                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                January 4, 2017
                                     PUBLISH                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
       v.                                               No. 16-1237
 MICHAEL KEVIN HARRIS,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF COLORADO
          (D.C. No. 1:04-CR-00158-CMA, 1:16-CV-01144-CMA)


Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs) Office of the Federal Public Defender, Denver,
Colorado, for Appellant.

J. Bishop Grewell, Assistant U.S. Attorney (Bob Troyer, Acting U.S. Attorney,
with him on the brief) Office of the U.S. Attorney for the District of Colorado,
Denver, Colorado, for Appellee.


Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.


TYMKOVICH, Chief Judge.


      The issue in this appeal questions what should be the obvious: That

statutory robbery is a “violent felony” under the Armed Career Criminal Act
(ACCA). But in the last twelve months, eleven circuit-level decisions have

reached varying results on this very narrow question—in examining various state

statutes, five courts have found no violent felony and six have found a violent

felony. So the obvious may not be so plain. Upon independent examination of

the Colorado robbery statute here, however, we believe Colorado robbery

qualifies as a violent felony because it has as an element the use or threatened use

of “physical force” against another person that is capable of causing physical pain

or injury.

      The ACCA requires a fifteen-year mandatory minimum sentence when the

defendant has three or more qualifying “violent felonies.” 18 U.S.C. § 924(e)(1).

The ACCA’s scheme provides three ways the government can prove a prior

conviction qualifies: the elements clause, § 924(e)(2)(B)(i); the enumerated-

offenses clause, § 924(e)(2)(B)(ii); and the residual clause, § 924(e)(2)(B)(ii). In

June 2015, however, the Supreme Court held the residual clause to be

unconstitutionally vague, Johnson v. United States (Johnson II), 135 S. Ct. 2551,

2563 (2015), leaving only the elements and the enumerated-offenses clauses.

Because statutory robbery is not one of the enumerated offenses in

§ 924(e)(2)(B)(ii), this appeal involves the elements clause.

      After the Supreme Court held its pronouncement in Johnson II must be

applied retroactively to cases on collateral review, Welch v. United States, 136 S.

Ct. 1257 (2016), Michael Harris moved to vacate his sentence under 28 U.S.C.

                                         -2-
§ 2255. He argued because his 1979 Colorado robbery conviction no longer

qualified under the residual clause, he did not have the requisite number of

qualifying violent felony convictions. The government conceded that the

applicability of the § 924(e)(1) enhancement turned on whether Harris’s Colorado

robbery conviction satisfied the elements clause.

      In an expedited decision, the district court denied Harris § 2255 relief,

finding Colorado’s robbery statute satisfied the elements clause because it has as

an element the use or threatened use of “physical force” against another person.

We agree. Exercising jurisdiction under 28 U.S.C. §§ 1291, 2255(d), we affirm.

                                I. Background

      In 2004, Michael Harris pleaded guilty to possessing a firearm as a

convicted felon in violation of 18 U.S.C. § 922(g)(1). The maximum sentence for

a felon-in-possession conviction is typically ten years. § 924(a)(2). But because

the sentencing court found Harris had three qualifying “violent felonies” or

“serious drug offenses,” as defined by the ACCA, the court applied the

§ 924(e)(1) enhancement and sentenced Harris to the fifteen-year mandatory

minimum. The sentencing court relied on the following convictions: (1) robbery

(Colorado, 1979); (2) second-degree burglary (Colorado, 1983); (3) distribution

of a controlled substance (Colorado, 1998); and (4) distribution of a controlled

substance (Colorado, 1998). This court affirmed Harris’s fifteen-year sentence on

direct appeal. United States v. Harris, 447 F.3d 1300 (10th Cir. 2006).

                                         -3-
      Fast forward eleven years from the date of conviction. In June 2015, the

Supreme Court in Johnson II struck the residual clause in § 924(e)(2)(B)(ii) on

vagueness grounds. 135 S. Ct. at 2563. Because Johnson II eliminated the

broader of the clauses defining violent felony in § 924(e)(2)(B)—i.e., the residual

clause—the result has been that prior residual-clause convictions must now stand

or fall based on an analysis under the elements clause. And that is exactly what is

at issue in this appeal.

