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

                             FOR THE TENTH CIRCUIT                            April 13, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                             No. 17-2068
                                                   (Nos. 2:16-CV-00670-RB-WPL and
ROBERT SERRANO,                                           5:11-CR-02230-RB-1)
                                                                (D. N.M.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

      Robert Serrano, a federal prisoner, seeks a certificate of appealability (COA)

under 28 U.S.C. § 2253(c)(1) to challenge the denial of his 28 U.S.C. § 2255 habeas

motion to vacate, set aside, or correct his sentence.1 We deny the COA.

                                   BACKGROUND

      On December 7, 2011, Serrano pleaded guilty to one count of possessing a

firearm in violation of 26 U.S.C. §§ 5845(a)(2), 5861(d), and 5871 (a sawed-off

shotgun), and one count of being a felon in possession of a firearm, in violation of 18


      *
         This order is not binding precedent, except under the doctrines of law of the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.
      1
       Serrano has already been granted in forma pauperis status for this
proceeding.
                                               1
U.S.C. § 922(g)(1). The Presentence Report (PSR) classified Serrano as an armed

career criminal because he was at least 18 years old when he committed the instant

offenses, he was a felon in possession of a firearm, and he had a combination of three

earlier convictions for violent felonies or serious drug offenses. 18 U.S.C. §

924(e)(1). Serrano’s criminal history included (1) a 1985 Texas unlawful-delivery-of-

marijuana conviction, (2) a 1993 New Mexico third-degree armed-robbery

conviction, (3) a 2000 New Mexico drug-trafficking and drug-conspiracy conviction,

and (4) a 2005 New Mexico aggravated-battery-against-a-household-member

conviction.

      Under U.S.S.G. § 4B1.4(b)(3)(A), and after a reduction for acceptance of

responsibility, the PSR recommended a total offense level of 31 and a criminal-

history category of IV. That placed Serrano’s advisory guideline range at 188 to 235

months. By statute, his minimum sentence was 180 months. 18 U.S.C. § 924(e)(1).

Absent his status as an armed career criminal, the maximum sentence would have

been 10 years. See 18 U.S.C. §§ 922(g), 924(a)(2).

      Under Serrano’s plea agreement, presented to the district court under Federal

Rule of Criminal Procedure 11(c)(1)(C), the parties agreed to an imprisonment term

of 180 months. And on August 6, 2012, the district court sentenced Serrano in

accordance with the plea agreement.

      Almost four years later, Serrano filed a Motion to Vacate and Correct Sentence

under 28 U.S.C. § 2255. Relying on Johnson v. United States, 135 S. Ct. 2551, 2556–

57 (2015), he argued that he was entitled to resentencing without the armed-career-

                                              2
criminal enhancement. He implicitly argued that the district court had counted his

New Mexico non-drug convictions under the residual clause of 18 U.S.C. §

924(e)(2)(B)(ii). He further argued that neither of those New Mexico convictions

counted as violent felonies under the enumerated-offenses clause at § 924(e)(2)(B)(ii)

or the elements clause at § 924(e)(2)(B)(i).2 After full briefing, the magistrate judge

recommended that the district court deny Serrano’s motion and certificate of

appealability—because New Mexico armed robbery has as an element the use of

physical force against the person of another.3 Because this—together with the

undisputed serious drug offenses—made Serrano an armed career criminal, the

magistrate judge did not determine whether aggravated battery against a household

member also qualified as a violent felony under the elements clause.

      Serrano objected to the magistrate judge’s Proposed Findings and Disposition.

But the district court adopted the magistrate judge’s recommended disposition and

denied Serrano’s motion and denied a certificate of appealability. Serrano now

appeals.




      2
        From the materials provided to us on appeal, we cannot tell under which of §
924(e)’s clauses the district court made its violent-felony determinations. Even
assuming the district court relied on the now-stricken residual clause, as stated in this
order, we still would deny Serrano relief—his New Mexico conviction for armed
robbery satisfied the elements clause of § 924(e)(2)(B)(i).
      3
         The magistrate judge’s recommendation states that Serrano’s motion was
filed after he received leave to do so from this court. This appears to be an error
because the motion before the district court was not a successive motion, meaning
Serrano did not need this court’s leave to file.
                                               3
                                    DISCUSSION

      To obtain a COA, a petitioner must make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). “To make such a showing, an

applicant must demonstrate ‘that reasonable jurists could debate whether . . . the

petition should have been resolved in a different manner or that issues presented were

adequate to deserve encouragement to proceed further.’” Allen v. Zavaras, 568 F.3d

1197, 1199 (10th Cir. 2009) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

Here, the question is whether either of Serrano’s New Mexico felony convictions

qualify as “violent felonies” under the ACCA. See 18 U.S.C. § 924(e)(2)(B).

      In a recently published opinion from this court, United States v. Garcia, 877

F.3d 944, 956 (10th Cir. 2017), we held that a New Mexico third-degree § 30-16-2

conviction “has as an element the use or threatened use of physical force against

another person.” Thus, § 30-16-2 qualifies as a “violent felony under the ACCA’s

Elements Clause in § 924(e)(2)(B)(i).” Garcia, 877 F.3d at 956. Because Garcia is

dispositive,4 Serrano has not made the required substantial showing for this court to

grant his COA.

                                   CONCLUSION

      4
        Even if we were to find that New Mexico aggravated battery is not a violent
felony, Serrano’s New Mexico armed robbery conviction is a qualifying third
conviction that makes him classifiable as an armed career criminal for sentencing
purposes because he has two other qualifying offenses: his 1985 Texas unlawful
marijuana delivery conviction, and his 2000 New Mexico drug-trafficking and drug-
conspiracy conviction.

                                              4
We deny Serrano a COA and dismiss this appeal.


                                 Entered for the Court


                                 Gregory A. Phillips
                                 Circuit Judge




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