                                                                                     FILED
                                                                         United States Court of Appeals
                                        PUBLISH                                  Tenth Circuit

                      UNITED STATES COURT OF APPEALS                             April 17, 2020

                                                                            Christopher M. Wolpert
                             FOR THE TENTH CIRCUIT                              Clerk of Court
                         _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                             No. 18-2010

 ARCHIE MANZANARES,

       Defendant - Appellant.
                      _________________________________

                    Appeal from the United States District Court
                            for the District of New Mexico
            (D.C. Nos. 1:16-CV-00599-WJ-SMV & 1:12-CR-01563-WJ-1)
                       _________________________________

Margaret A. Katze, Assistant Federal Public Defender, Office of the Federal Public
Defender for the District of New Mexico, Albuquerque, New Mexico, appearing for
Appellant.

C. Paige Messec, Assistant United States Attorney (John C. Anderson, United States
Attorney, with her on the briefs), Office of the United States Attorney for the District of
New Mexico, Albuquerque, New Mexico, appearing for Appellee.
                        _________________________________

Before BRISCOE, KELLY, and CARSON, Circuit Judges.
                  _________________________________

BRISCOE, Circuit Judge.
                     _________________________________

       Defendant-Appellant Archie Manzanares appeals from the district court’s denial

of his 28 U.S.C. § 2255 motion challenging his sentence under the Armed Career

Criminal Act (ACCA). Because the district court granted a certificate of appealability
(COA) as to one issue, we exercise jurisdiction under 28 U.S.C. § 2253. We affirm the

denial of relief and deny Mr. Manzanares’s motion to expand the COA.

                                              I

       On April 1, 2013, Mr. Manzanares pleaded guilty to being a felon in possession of

a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and to possession of a

controlled substance, in violation of 21 U.S.C. § 844. ROA, Vol. II at 11. His plea

agreement provided for a 15-year sentence if the district court determined he was an

armed career criminal. Id. at 12. On July 2, 2013, after concluding that Mr. Manzanares

had at least three prior violent felonies and thus qualified as an armed career criminal, the

district court imposed the 15-year sentence contemplated by the plea agreement. Id., Vol.

IV at 5.

       Under the ACCA, an offense qualified as a violent felony by satisfying at least one

of three definitions, which have come to be known as the Elements Clause, the

Enumerated Clause, and the Residual Clause. See 18 U.S.C. § 924(e)(2)(B); United

States v. Garcia, 877 F.3d 944, 946 (10th Cir. 2017), cert. denied, 139 S. Ct. 1257

(2019). After Mr. Manzanares’s conviction was final, the Supreme Court invalidated the

Residual Clause as being unconstitutionally vague, see Johnson v. United States, 135 S.

Ct. 2551, 2557, 2563 (2015) (Johnson II), and then made Johnson II applicable to cases

on collateral review, see Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

       In his timely Johnson II-based § 2255 motion, Mr. Manzanares asserted that

without the Residual Clause, his underlying New Mexico convictions (armed

robbery, aggravated assault with a deadly weapon, and aggravated battery) no longer

                                              2
qualified as violent felonies. The district court denied the motion, concluding that all

three underlying convictions satisfy the Elements Clause. ROA, Vol. I at 184. It

then granted a COA regarding the armed robbery conviction but denied a COA as to

the other two convictions.1 Id. at 186–87. Mr. Manzanares appeals the classification of

the armed robbery conviction as a violent felony, and he seeks to expand the COA to

allow him to appeal the decision regarding the aggravated assault with a deadly weapon

and aggravated battery convictions.

                                           II

      The district court granted a COA on the issue of whether armed robbery in

violation of N.M. Stat. Ann. § 30-16-2 satisfies the Elements Clause. We review the

district court’s legal rulings on a § 2255 motion de novo and its findings of fact for

clear error. Garcia, 877 F.3d at 947–48. Whether a prior conviction satisfies the

ACCA’s violent felony definition is a legal question we review de novo. Id. at 948.