      In response to Johnson II and Welch Harris moved to vacate his sentence

under 28 U.S.C. § 2255. He argued that without the residual clause, he no longer

had three qualifying violent felony convictions. The government conceded

Harris’s second-degree burglary conviction no longer qualified as a violent

felony, but maintained his robbery conviction remained a violent felony under the

elements clause in § 924(e)(2)(B)(i). Thus, the parties agreed that whether Harris

had a third qualifying conviction was based on whether Colorado’s robbery

statute satisfies the elements clause, meaning whether it has as an element the use

or threatened use of physical force against another person. The district court

sided with the government and found that “robbery in Colorado—as that crime

has been interpreted by Colorado courts—is a ‘violent felony’ under the ACCA

because it has as an element the use, attempted use, or threatened [use] of

physical force against the person of another.” But other district court judges have

found the opposite, see United States v. Crump, No. 15-CR-123 (D. Colo. Dec. 2,

                                         -4-
2015) (oral ruling); United States v. Estes, No. 05-CR-187 (D. Colo. Sept. 15,

2016). We now resolve the conflict.

                                II. Analysis

      A motion to vacate a sentence under 28 U.S.C. § 2255 “is generally the

exclusive remedy for a federal prisoner seeking to ‘attack[] the legality of

detention.’” Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011).

“[W]e review the district court’s legal rulings on a § 2255 motion de novo and its

findings of fact for clear error.” United States v. Pearce, 146 F.3d 771, 774 (10th

Cir. 1998) (citing United States v. Cox, 83 F.3d 336, 338 (10th Cir. 1996)).

      Under the ACCA, a person who violates 18 U.S.C. § 922(g)(1) is subject to

an enhanced sentence if he has three or more prior convictions for a “violent

felony.” § 924(e)(1). A violent felony is defined as “any crime punishable by

imprisonment for a term exceeding one year” that:

      [1] Elements Clause: “has as an element the use, attempted use, or
      threatened use of physical force against the person of another,”
      § 924(e)(2)(B)(i);

      [2] Enumerated-Offenses Clause: is a categorical match to the generic
      offenses of “burglary, arson, or extortion,” § 924(e)(2)(B)(ii); or

      [3] Residual Clause: “otherwise involves conduct that presents a serious
      potential risk of physical injury to another,” § 924(e)(2)(B)(ii).

In Johnson II, the Supreme Court struck the residual clause as unconstitutionally

vague. 135 S. Ct. at 2563. Writing for the Court, Justice Scalia explained, the

Court had decided five residual-clause cases in eight years with varying results.

                                         -5-
Id. at 2556 (collecting cases). “We are convinced that the indeterminacy of the

wide-ranging inquiry required by the residual clause both denies fair notice to

defendants and invites arbitrary enforcement by judges.” Id. at 2557. As a result,

if a prior conviction is not one of the enumerated offenses in § 924(e)(2)(B)(ii),

the focus turns to the elements clause in § 924(e)(2)(B)(i).

      To determine if a prior conviction qualifies as a violent felony under the

ACCA, we apply the categorical approach, focusing on the elements of the crime

of conviction, not the underlying facts. Descamps v. United States, 133 S. Ct.

2276, 2283 (2013). The question we must answer then is whether Colorado’s

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

physical force against the person of another.” See § 924(e)(2)(B)(i). This inquiry

requires application of both federal law and Colorado state law. Federal law

defines the meaning of the phrase “use, attempted use, or threatened use of

physical force” in § 924(e)(2)(B)(i). Johnson v. United States (Johnson I), 559

U.S. 133, 138 (2010) (“The meaning of ‘physical force’ in § 924(e)(2)(B)(i) is a

question of federal law . . . .”); Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) (applying

federal law to define “use”). And state law defines the substantive elements of

the crime of conviction. Johnson I, 559 U.S. at 138 (“We are . . . bound by the

Florida Supreme Court’s interpretation of state law, including its determination of

the elements of [the crime of conviction].”).




                                          -6-
      Harris limits his challenge to the elements clause’s “physical force”

component. A two-step inquiry resolves whether Colorado’s robbery statute

requires physical force as that term is used in the ACCA: we must identify the

minimum “force” required by Colorado law for the crime of robbery and then

determine if that force categorically fits the definition of physical force. See

Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (“Because we examine what

the state conviction necessarily involved . . . we must presume that the conviction

‘rested upon [nothing] more than the least of th[e] acts’ criminalized, and then

determine whether even those acts are encompassed by the generic federal

offense.” (alterations in original) (emphasis added)). The Supreme Court has

reminded us that in construing the minimum culpable conduct, such conduct only

includes that in which there is a “realistic probability, not a theoretical

possibility” the state statute would apply. Id. at 1685 (citation omitted).

Decisions from the state supreme court best indicate a “realistic probability,”

supplemented by decisions from the intermediate-appellate courts.

