                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        June 16, 2010
                       UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                                         Clerk of Court
                                        TENTH CIRCUIT


 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                 No. 09-1328
                                                 (D. Ct. No. 1:07-CR-00236-WDM-1)
 SEREINO JOE MARTINEZ,                                         (D. Colo.)

                Defendant - Appellant.


                               ORDER AND JUDGMENT*


Before BRISCOE, Chief Circuit Judge, CUDAHY,† and TACHA, Circuit Judges.


       Defendant-appellant Sereino Joe Martinez appeals his fifteen-year sentence for

being a felon in possession of a firearm, arguing that a conviction for felony menacing

under Colorado law, see Colo. Rev. Stat. § 18-3-206, is not a violent felony for purposes

of the Armed Career Criminal Act (“ACCA”). We have jurisdiction under 28 U.S.C.

§ 1291, and we AFFIRM.

                                    I. BACKGROUND

       Mr. Martinez pleaded guilty to one count of being a felon in possession of a

       *
        This order and judgment is not binding precedent except under the doctrines of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.
       †
      Honorable Richard D. Cudahy, Senior Circuit Judge, United States Court of
Appeals for the Seventh Circuit, sitting by designation..
firearm in violation of 18 U.S.C. § 922(g)(1). Under the ACCA, a person who violates

§ 922(g) and has three prior convictions for violent felonies shall be sentenced to a

mandatory minimum term of fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1). A

violent felony is defined as:

       [A]ny crime punishable by imprisonment for a term exceeding one year . . .
       that (i) has as an element the use, attempted use, or threatened use of
       physical force against the person of another; or (ii) is burglary, arson, or
       extortion, involves use of explosives, or otherwise involves conduct that
       presents a serious potential risk of physical injury to another.

Id. § 924(e)(2)(B). See also Johnson v. United States, 599 U.S. –, 130 S. Ct. 1265 (2010)

(setting forth the definition of “violent felony” and analyzing the “physical force”

requirement under § 924(e)(1)(i)). Thus, a crime is a violent felony if it: (1) contains as

an element the use, attempted use, or threatened use of physical force against another

person; (2) is one of the “enumerated offenses” (i.e., burglary, arson, or extortion); or (3)

involves conduct that presents a serious potential risk of physical injury to another person

and is otherwise similar to the enumerated crimes.

       Mr. Martinez was convicted in 1989 and 1993 for felony menacing under Colo.

Rev. Stat. § 18-3-206.1 That statute provides:

              (1) A person commits the crime of menacing if, by any threat
              or physical action, he or she knowingly places or attempts to
              place another person in fear of imminent serious bodily
              injury. Menacing is a class 3 misdemeanor, but, it is a class 5
              felony if committed:

       1
        He was also convicted of second-degree murder, which he concedes is a violent
felony. Thus, the only question in this appeal is whether his two felony menacing
convictions qualify as violent felonies.

                                             -2-
              (a) By the use of a deadly weapon or any article used or
              fashioned in a manner to cause a person to reasonably believe
              that the article is a deadly weapon; or

              (b) By the person representing verbally or otherwise that he or
              she is armed with a deadly weapon.

       Thus, the elements of this offense can be summarized as: (1) by threat or physical

action; (2) knowingly placing or attempting to place another person in fear of imminent

serious bodily injury; (3) by using a deadly weapon or representing that one is armed with

a deadly weapon. See Colo. Jury Inst., Criminal § 10:16.

                                     II. DISCUSSION

       We conclude that Colorado’s felony menacing statute contains as an element the

use, attempted use, or threatened use of physical force against another person and thus

qualifies as a violent felony under the ACCA. Under the “as an element” definition of a

violent felony, the “inquiry is limited to the statutory definition of the prior offense, and

not the facts underlying a defendant’s prior conviction.” United States v. Zuniga-Soto,

527 F.3d 1110, 1117 (10th Cir. 2008).2 This is called the “categorical approach.” Id. at

1118. If, however, “the statute of prior conviction includes multiple definitions of an

offense, some of which require proof of the use of force, and some of which do not, then

a court may examine certain judicial records for the limited purpose of determining which


       2
         Zuniga-Soto involved the career-offender provision of the Guidelines and not the
violent-felony provision of the ACCA. The language in the Guidelines and in the ACCA
is sufficiently similar, however, that we have often noted that we engage in the same
analysis for both inquiries. See, e.g., United States v. Charles, 576 F.3d 1060, 1068 n.2
(10th Cir. 2009).