The government bears the burden of proving a prior conviction qualifies under the

ACCA. Id.




      1
         The district court did not require Mr. Manzanares to show that the Residual
Clause played a role in his sentencing. See United States v. Snyder, 871 F.3d 1122,
1130 (10th Cir. 2017) (affirming denial of relief where the defendant was sentenced
under the Enumerated Clause, rather than the Residual Clause). We need not
determine what effect the Residual Clause had at sentencing, however, because any
error in applying the Residual Clause would be harmless, as the government has
shown that Mr. Manzanares has three convictions that qualify as violent felonies
under the Elements Clause. See United States v. Driscoll, 892 F.3d 1127, 1135–36
(10th Cir. 2018) (stating a Johnson II error would be harmless if the defendant has
three valid predicate convictions to support an ACCA sentence).
                                           3
       To determine this issue, we apply the “categorical approach,” focusing on the

elements of the crime of conviction, not the underlying facts. Id. The Elements Clause

provides that a conviction is a “violent felony” if it “has as an element the use,

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

18 U.S.C. § 924(e)(2)(B)(i). “[T]he phrase ‘physical force’ means violent force—

that is, force capable of causing physical pain or injury to another person.” Johnson

v. United States, 559 U.S. 133, 140 (2010) (Johnson I) (emphasis in original).

       We must first identify the minimum “force” required by state law for the crime of

conviction, and second determine if that force categorically fits the definition of physical

force. United States v. Ontiveros, 875 F.3d 533, 535–36 (10th Cir. 2017). “When

construing the minimum culpable conduct required for a conviction, such conduct only

includes that in which there is a realistic probability, not a theoretical possibility, the state

statute would apply.” Id. at 536 (internal quotation marks omitted).

       N.M. Stat. Ann. § 30-16-2 provides as follows:

       Robbery consists of the theft of anything of value from the person of
       another or from the immediate control of another, by use or threatened use
       of force or violence.

       Whoever commits robbery is guilty of a third degree felony.

       Whoever commits robbery while armed with a deadly weapon is, for the
       first offense, guilty of a second degree felony and, for second and
       subsequent offenses, is guilty of a first degree felony.

       After the district court issued its decision in this case, this court decided

Garcia, where we considered whether a conviction for third degree robbery under the

same New Mexico robbery statute qualified as a violent felony under the Elements

                                               4
Clause. We held that third degree robbery “categorically matches the definition of

‘physical force’ the Supreme Court assigned in Johnson I” as it “has an element the

use or threatened use of physical force against another person.” Garcia, 877 F.3d at

956. In concluding that robbery under § 30-16-2 “is a violent felony under the

ACCA’s Elements Clause,” id., we emphasized that the “mere[] snatching [of

property] without any resistance from the victim would not” satisfy “the element of

force for robbery” under the New Mexico statute, id. at 954 (citing State v. Curley,

939 P.2d 1103, 1105 (N.M. Ct. App. 1997)) (concluding that “when no more force is

used than would be necessary to remove property from a person who does not resist, then

the offense is larceny, and not robbery”).

       After Garcia was decided, the Supreme Court decided Stokeling v. United

States, 139 S. Ct. 544, 550 (2019), which held that the ACCA’s Elements Clause

“encompasses robbery offenses that require the criminal to overcome the victim’s

resistance.” After issuing Stokeling, the Supreme Court denied certiorari in Garcia.

See Garcia v. United States, 139 S. Ct. 1257 (2019).

       The government contends Stokeling and Garcia control the outcome in this

case. Mr. Manzanares responds that Garcia was wrongly decided and that New

Mexico robbery does not have as an element the use of physical force as described by

Stokeling. We agree with the government that Stokeling and Garcia are controlling.