      Before discussing Colorado courts’ construction of its robbery statute, we

first consider how the Supreme Court has defined “physical force” for purpose of

the elements clause in § 924(e)(2)(B)(i). For it is this definition that is the point

of comparison.




                                          -7-
      A. “Physical Force” Means “Violent Force”

      The Supreme Court’s decision in Johnson I supplies the meaning of

physical force as it is used in the elements clause. See Johnson I, 559 U.S. at

135. Although the ACCA does not define physical force, Justice Scalia writing

for the majority in Johnson I sought to give the phrase its ordinary meaning. Id.

at 138. The term “physical” plainly means “force exerted by and through

concrete bodies,” distinguished from “intellectual force or emotional force.” Id.

Moving to the noun “force,” the Court observed that it “poses the difficulty.” Id.

At common law, force could be “satisfied by even the slightest offensive

touching,” but the Court rejected this traditional definition, explaining that

ultimately “context determines meaning.” Id. at 139. And in an oft-quoted

passage, the Court stated,

             We think it clear that in the context of a statutory
             definition of ‘violent felony,’ the phrase ‘physical force’
             means violent force—that is, force capable of causing
             physical pain or injury to another person.

Id. at 140 (emphasis in original). Reaffirming its definition, the Court explained,

“Even by itself, the word ‘violent’ in § 924(e)(2)(B) [referencing the subsection

defining violent felony] connotes a substantial degree of force.” Id. at 140. And

“[w]hen the adjective ‘violent’ is attached to the noun ‘felony,’ its connotation of

strong physical force is even clearer.” Id. at 140–41 (citing among others United

States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992) (Breyer, C.J.) (“[T]he term to be


                                         -8-
defined, ‘violent felony,’ . . . calls to mind a tradition of crimes that involve the

possibility of more closely related, active violence.”)); see also Leocal, 543 U.S.

at 11 (“[E]mphasis on the use of physical force against another person . . .

suggests a category of violent, active crimes that cannot be said naturally to

include DUI offenses.” (emphasis added)).

      It is important to keep in mind why it was necessary for the Court to use

the language it did. For it was rejecting the government’s argument that physical

force means “force” known in common law battery parlance. See Johnson I, 559

U.S. at 139 (“There is, however, a more specialized legal usage of the word

‘force’: its use in describing one of the elements of the common-law crime of

battery . . . .”). That is, the force element is satisfied by even the slightest

offensive touching. Id. (citing among others 3 William Blackstone,

Commentaries on the Laws of England 120 (1768) [hereinafter Blackstone]). So

it makes sense that the Court, in construing the meaning of physical force in the

ACCA’s violent felony definition, referenced “a substantial degree of force,”

“strong physical force,” or “powerful force.” Indeed, the Court was

differentiating between the force required for the common law offense of battery.

      This is further illustrated by the Court’s rejection of the government’s

claim that, because Congress failed to add a “bodily injury” qualifier to physical

force, compare § 922(g)(8)(C)(ii) (“the use, attempted use, or threatened use of

physical force against such intimate partner or child that would reasonably be

                                           -9-
expected to cause bodily injury”), the merest of touches must suffice. But the

Court observed even as a matter of logic, the absence of the qualifier does not

suggest physical force only requires a mere touching. “It might consist, for

example, of only that degree of force necessary to inflict pain—a slap in the face,

for example.” Johnson I, 559 U.S. at 143 (emphasis added). And in his

concurrence in United States v. Castleman, Justice Scalia expanded on that

understanding, explaining that force “capable of causing physical pain or injury,”

includes such conduct as “[h]itting, slapping, shoving, grabbing, pinching, biting,

[and] hair pulling.” 134 S. Ct. 1405, 1421 (2014) (citation omitted); id. at 1422

(citing Johnson I and “identifying ‘a slap in the face’ as conduct that might rise to

the level of violent force”). 1

       1
         Harris contends the Castleman majority listed “pushing, grabbing,
shoving, slapping, and hitting” as non-violent force for purpose of Johnson I.
Reply Br. 5 (quoting Castleman, 134 S. Ct. at 1411 (majority opinion)). This
asks too much of what the majority said. In the paragraph Harris references, the
Court attempted to differentiate between “violence,” as construed in Johnson I,
and “domestic violence.” See Castleman, 134 S. Ct. at 1411. “‘Domestic
violence’ is not merely a type of ‘violence’; it is a term of art encompassing acts
that one might not characterize as ‘violent’ in a nondomestic context.” Id. The
Court then cited as illustrative an enumerated list of conduct provided by the
DOJ. But the Court was sure to explain,

              The Courts of Appeals have generally held that mere
              offensive touching cannot constitute the ‘physical force’
              necessary to a ‘crime of violence,’ just as we held in
              Johnson that it could not constitute the ‘physical force’
              necessary to a ‘violent felony.’” . . . Nothing in today’s
              opinion casts doubt on these holdings, because—as we
              explain—‘domestic violence’ encompasses a range of
                                                                       (continued...)

