                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   June 12, 2020
                                                                 Christopher M. Wolpert
                                 TENTH CIRCUIT                       Clerk of Court



UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                         No. 18-2048
                                             (D.C. Nos. 1:05-CR-02260-JAP-1 &
v.
                                                 1:16-CV-00651-JAP-SCY)
                                                          (D.N.M.)
MARC GENE CLARK,

      Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.


      Defendant-Appellant Marc Gene Clark appeals from the district court’s

dismissal with prejudice of his 28 U.S.C. § 2255 motion to vacate his conviction

under 18 U.S.C. § 924(c). The district court dismissed his § 2255 motion because

it determined that he was properly convicted of discharging a firearm during and

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



      *
              After examining the briefs and appellate record, this panel has
determined unanimously to honor Mr. Clark’s request for a decision on the briefs
without oral argument. F ED . R. A PP . P. 34(f); 10 TH C IR . R. 34.1(G). The case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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 Federal Rule of Appellate Procedure 32.1 and 10th Circuit Rule 32.1.
dismissing the motion, the court concluded that Mr. Clark’s robbery conviction

under 18 U.S.C. § 2111 constituted a “crime of violence” that supported his

§ 924(c) conviction. We granted Mr. Clark a certificate of appealability

(“COA”). Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district

court’s judgment dismissing Mr. Clark’s § 2255 motion.

                                           I

      On July 6, 2005, Mr. Clark entered a convenience store in Shiprock, New

Mexico, located within the territory of the Navajo Nation. He robbed the store at

gunpoint, discharging his firearm in the process. He was later arrested. And, on

October 24, 2005, he was charged in a two-count information. That same day, he

pleaded guilty to both counts.

      With respect to count one, Mr. Clark pleaded guilty to violating 18 U.S.C.

§ 2111, a federal robbery statute. That statute makes it a crime to take or attempt

to take “by force and violence, or by intimidation” anything of value “from the

person or presence of another” while “within the special maritime and territorial

jurisdiction of the United States [e.g., the Navajo Nation].” 18 U.S.C. § 2111;

see also id. § 1152 (providing that “the general laws of the United States as to the

punishment of offenses committed in any place within the sole and exclusive

jurisdiction of the United States . . . shall extend to the Indian country”).




                                           2
      As to count two, Mr. Clark pleaded guilty to violating 18 U.S.C.

§ 924(c)(1)(A)(iii), which prohibits discharging a firearm during and in relation to

an underlying “crime of violence.” § 924(c)(1)(A)(iii). Section 924(c)(3) defines

a “crime of violence,” in turn, as a felony that either

             (A) has as an element the use, attempted use, or threatened use
             of physical force against the person or property of another, or

             (B) that 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.

§ 924(c)(3)(A)–(B). Subsection (A) is referred to as the “elements clause,” and

subsection (B) is referred to as the “residual clause.” The designated “crime of

violence” underlying Mr. Clark’s § 924(c)(1)(A)(iii) offense was his robbery

conviction under § 2111. The district court sentenced Mr. Clark on the two

counts to a total of 150 months’ imprisonment.

      Around a decade later, the Supreme Court decided Johnson v. United

States, 135 S. Ct. 2551 (2015). At issue there was a residual clause similar in

wording to the one found in § 924(c)(3); it partially defines the term “violent

felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

Compare id. § 924(e)(2)(B)(ii) (defining “violent felony” under the ACCA to

include a felony that “presents a serious potential risk of physical injury to

another”), with id. § 924(c)(3)(B) (defining “crime of violence” under § 924(c) to



                                           3
include a felony that “involves a substantial risk that physical force against . . .

another may be used”).

      The Johnson Court held that the residual clause’s definition of “violent

felony” under the ACCA was unconstitutionally vague, meaning that a sentence

that is imposed under that clause “violates the Constitution’s guarantee of due

process.” 135 S. Ct. at 2557, 2563. The Supreme Court later made its holding

retroactive to cases on collateral review. See Welch v. United States, 136 S. Ct.

1257 (2016).

      Less than a year after Johnson was decided, Mr. Clark filed the instant

§ 2255 motion seeking vacatur of his § 924(c) conviction and resentencing on the

remaining count. He argued, as an initial matter, that his motion was “timely

filed [under § 2255(f)(3)] if filed within one year of the decision in Johnson.” 1


      1
             In this regard, the government initially contested the timeliness of
Mr. Clark’s motion. Specifically, in supplemental briefing ordered by this panel
in October 2018, the government argued that Johnson did not recognize the right
asserted by Mr. Clark—i.e., the right not to be sentenced under § 924(c)(3)(B)’s
residual clause—thereby rendering § 2255(f)(3) inapposite, and Mr. Clark’s
motion, in turn, time barred. But in the wake of the Supreme Court’s decision
issued several months later in United States v. Davis, 139 S. Ct. 2319 (2019)—as
discussed in further detail infra—the government waived its time-bar claim, and
indeed requested that “this Court . . . decide the matter on the merits.” Aplee.’s
Mem. Br. Related to the Impact of United States v. Davis, et al. at 3 [hereinafter
Aplee.’s Suppl. Br. re Davis]. In light of the government’s waiver of this
argument, we need not take a position on whether Mr. Clark’s motion invoking
Johnson (viz., not Davis) is actually timely, and we decline to do so here. See
United States v. Morgan, 775 F. App’x 456, 457 (10th Cir. 2019) (unpublished)
                                                                        (continued...)

