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

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

      Plaintiff - Appellee,

v.                                                            No. 17-2149
                                                    (D.C. No. 1:16-CR-01982-JAP-1)
JESUS RODRIGUEZ,                                               (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MATHESON, and EID, Circuit Judges.**
                  _________________________________

       Jesus Rodriguez pled guilty to being a felon in possession of a firearm in violation

of 18 U.S.C. § 922(g). The district court enhanced his sentence to 15 years in prison

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

been convicted of three prior violent felony offenses that qualified him for the

enhancement.

       Mr. Rodriquez challenges his sentence on appeal, arguing that two of the prior

offenses, both for violating N.M.S.A. § 30-3-16(C)—“aggravated battery against 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         This order and judgment is not binding precedent, except under the doctrines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.
       **
          After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
household member inflicting great bodily harm”—are not violent felonies under the

ACCA. We have appellate jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

       In United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017), this court held that a

Colorado statute which required serious bodily injury could not be violated without the

use of physical force and therefore a conviction under the statute qualifies as a crime of

violence under United State Sentencing Guideline § 4B1.2.1 Id. at 538-39. This court

denied a petition for rehearing en banc in this case on January 2, 2018, and the mandate

issued on January 10, 2018.

       On appeal, Mr. Rodriguez concedes that, based on Ontiveros, his convictions

under the comparable New Mexico statute qualify as violent felonies under the ACCA

and his sentence must stand. Aplt. Br. at 6-7. He contends Ontiveros was wrongly

decided and raises the issue to preserve it for further review. Id.

       “[A]bsent en banc consideration or an intervening Supreme Court decision that

is contrary to or invalidates our previous analysis,” United States v. White, 782 F.3d




       1
         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.” United States v. Ramon Silva, 608
F.3d 663, 671 (10th Cir. 2010) (quotations omitted).
                                              2
1118, 1126-27 (10th Cir. 2015)(quotations omitted), this court’s decision in

Ontiveros binds this panel. We therefore affirm Mr. Rodriguez’s sentence.


                                           Entered for the Court


                                           Scott M. Matheson, Jr.
                                           Circuit Judge




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