       We acknowledge “[w]e cannot overrule the judgment of another panel of this

court. We are bound by the precedent of prior panels absent en banc reconsideration or a

superseding contrary decision by the Supreme Court.” In re Smith, 10 F.3d 723, 724

                                             5
(10th Cir. 1993) (per curiam). Further, “when a panel of this Court has rendered a

decision interpreting state law, that interpretation is binding on . . . subsequent panels of

this Court, unless an intervening decision of the state’s highest court has resolved the

issue.” Wankier v. Crown Equip. Corp., 353 F.3d 862, 866 (10th Cir. 2003).

       Garcia held that a conviction for simple robbery under § 30-16-2 satisfies the

Elements Clause, and, as Mr. Manzanares concedes, interpreted the statute to require

force that overcomes the victim’s resistance. See Aplt. Br. at 21 (“As the Garcia panel

acknowledged, numerous New Mexico cases expressly state that ‘any quantum of force

which overcomes resistance would be sufficient to support a robbery conviction.’”)

(citing Garcia, 877 F.3d at 956). If simple robbery satisfies the Elements Clause, then

necessarily armed robbery under the same statute would satisfy the Elements Clause. We

are bound by Garcia’s interpretation of the New Mexico robbery statute, and we are

unpersuaded by Mr. Manzanares’s arguments urging us to reconsider its holdings.

       First, Stokeling is not a superseding contrary Supreme Court decision. Rather than

undermining Garcia’s result, Stokeling compels it. Stokeling holds that the amount of

force sufficient to overcome a victim’s resistance satisfies Johnson I’s force standard.

139 S. Ct. at 555; see also United States v. Ash, 917 F.3d 1238, 1242 (10th Cir. 2019),

cert. filed, No. 18-9639 (June 12, 2019) (noting, after Stokeling, that “[t]he line is drawn,

therefore, between robbery that can be accomplished by the mere snatching of property

and robbery that requires overcoming even slight victim resistance”). And, as interpreted

in Garcia, New Mexico’s robbery statute distinguishes “robbery” from “larceny” using a

nearly identical standard as Stokeling: “[R]obbery is committed when attached property is

                                              6
snatched or grabbed by sufficient force so as to overcome the resistance of attachment,”

Curley, 939 P.2d at 1105, but it is not committed by a “mere[] snatching . . . without any

resistance from the victim,” Garcia, 877 F.3d at 954. See also State v. Martinez, 513

P.2d 402, 402 (N.M. Ct. App. 1973) (affirming robbery conviction where “there was

more than a ‘mere snatching’”); State v. Sanchez, 430 P.2d 781, 782 (N.M. Ct. App.

1967) (stating that the force used “must overcome the victim’s resistance” and reversing

a robbery conviction because facts were “comparable to those pickpocket or purse

snatching cases”).

       To be sure, in Ash, we noted that the standard applied in Garcia was

“arguably . . . different” than the standard applied by the Supreme Court in Stokeling.

917 F.3d at 1242 n.5. That is, rather than determining only whether New Mexico robbery

requires force to overcome a victim’s resistance, Garcia drew a different line: whether

the New Mexico statute requires “the use of any physical force” to overcome the victim’s

resistance or something “more than minimal actual force.” 877 F.3d at 950 (emphasis in

original). But Stokeling held that either of these readings of New Mexico law would

satisfy Johnson I, concluding that any “force necessary to overcome a victim’s physical

resistance is inherently ‘violent’ in the sense contemplated by Johnson.” 139 S. Ct. at

553. Thus, Stokeling does not undermine Garcia’s result.2



       2
         Mr. Manzanares also relies on our post-Stokeling decision in United States v.
Bong, 913 F.3d 1252 (10th Cir. 2019), but Bong involved a different state statute than
the one at issue here. In Bong, we concluded that a conviction under Kansas’s robbery
statute did not qualify as a violent felony because Kansas law, in contrast with that of
New Mexico, permits a defendant to be convicted of violating the statute without any
                                             7
       Moreover, because there has been no intervening change in state law, we are

bound by Garcia’s interpretation of New Mexico’s robbery statute. See Wankier, 353

F.3d at 866. Mr. Manzanares argues that a post-Garcia state law decision, State v.