                                           4
R., Vol. I, at 5 (Mot. to Vacate Sentence, filed June 23, 2016); see also

§ 2255(f)(3) (providing that a defendant must file a § 2255 motion within one

year of “the date on which the right asserted was initially recognized by the

Supreme Court, if that right has been newly recognized by the Supreme Court and

made retroactively applicable to cases on collateral review”).

      On the merits, Mr. Clark argued that his underlying § 2111 offense was not

a “crime of violence” under either of § 924(c)(3)’s clauses. This argument

proceeded in two parts. First, he contended that—under Johnson’s

logic—§ 924(c)(3)(B)’s residual clause was invalid, and thus his § 2111

conviction did not qualify as a “crime of violence” under that clause. Second, he

argued that § 2111 does not satisfy § 924(c)(3)(A)’s elements clause under the

categorical approach (or, alternatively, the modified categorical approach), and

thus his § 2111 conviction was not a “crime of violence” under that clause. In

sum, Mr. Clark argued that his § 2111 conviction was not a lawful




      1
        (...continued)
(“[W]e need not evaluate the timeliness of [the defendant’s] . . . § 2255 motion”
where “the government has chosen to waive its timeliness objection to [that]
§ 2255 motion.”); see also Wood v. Milyard, 566 U.S. 463, 466 (2012) (“A court
is not at liberty, we have cautioned, to bypass, override, or excuse a State’s
deliberate waiver of a limitations defense.”); United States v. Mulay, 725 F.
App’x 639, 643 (10th Cir. 2018) (unpublished) (recognizing that the rule
articulated in Wood applies to the government’s waiver of its time-bar claim as to
a § 2255 motion).

                                          5
crime-of-violence predicate offense for his § 924(c)(1)(A)(iii) conviction, and,

consequently, the latter conviction could not stand.

      The district court dismissed Mr. Clark’s § 2255 motion, rejecting his

arguments with respect to § 924(c)(3)’s residual and elements clauses. As to the

former, the court declined to definitively rule on whether Johnson’s reasoning

could be extended to invalidate § 924(c)(3)(B)’s residual clause, though it

evinced serious skepticism that it could be so extended and concluded that, at a

minimum, Johnson “does not clearly invalidate” the residual clause. R., Vol. I, at

15 (Dist. Ct. Mem. Op. & Order, filed Jan. 29, 2018). As to the latter, the district

court was much more pointed; it explicitly declared that a § 2111 conviction is a

“crime of violence” under § 924(c)(3)(A)’s elements clause. The district court

thus held that the elements clause supported Mr. Clark’s § 924(c)(1)(A)(iii)

conviction and that he was therefore not entitled to the requested § 2255 relief.

In the same memorandum opinion and order, the district court also denied Mr.

Clark a COA.

      Mr. Clark appealed from the district court’s order dismissing his § 2255

motion, and we granted a COA on the following issue: “[w]hether the district

court erred in rejecting Mr. Clark’s argument that his conviction under 18 U.S.C.

§ 2111 did not qualify as a crime of violence under subsections (A) and (B) of 18




                                          6
U.S.C. § 924(c)(3)?” Order Granting COA, No. 18-2048, at 11 (10th Cir., filed

Oct. 30, 2018).

                                         II

      We now turn to resolving that issue. To begin, we note that in reviewing

the district court’s denial of a § 2255 motion, “ordinarily ‘we review the district

court’s findings of fact for clear error and its conclusions of law de novo.’”

United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quoting United

States v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011)). However, “where, as

here, the district court does not hold an evidentiary hearing, but rather denies the

motion as a matter of law upon an uncontested trial record, our review is strictly

de novo.” Rushin, 642 F.3d at 1302.

      Our review here is straightforward, largely owing to three key

developments since Mr. Clark filed his appeal: (1) the Supreme Court’s decision

in United States v. Davis, 139 S. Ct. 2319 (2019); (2) the government’s waiver of

its time-bar claim against Mr. Clark’s § 2255 motion following the Supreme

Court’s decision in Davis, see supra note 1; and (3) the decision recently reached

by a panel of this court in United States v. Shirley, No. 18-2071, 2020 WL

1845275 (10th Cir. Apr. 13, 2020) (unpublished). These three developments,

taken together, enable us to dispose of Mr. Clark’s § 2255 claim on the merits in

fairly simple fashion. We expound on each of these in turn.