                                         -10-
      With that understanding of “physical force” in mind—that is, physical force

means violent force, or force capable of causing physical pain or injury to another

person—we turn to whether Colorado’s robbery statute has as an element the use

or threatened use of physical force.

      B. Statutory Robbery in Colorado Requires the Use or Threatened Use of
      “Physical Force”

      The Colorado Supreme Court has stated that robbery in Colorado requires a

“violent taking,” which we believe is consistent with the physical force required

by the ACCA’s elements clause. To be convicted of robbery in Colorado a person

must “knowingly take[] anything of value from the person or presence of another

by the use of force, threats, or intimidation.” Colo. Rev. Stat. § 18-4-301(1)

(2016) (emphasis added). It is what is required by the “use of force, threats, or

intimidation” element that is at the center of this appeal. 2




      1
          (...continued)
                force broader than that which constitutes ‘violence’
                simpliciter.

Id. at 1411 n.4.
      2
         Colorado’s robbery statute sets forth alternative means for satisfying the
statute’s conduct element, see Mathis v. United States, 136 S. Ct. 2243, 2249
(2016)—i.e., “force, threats, or intimidation,” Colo. Jury Instr. (Crim.) 4–3:01
(2016) (emphasis added) (listing “by the use of force, threats, or intimidation” as
one element). As such, the statute is indivisible and we apply the categorical
approach, Mathis, 136 S. Ct. at 2248, focusing our attention on “‘the least of th[e]
acts’ criminalized,” Moncrieffe, 133 S. Ct. at 1684 (alteration in original).

                                          -11-
      We start with the Colorado Supreme Court’s most recent interpretation of

the statute. In People v. Borghesi, the court set out to decide whether Colorado

robbery is a crime against the person or a crime against property. 66 P.3d 93, 99

(Colo. 2003). Borghesi involved a defendant’s double-jeopardy challenge after he

was convicted of two counts of robbery for forcefully taking money from two

store clerks during a shift change—so, one taking, but from two people. Id. at 95,

97. The court noted Colorado’s robbery statute was revised and reenacted in

1971 and tracks the elements of common law robbery. Id. at 99. Because “there

is no indication that the legislature has departed from the usual and customary

meaning of any of the common law terms,” the court sought guidance from the

common law. Id. (citing People v. Jenkins, 599 P.2d 912, 913 (Colo. 1979)).

      Citing Blackstone, Odgers on the Common Law of England, and Professor

LaFave’s popular criminal law treatise, the court reasoned that common law

robbery requires a taking “by violence or intimidation.” 3 Id. The court stated it

      3
        4 Blackstone 243 (“Open and violent larceny from the person, or
robbery, . . . is the felonious and forcible taking, from the person of another, of
goods or money to any value, by violence or putting him in fear.” (third emphasis
added)); 1 W. Blake Odgers, The Common Law of England 332 (2d ed. 1920)
(“Robbery is the unlawful taking possession of the goods of another by means of
violence or threats of violence, used with the object of obtaining those goods
from the owner, without his consent and with the intention of depriving him
permanently of all the benefits of his ownership.” (emphasis added)); 3 Wayne R.
LaFave, Substantive Criminal Law § 20.3 (2d ed. & 2015 Update) (explaining
common law robbery required a taking “by means of force or putting in fear”
(emphasis added)). See also 2 Joel Prentiss Bishop, Bishop on Criminal Law 860
(John M. Zane & Carl Zollmann eds., T. H. Flood & Co. 1923) (collecting
                                                                        (continued...)

                                         -12-
is the “violence” that distinguishes common law larceny from robbery. “Common

law robbery . . . is easily distinguishable from the property crime of larceny. . . .

[T]here can be no robbery without violence, and there can be no larceny with it.”

Id. Furthering that understanding, the court explained that at common law

robbery was thought to be “amongst the most heinous felonies.” Id. at 100

(quoting Rollins M. Perkins & Ronald N. Boyce, Criminal Law 344 (3d ed.

1982)); see also Edw. Coke, The Third Part of the Institutes of the Laws of

England: Concerning High Treason, and Criminal Causes 68 (London, W.