Barela, No. A-1-CA-34945, 2018 WL 4959122, at *2 (N.M. Ct. App. Sept. 4, 2018),

illustrates that New Mexico robbery can be perpetrated without any use, attempted use, or

explicit threats of force. Aplt. Rep. Br. at 5. In Barela, the New Mexico Court of

Appeals upheld the defendant’s robbery conviction because the evidence showed the

defendant had uttered threats of violence, which satisfied the state’s obligation to show

that the defendant took the purse by threatened force or violence. See id. Because Barela

required a threatened use of violence to uphold a robbery conviction, it likewise does not

undermine Garcia.3



resistance by or injury to the victim. 913 F.3d at 1262, 1264. In other words, Kansas
robbery falls on the other side of the “snatching” line.
       3
         Even if we were not bound by Garcia’s interpretation of New Mexico’s
robbery statute, we would conclude that the statute, as applied by New Mexico
courts, requires force that overcomes the victim’s resistance rather than the mere
snatching of property. See Curley, 939 P.2d at 1105; Martinez, 513 P.2d at 402;
Sanchez, 430 P.2d at 782; see also State v. Bernal, 146 P.3d 289, 296 (N.M. 2006)
(noting that robbery is “distinct from larceny because it requires, and is designed to
punish, the element of force”). Mr. Manzanares, however, points to State v. Clokey,
553 P.2d 1260, 1260 (N.M. 1976), where the New Mexico Supreme Court held that
“the evidence supported the verdict of the jury that the snatching of the purse was
accompanied by force sufficient to convert the crime from larceny to robbery.” But
the New Mexico Court of Appeals, in its post-Clokey decisions, has not interpreted
Clokey as requiring an amount of force less than necessary to overcome a victim’s
resistance. See, e.g., Curley, 939 P.2d at 1105 (noting that “the issue in [Clokey] was
not whether there was evidence justifying a lesser-included-offense instruction [of
larceny]”).

                                             8
       Given Stokeling’s holding that force which overcomes a victim’s resistance is

violent force, and Garcia’s holding that New Mexico’s robbery statute requires that level

of force, we affirm the district court’s conclusion that Mr. Manzanares’s New Mexico

armed robbery conviction satisfies the Elements Clause.

                                            III

       Mr. Manzanares has also moved to expand the COA to address his other two

underlying prior convictions. A COA requires “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), meaning that Mr. Manzanares “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).

                                             A

       One of Mr. Manzanares’s prior convictions is for aggravated assault with a deadly

weapon, in violation of N.M. Stat. Ann. § 30-3-2(A). Under N.M. Stat. Ann.

§ 30-3-2(A), “[a]ggravated assault consists of . . . unlawfully assaulting or striking at

another with a deadly weapon.” This court has twice held that § 30-3-2(A) satisfies

the Elements Clause. See United States v. Maldonado-Palma, 839 F.3d 1244, 1250

(10th Cir. 2016) (holding § 30-3-2(A) is categorically a crime of violence under the

Elements Clause of United States Sentencing Guidelines Manual § 2L1.2);4 United States



       4
        Given the “similarity in language between the ACCA and [the Sentencing
Guidelines]” defining “violent felony” and “crime of violence,” respectively, we may
“look[ ] to precedent under one provision for guidance under another in determining
whether a conviction qualifies as a violent felony.” Ramon Silva, 608 F.3d at 671
(quotations omitted).
                                             9
v. Ramon Silva, 608 F.3d 663, 674 (10th Cir. 2010) (holding § 30-3-2(A) is categorically

a violent felony under the Elements Clause), abrogated on other grounds by Mathis v.

United States, 136 S. Ct. 2243 (2016).

