                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                       February 4, 2019
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                          Clerk of Court
                                       TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

 v.                                                          No. 17-3137
                                                    (D.C. Nos. 5:16-CV-04093-SAC
 CAREY LONNELL BRESHERS, JR.,                         and 5:10-CR-40107-SAC-1)
                                                               (D. Kan.)
               Defendant - Appellant.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.


       Appellant Carey Breshers pled guilty to using, carrying, or brandishing a firearm

during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). In

2016, Appellant moved to vacate his conviction under 28 U.S.C. § 2255, arguing that the

underlying crime on which his conviction was based—Hobbs Act robbery—can no

longer be considered a “crime of violence” in light of the Supreme Court’s decision in

Johnson v. United States, 135 S. Ct. 2551 (2015). The district court denied his motion on

the merits, holding that Hobbs Act robbery is categorically a crime of violence under 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         This order is not binding precedent except under the doctrines of law of the case,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.
separate subsection of the statute that is not affected by the Court’s Johnson decision. See

§ 924(c)(3)(A). Appellant filed a motion for a certificate of appealability to appeal this

decision.

       In his motion for a certificate of appealability, Appellant recognized that his crime-

of-violence argument appeared to be foreclosed by our decision in United States v.

Melgar-Cabrera, 892 F.3d 1053, 1064–65 (10th Cir. 2018), in which we held that Hobbs

Act robbery is categorically a crime of violence because it includes as an element the use

or threatened use of violent force. However, he argued that reasonable jurists might still

debate the merits of this issue based on the Supreme Court’s granting of certiorari in

another case involving a similar question. See United States v. Stokeling, 684 Fed. App’x

870 (11th Cir. 2017), cert. granted, 138 S. Ct. 1438 (2018).

       The Supreme Court recently decided Stokeling, holding consistently with our

reasoning in Melgar-Cabrera that “the degree of force necessary to commit common-law

robbery” is sufficient to satisfy the categorical definition of crimes of violence. Stokeling

v. United States, 139 S. Ct. 544, 555 (2019); cf. Melgar-Cabrera, 892 F.3d at 1065

(“[T]he force element in common-law robbery statutes (e.g., the Hobbs Act) can only be

satisfied by violent force.”). In light of this decision, Appellant concedes that reasonable

jurists would no longer debate the merits of his claim.

       Because Melgar-Cabrera and Stokeling conclusively preclude Appellant’s




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argument for relief, we DENY his request for a certificate of appealability and DISMISS

the appeal.


                                                ENTERED FOR THE COURT



                                                Monroe G. McKay
                                                Circuit Judge




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