Rawlins 1680) (discussing robbery and explaining “[t]his is agreed of, of all, both

ancient and late, without any question, and it is deemed in the Law to be among

the most hainous Felonies”); 3 Wayne R. LaFave, Substantive Criminal Law

§ 20.3 (2d ed. & 2015 Update) [hereinafter LaFave] (“Robbery, a common-law

felony, . . . may be thought of as aggravated larceny—misappropriation of

property under circumstances involving a danger to the person as well as a danger

to property—and this deserving greater punishment than that provided by

larceny.” (footnotes omitted)).

      Accordingly, the court stated, “Just as the common law of robbery

emphasizes the violence associated with the taking, so do our cases construing

robbery statutes. We have stated that the gravamen of the offense of robbery is


      3
        (...continued)
definitions from Coke, Hale, Hawkins, East, Blackstone, and Lord Mansfield).

                                          -13-
the violent nature of the taking.” Borghesi, 66 P.3d at 100–01 (citing Colorado

cases from 1933 to 1986 (footnotes omitted)). And because Colorado precedents

are consistent with “the common law emphasis on the assaultive nature of the

crime,” Colorado’s “robbery statutes are primarily intended to protect persons and

not property.” Therefore, the court rejected the defendant’s double-jeopardy

challenge.

      Thus far, so much is clear: That robbery in Colorado requires a violent

taking. See id. at 101 n.12 (stating Colorado robbery “involves the violent taking

‘from a person’”). But Harris argues we should not take the Colorado Supreme

Court at its word—for it might not have meant “violent” when it said “violent.” 4

Op. Br. 12. And for this point he relies on People v. Davis, 935 P.2d 79 (Colo.

App. 1996). But Davis is a Colorado Court of Appeals decision that predates the

Colorado Supreme Court’s Borghesi decision. To the extent Davis suggests a

Colorado robbery conviction can be based on less than violent force, it is not

controlling in light of Borghesi. 5

      4
          We note the dictionary defines “violent” as “characterized by extreme
force . . . : marked by abnormally sudden physical activity and intensity.”
Webster’s New International Dictionary 2554 (3d ed. 1961).
      5
         Neither of Harris’s other two cases—Leyba v. People, 481 P.2d 417
(Colo. 1971) and People v. Fox, 928 P.2d 820 (Colo. App. 1996)—explicitly
discuss the force required to constitute robbery in Colorado. Moreover, in Fox,
the court described the force used by the defendant as a “forceful shove.” And in
Leyba, the defendant approached the victim, and when she started to scream, he
placed his hand over her mouth. Surely this was enough to incite fear of personal
                                                                      (continued...)

                                        -14-
      Because Colorado remains committed to the common law definition of

robbery, we do not find persuasive other recent circuit-level decisions concluding

that robbery is not a violent felony. For instance, in United States v. Parnell,

although the Ninth Circuit concluded Massachusetts’s robbery statute did not

constitute a violent felony, it was careful to point out that Massachusetts had

expressly departed from common law principles. 818 F.3d 974, 978–79 (9th Cir.

2016) (stating Massachusetts does not require resistance by the victim and noting

Massachusetts has declined to follow the majority approach); id. at 982 (Watford,

J., concurring) (explaining “Massachusetts has abandoned the traditional

common-law definition of robbery. To distinguish robbery from larceny, the

common law required more than just stealing property from the person of another.

To commit robbery, the defendant also had to use violence or intimidation to

coerce the victim into parting with his property. . . . In Massachusetts, however,

a defendant may be convicted of robbery without using violence or intimidation

of any sort. . . . It’s enough . . . if the defendant sneaks up behind the victim and




      5
        (...continued)
harm—indeed, she “scratched [the defendant’s] right cheek and bit his right hand”
to escape. 481 P.2d at 418. But because the force employed was not at issue in
either case, the courts did not pass judgment on whether the conduct exhibited the
requisite degree of force for the crime of robbery.