                                          7
      The first key development bearing on Mr. Clark’s appeal is the Supreme

Court’s decision in United States v. Davis, which was issued in 2019. There, the

Court expressly held that § 924(c)(3)(B)’s residual clause “is unconstitutionally

vague.” Davis, 139 S. Ct. at 2336. Under Davis, in other words, a defendant

“cannot be guilty of violating § 924(c)(1) if his . . . convictions qualify as crimes

of violence only under § 924(c)(3)’s residual clause.” United States v. Bowen,

936 F.3d 1091, 1098 (10th Cir. 2019); see also id. at 1097–98 (clarifying that

Davis constitutes “a new constitutional rule that is retroactive on collateral

review”). Significantly, what this ruling means for Mr. Clark is that his § 2111

conviction cannot qualify as a “crime of violence” under the residual clause so as

to support his § 924(c)(1)(A)(iii) conviction.

      Second, as a direct result of the Court’s decision in Davis, several months

later, the government advised this court in supplemental briefing that it was

waiving its time-bar claim. See Aplee.’s Suppl. Br. re Davis at 3; see also supra

note 1. This waiver means that we need not, and therefore do not, decide whether

Mr. Clark’s motion is actually timely, and instead can simply resolve his § 2255

claim on the merits. See, e.g., United States v. Mulay, 725 F. App’x 639, 643

(10th Cir. 2018) (unpublished) (refusing to entertain the government’s argument

contesting the timeliness of the § 2255 motion at issue, because “the government




                                           8
[had] affirmatively waive[d] the issue” and “[w]e would abuse our discretion if

we were to address an intentionally abandoned argument”).

      The third, and most recent, salient development bearing on Mr. Clark’s

§ 2255 claim is United States v. Shirley. There, a panel of this court confronted

the same question that is centrally at issue here: whether a § 2111 conviction

qualifies as a “crime of violence” under § 924(c)(3)(A)’s elements clause. The

Shirley panel squarely answered that question in the affirmative, holding that a

§ 2111 robbery “meets the requirements of the elements clause of

§ 924(c)(3)(A).” Shirley, 2020 WL 1845275, at *4. In other words, a § 2111

robbery “has as an element the use, attempted use, or threatened use of physical

force against the person or property of another.” Id. at *2 (quoting

§ 924(c)(3)(A)).

      In reaching this decision, Shirley engaged in a well-reasoned, thoughtful

analysis. Preliminarily, in its assessment of whether § 2111 satisfies

§ 924(c)(3)(A)’s elements clause, it framed the pertinent inquiry as follows:

whether the defendant’s § 2111 robbery offense required “violent force”; that is,

“the quantum of force necessary to satisfy” the “physical force” element of

§ 924(c)(3)(A). Id. To make that determination, the panel applied the categorical

approach, which means “ask[ing] whether the minimum force required to commit

§ 2111 Robbery qualifies as ‘violent force.’” Id. And, though it agreed with the


                                          9
defendant that § 2111 “incorporates the common-law definition of robbery,” it

ultimately concluded—contrary to the defendant’s contentions—that common-law

robbery does in fact constitute a “crime of violence.” Id. at *2, *3.

      The panel’s conclusion was based on a careful survey of our caselaw and

Supreme Court precedent involving analogous robbery statutes. See id. at *3

(citing, inter alia, Stokeling v. United States, 139 S. Ct. 544, 548–55 (2019);

United States v. Melgar-Cabrera, 892 F.3d 1053, 1064–65 (10th Cir.), cert.

denied, 139 S. Ct. 494 (2018)). This survey revealed “that the force element in

common-law robbery statutes . . . can only be satisfied by violent force.” Id.

(omission in original) (quoting Melgar-Cabrera, 892 F.3d at 1065). The panel

thus held that § 2111 robbery (which embodies the common-law definition of

robbery) is a “crime of violence” as defined in § 924(c)(3)(A); it therefore

affirmed the district court’s judgment dismissing the defendant’s § 2255 motion.

      Suffice it to say, we find the panel’s analysis in Shirley to be cogent and on

point, and we therefore rule in the same manner here. We hold that a § 2111

conviction constitutes a “crime of violence” under § 924(c)(3)(A)’s elements

clause, and that it is thus a lawful crime-of-violence predicate offense for Mr.

Clark’s § 924(c)(1)(A)(iii) conviction.

                                          ***




                                          10
      In sum, the three key developments that have arisen during the pendency of

this appeal—namely, the Supreme Court’s decision in Davis, the government’s

waiver of its time-bar claim, and the decision recently reached by a panel of this

court in Shirley—enable us to readily dispose of Mr. Clark’s § 2255 claim on the

express basis that his § 2111 conviction is a “crime of violence” under

§ 924(c)(3)(A)’s elements clause.

                                         III

      Based on the foregoing, we AFFIRM the district court’s judgment

dismissing Mr. Clark’s § 2255 motion.



                                ENTERED FOR THE COURT



                                Jerome A. Holmes
                                Circuit Judge




                                         11