                                             -3-
part of the statute was charged against the defendant.” Id. at 1117. We have referred to

this as the “modified categorical approach.” Id. at 1120. In no case, however, may the

sentencing court consider what the defendant actually did in committing the crime or take

into account “the specific factual circumstances underlying the defendant’s prior arrest.”

Id. at 1118 (quotations omitted). As we have noted, “[t]he elements are the elements, and

they can be determined only by reading and interpreting the statute itself.” Id. (quotations

omitted).

       The district court in this case concluded that, in Colorado, felony menacing is not,

under the “as an element” definition, categorically a violent felony because the crime

could be committed in a way that would not involve physical force. But, according to the

court, it was clear from charging documents that Mr. Martinez used a knife in committing

both offenses. Therefore, the court reasoned that under the modified categorical

approach, the crime qualified as a violent felony.

       We agree with Mr. Martinez that the district court erred in its analysis because

“what [Mr. Martinez] actually did is irrelevant to whether the statute has a particular

element.” Id. (alterations omitted). The court’s error, however, was harmless because

we have already squarely held that felony menacing in Colorado is categorically a violent

felony under the ACCA. In United States v. Herron, 432 F.3d 1127 (10th Cir. 2005), we

considered only the language of § 18-3-206 and concluded:

       Mr. Herron’s convictions [for felony menacing] were undoubtedly for
       violent felonies. He “knowingly place[d] or attempt[ed] to place another
       person in fear of imminent serious bodily injury . . . by the use of a deadly

                                            -4-
       weapon.” [Colo. Rev. Stat.] § 18-3-206. This conduct easily satisfies the
       requirement of “the threatened use of physical force against the person of
       another,” under the ACCA. 18 U.S.C. § 924(e)(2)(B)(i).

Herron, 432 F.3d at 1138.

       Put another way, placing a person in fear of imminent serious bodily injury by

using a deadly weapon or representing that one is armed with a deadly weapon

necessarily occurs through the threatened or actual use of physical force. Thus, the

threatened or actual use of physical force is an element of Colorado’s felony menacing

statute, which qualifies it as a violent felony under 18 U.S.C. § 924(e)(2)(B)(i).

       Mr. Martinez’s argument on appeal focuses on the definition of a deadly weapon;

he emphasizes that a deadly weapon includes inanimate materials or substances.

According to Mr. Martinez, “under a categorical analysis . . . the statute does not satisfy

the ‘physical force’ requirement because a person could threaten another with imminent

serious bodily injury without using physical force—by, for example, the threat of the use

of poison or a dangerous drug.” In the same vein, Mr. Martinez claims that “the

menacing statute clearly covers conduct that does not involve the defendant’s use,

attempted use or threatened use of physical force against another person [because] one

could be convicted of menacing based on a threat to unleash an aggressive, dangerous

dog that might then attack another person.” We are not persuaded by Mr. Martinez’s

logic. Even assuming that poison, a drug, or a dangerous dog constituted the deadly

weapon in a particular conviction, the defendant would still have to use physical force or

the threat of physical force involving the use of the poison, drug, or dog in order to place

                                            -5-
the victim in fear of imminent serious bodily injury as required under the menacing

statute.

       Finally, to the extent Mr. Martinez argues that the analysis in Herron is misguided

after Zuniga-Soto and later cases describing the categorical and modified categorical

approaches, we disagree. Herron correctly articulates and applies the categorical

approach, directly holds that felony menacing under Colo. Rev. Stat. § 18-3-206 is

categorically a violent felony under the “as an element” definition of a violent felony, and

thus controls the issue in this appeal. We therefore affirm his sentence.

                                   III. CONCLUSION

       For the foregoing reasons, Mr. Martinez’s sentence is AFFIRMED.

                                          ENTERED FOR THE COURT,



                                          Deanell Reece Tacha
                                          Circuit Judge




                                            -6-
09-1328, United States v. Martinez

BRISCOE, Chief Judge, concurring.

       I concur in the result. Our prior ruling in United States v. Herron, 432 F.3d 1127

(10th Cir. 2005) squarely addresses the issue presented here and is controlling. In

Herron, our court considered only the text of Colo. Rev. Stat. § 18-3-206 and held that it

contained the necessary elements to meet the ACCA’s definition of violent felony. We

are bound by that ruling and, as a result, it is unnecessary to counter Martinez’s

arguments challenging Herron, or to now provide supporting rationale for our holding in

Herron. See United States v. Edward J., 224 F.3d 1216, 1220 (10th Cir. 2000) (“Under

the doctrine of stare decisis, this panel cannot overturn the decision of another panel of

this court barring en banc reconsideration, a superseding contrary Supreme Court

decision, or authorization of all currently active judges on the court.”) (quotation and

citation omitted).