                                          -15-
snatches a purse from her hand without so much as touching the victim or doing

anything to put her in fear beforehand.”). 6

      As our explanation of Borghesi makes clear, we believe Colorado’s robbery

statute more closely tracks the state robbery statutes addressed in the circuit-level

decisions finding robbery to be a violent felony. Thus, for example, the Eighth

Circuit stated the Michigan Supreme Court has codified the common law

definition of robbery, requiring a taking “by the use of force, violence, or putting

in fear.” United States v. Lamb, 638 F. App’x 575, 576 (8th Cir.) (unpublished)

(citing People v. Randolph, 648 N.W.2d 164, 174 (Mich. 2002)), vacated on other

grounds, 2016 WL 4399374 (Nov. 28, 2016). 7 The Eighth Circuit followed by

concluding that robbery, as construed by the Michigan Supreme Court, “is clearly

limited to conduct that accomplishes a forceful taking (or attempted taking) by

using violence or the threat of violence to put the victim in fear of ‘immediate



      6
          The decisions from the Fourth and Eighth Circuits are also unpersuasive
for similar reasons. See United States v. Bell, 840 F.3d 963, 966 (8th Cir. 2016)
(stating that robbery in Missouri requires physical contact but it need not cause
physical pain or injury); United States v. Gardner, 823 F.3d 793, 803 (4th Cir.
2016) (explaining that for North Carolina common law robbery “the degree of
force used is immaterial, so long as it is sufficient to compel the victim to part
with his property” (citation omitted)); United States v. Eason, 829 F.3d 633, 641
(8th Cir. 2016) (observing that “physical force” in Arkansas is defined as “any
. . . [b]odily impact, restraint, or confinement” (citation omitted) (alterations in
original) (emphasis added)).
      7
         The Supreme Court vacated the Eighth Circuit’s decision in Lamb to
allow the court to reexamine whether Wisconsin burglary is a violent felony in
light of Mathis,136 S. Ct. 2243.

                                         -16-
personal injury.’” Id. at 577 (citation omitted). “[R]obbery is a larceny

aggravated by the fact that the taking is from the person, or in his presence,

accomplished with force or the threat of force.” Id. (alteration in original)

(citation omitted). Thus, the court deemed Lamb’s prior Michigan robbery

convictions violent felonies under the elements clause in § 924(e)(2)(B)(i). 8

      Based on the foregoing, we conclude robbery by “force” in Colorado

categorically matches the definition of “physical force” assigned by the Supreme

Court in Johnson I (namely, “violent force—that is, force capable of causing

physical pain or injury to another person”). A question remains, however,

whether the constructive-force means in Colorado’s robbery statute—i.e., by




      8
         See also United States v. Doctor, --- F.3d ----, 2016 WL 6833343, at *5
(4th Cir. 2016) (concluding South Carolina common law robbery is violent
felony); United States v. Duncan, 833 F.3d 751, 758 (7th Cir. 2016) (concluding
Indiana robbery statute is violent felony); United States v. Jenkins, 651 F. App’x
920, 928 (11th Cir. 2016) (unpublished) (concluding Florida robbery statute is
“crime of violence” under U.S.S.G. § 4B1.2(a)’s elements clause); United States
v. Priddy, 808 F.3d 676 (6th Cir. 2015) (concluding Tennessee robbery statute is
violent felony).

                                         -17-
threats or intimidation—require the use or threatened use of physical force. 9 We

also answer in the affirmative.

      Again, the starting point to answering this question is the Colorado

Supreme Court’s express word. In Jenkins, the court sought to construe

Colorado’s felon-in-possession statute, which criminalized the possession of a

firearm if the defendant had a prior felony conviction “involving the use of force

or violence.” 599 P.2d at 912 (citation omitted). Specifically, the question

answered in Jenkins was whether robbery by intimidation required “force or

violence” consistent with the felon-in-possession statute. Id. at 913. The court

explained that “force or fear is the main element of the offense of robbery” and

concluded “that the offense of robbery, whether committed by actual force, or by


      9
         In applying the categorical approach, the Supreme Court has instructed us
to identify the least culpable conduct criminalized by the state statute.
Moncrieffe, 133 S. Ct. at 1684. Only if the least culpable conduct fits the federal
comparison does a state crime qualify as a violent felony under the ACCA. By
limiting our analysis to a particular means (here, actual force), we would
shortchange what is required by the categorical approach. For Harris’s conviction
to qualify as a violent felony under the ACCA, we must be able to conclude that
Colorado robbery categorically fits the ACCA’s violent felony definition. See
Descamps, 133 S. Ct. at 2290–91 (“[E]very element of every statute can be
imaginatively transformed . . . so that every crime is seen as containing an infinite
number of sub-crimes corresponding to ‘all the possible ways an individual can
commit’ it. [United States v.] Aguila–Montes, 655 F.3d [915, 927 (9th Cir.
2011)]. (Think: Professor Plum, in the ballroom, with the candlestick?; Colonel
Mustard, in the conservatory, with the rope, on a snowy day, to cover up his affair
with Mrs. Peacock?). If a sentencing court . . . can compare each of those
‘implied . . . means of commission’ to the generic ACCA offense, ibid. (emphasis
deleted), then the categorical approach is at an end.” (last alteration in original)).
Thus, we must also analyze the constructive force means.

