal.


                                            Entered for the Court


                                            Allison H. Eid
                                            Circuit Judge




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