       Mr. Manzanares argues that Maldonado-Palma and Ramon Silva were wrongly

decided and that they are undermined by a subsequent New Mexico Court of Appeals

decision, State v. Branch, 417 P.3d 1141 (N.M. Ct. App. 2018) (Branch II), because

Branch II holds that aggravated assault does not require a specific intent to use a

deadly weapon “against the person of another.” But Branch II’s holding that

aggravated assault is a general-intent crime did not alter the state of the law. Rather,

as Ramon Silva recognized, “aggravated assault does not require proof of a specific

intent to assault the victim, or of a specific intent to injure or even frighten the

victim[; thus confirming] that aggravated assault is not a specific intent crime, but

rather is a general intent crime.” 608 F.3d at 673 (brackets, citations, and internal

quotation marks omitted). The offense is a violent felony because it requires

“unlawfully assaulting or striking at another,” § 30-3-2(A), employing a deadly

weapon, Maldonado-Palma, 839 F.3d at 1250, with general criminal intent, see

Ramon Silva, 608 F.3d at 673, all of which we have held at least threaten the use of

physical force against the person of another. Given this court’s binding precedent, no

reasonable jurist could debate the district court’s conclusion that Mr. Manzanares’s

New Mexico conviction for aggravated assault with a deadly weapon satisfies the

Elements Clause.



                                            10
                                            B

      Mr. Manzanares’s other prior conviction is for aggravated battery, in violation of

N.M. Stat. Ann. § 30-3-5(C). N.M. Stat. Ann. § 30-3-5 states:

             A. Aggravated battery consists of the unlawful touching or
             application of force to the person of another with intent to
             injure that person or another.

             B. Whoever commits aggravated battery, inflicting an injury
             to the person which is not likely to cause death or great bodily
             harm, but does cause painful temporary disfigurement or
             temporary loss or impairment of the functions of any member
             or organ of the body, is guilty of a misdemeanor.

             C. Whoever commits aggravated battery inflicting great
             bodily harm or does so with a deadly weapon or does so in
             any manner whereby great bodily harm or death can be
             inflicted is guilty of a third degree felony.

      Mr. Manzanares argues that a conviction under § 30-3-5(C) does not

categorically require Johnson I-level force because “New Mexico aggravated battery

is focused on the resulting harm to the person[,] not the force behind the unlawful

touching.” Aplt. Br. at 57. For this proposition, Mr. Manzanares relies on United

States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005), and United States v.

Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008). Aplt. Br. at 54.

      However, we expressly overruled Rodriguez-Enriquez and Perez-Vargas in

United States v. Ontiveros, 875 F.3d 533, 536 (10th Cir. 2017), citing and relying on

the Supreme Court’s decision in United States v. Castleman, 572 U.S. 157 (2014).

The Supreme Court in Castleman “specifically rejected the contention that ‘one can

cause bodily injury without the use of physical force.’” Ontiveros, 875 F.3d at 536


                                           11
(quoting Castleman, 572 U.S. at 170). Thus, in Ontiveros, we concluded that

Colorado second-degree assault is a crime of violence, even though the crime’s

elements “focus on the result of the conduct (serious bodily injury), not the conduct

itself.” Id. (holding that “Perez-Vargas and Rodriguez-Enriquez relied on reasoning

that is no longer viable in light of Castleman”). Mr. Manzanares contends that

Rodriguez-Enriquez and Perez-Vargas “should remain binding precedent,” Aplt. Br.

at 57, but we are bound by Ontiveros and the Supreme Court’s ruling in Castleman.

The district court’s conclusion that Mr. Manzanares’s conviction under § 30-3-5(C)

satisfies the Elements Clause is not reasonably debatable.

                                          IV

      We affirm the district court’s denial of Mr. Manzanares’s § 2255 motion, deny

his motion to expand the COA, and deny as moot the government’s motion for

summary affirmance.




                                          12