                                         -18-
constructive force, [i].e., threats or intimidation, is a crime involving the use of

‘force or violence.’” Id. at 913, 914. The dissent, in explaining its read of the

majority’s decision observed, “The majority opinion states that the terms ‘threats

or intimidation’ used in the robbery statute connotes force. I think not. The

effect of the majority opinion is to say that ‘threats or intimidation’ are an

unnecessary part of the term ‘by the use of force, threats or intimidation.’” Id. at

914 (Groves, J., dissenting). So Jenkins supports the proposition that there is a

common denominator between the alternative means of “force, threats, or

intimidation”—they all involve the use of “force or violence.”

      But at least two recent federal district court decisions have determined that

robbery by threats or intimidation in Colorado do not require the use or threatened

use of physical force. See United States v. Crump, No. 15-CR-123 (D. Colo. Dec.

2, 2015) (oral ruling); United States v. Estes, No. 05-CR-187 (D. Colo. Sept. 15,

2016). Particularly, the court in Estes noted Jenkins did not specify that the force

or violence must be in the form of personal harm. See Estes, slip op. at 7.

      For support, these courts looked to People v. Gallegos, which involved a

felon-in-possession case in which the underlying felony was attempted robbery by

threat. 563 P.2d 937, 938 (Colo. 1977). Gallegos had been convicted in 1973 for

“threat[ening] to blow up a Greeley business unless its owner paid him $100.” Id.

In his felon-in-possession case, Gallegos claimed that “robbery by threat to blow

up another’s property” was not a felony involving the use of “force or violence”

                                          -19-
as required by the felon-in-possession statute. Id. The lower court agreed. Id.

In reversing, the Colorado Supreme Court concluded “an attempted robbery by

threat is a felony involving the use of force under the statute.” Id. Construing

“force” as referenced in the felon-in-possession statute, the court cited a prior

decision involving forcible rape and reasoned that “‘by force’ . . . includ[es]

‘force or violence threatened as a result of noncompliance and for the purpose of

preventing resistance, or extorting consent.’” Id. at 939. To be sure, Gallegos

does not speak to the scope of the threats or intimidation means in Colorado’s

robbery statute. That Gallegos was convicted of robbery in 1973 for threats

against property adds nothing without knowing the circumstances of the

conviction.

      More on point, the Colorado Supreme Court has rejected the notion that

threats against property (i.e., by extortionist means) can support a robbery

conviction. The Colorado Supreme Court in People v. Moore held that

extortionist means do not equate to robbery but are more in line with the crime of

theft. 518 P.2d 944, 945 (Colo. 1974). There, the defendant telephoned the

manager of a store and told him there were bombs in the store and that he would

detonate them unless he was paid a sum of money. Id. Police arrested the

defendant when he went to collect the money and he was later convicted of

robbery. The supreme court reversed the defendant’s conviction, concluding “the

crime that the defendant committed was the crime of theft, and not robbery.” Id.

                                         -20-
Moore undermines the position that Colorado would prosecute threats against

property, or intimidation by means not implicating bodily harm, as robbery. 10



      10
          One might fault us for not looking to the common law to determine what
threats or intimidation suffices. For there are common law sources that indicate
threat to one’s reputation or property might equate to robbery at common law.
See 2 Edward Hyde East, A Treatise of the Pleas of the Crown 715–26 (London,
Butterworth 1803) (discussing Donolly case where defendant was prosecuted for
robbery by threatening he would take victim before magistrate and accuse him of
committing “unnatural crime”). But Professor LaFave provides a concise
explanation for why this is not persuasive.

             We have seen, in the discussion of robbery, that to obtain
             another’s property by means of a threat of immediate
             bodily harm to the victim (or to someone in his company)
             is robbery; and robbery is held to embrace also a threat to
             destroy the victim’s home or a threat to accuse him of
             sodomy. That was, however, as far as robbery by threats
             went—doubtless because the severe penalty for robbery,
             long a capital offense, restrained the courts from
             expanding robbery to include the acquisition of property
             by means of other effective threats—such as a threat to
             inflict future rather than immediate bodily harm, or to
             destroy the victim’s property other than his house, or to
             accuse him of some crime other than sodomy, or to expose
             his failings or secrets or otherwise to damage his good
             name or business reputation. To fill this vacuum
             practically all states have enacted statutes creating what
             is in effect a new crime—in some states called statutory
             extortion, in others blackmail . . . .

3 LaFave § 20.4 (emphasis added). And indeed Colorado has codified the crimes
of extortion, Colo. Rev. Stat. § 18-3-207 (2016), and theft by threat, § 18-4-
401(1); see also Schott v. People, 482 P.2d 101, 102 (Colo. 1971) (explaining
“when the legislature adopted the theft statute, including the theft by threat
section . . . it repealed by § 19 the blackmail statute, thus indicating an intent to
include within the theft statute those offenses by which money, goods, chattels or
other valuable things were extorted by means of threat” (citations omitted)).

                                         -21-
      In sum, whether by force, or by threats or intimidation, we conclude that

robbery in Colorado has as an element the use or threatened use of physical force

against another person. The Colorado Supreme Court has emphasized that

robbery requires a violent taking consistent with the common law, which

comports with the definition of physical force provided by the Supreme Court in

Johnson I. We therefore find it more theoretical than realistic that conduct (or

threatened conduct) not equating to physical force would be prosecuted as

robbery in Colorado. Thus, robbery in Colorado is a violent felony under the

ACCA’s elements clause in § 924(e)(2)(B)(i). 11




      11
         We note that our conclusion is consistent with an unpublished decision
from this court and an Eighth Circuit decision. See United States v. Forrest, 611
F.3d 908, 911 (8th Cir. 2010) (citing Borghesi and concluding defendant’s
Colorado robbery conviction “was a violent felony conviction under
§ 924(e)(2)(B)(i)”); United States v. Futrell, 83 F.3d 434, 1996 WL 200602, at *1
(10th Cir. 1996) (unpublished) (holding Colorado robbery statute “requires the
use of force, threat or intimidation, which all involve an element of violence”).
We agree with Harris, however, that these decisions are not binding on us here.

                                        -22-
                                III. Conclusion

      In the beginning, we stated the issue in this appeal questions what should

be the obvious. Although requiring more analysis than needed at first blush, we,

in the end, return to the obvious: Statutory robbery in Colorado is a violent

felony under the ACCA. We therefore AFFIRM. 12




      12
          With the issuance of this decision we DENY the parties’ joint motion for
expedited consideration. See Joint Motion for Expedited Consideration, United
States v. Harris, No. 16-1237 (10th Cir. Sept. 22, 2016).

                                       -23-
United States v. Harris, No. 16-1237

EBEL, J., concurring.


       “A person who knowingly takes anything of value from the person or presence of

another by use of force, threats, or intimidation commits robbery” under Colorado law.

Colo. Rev. Stat. § 18-4-301(1). The district court held that such an offense is

categorically a violent felony under the Armed Career Criminal Act (“ACCA”), 18

U.S.C. § 924(e)(2)(B), because it “has as an element the use, attempted use, or threatened

use of physical force against the person of another,” with force defined as “force capable

of causing physical pain or injury to another person,” Johnson v. United States, 559 U.S.

133, 140 (2010). On appeal, Defendant-Appellant Michael Harris argues that the force

Colorado requires to support a robbery conviction based on “use of force” is less than the

“force” the ACCA requires. Instead, according to Harris, Colorado law permits a robbery

conviction based on only de minimis force. I agree with the majority’s analysis rejecting

Harris’s argument. See Maj. Op. at 11-17. On that basis, I concur in denying Harris 28

U.S.C. § 2255 relief.

       The majority, however, goes on to address whether Colorado robbery committed

by means of threat or intimidation has as an element the use, attempted use, or threatened

use of physical force against another capable of causing physical pain or injury. But

Harris never makes any argument on appeal implicating either of those two means of

committing robbery in Colorado. The Government, in Harris, logically did not address

those other two means of committing robbery either. The majority’s discussion of those
“constructive force” means is, therefore, not as well-informed as it could be and, in any

event, amounts only to dicta, dicta with which I disagree.

       The majority concludes we have to address Colorado robbery by means of threat

or intimidation because, in determining whether a state conviction categorically qualifies

as a “violent felony” under the ACCA, we must focus on the least conduct criminalized

by the Colorado robbery statute. See Maj. Op. at 18 n.9 (citing Moncrieffe v. Holder,

133 S. Ct. 1678, 1684 (2013)). Even so, that does not justify ignoring time-honored

jurisprudence limiting our decisions to the issues raised by the parties.

       Here, we have no briefing or argument from the parties to frame the question of

whether Colorado robbery by means of threat or intimidation requires proof of the same

or greater force than the ACCA requires for a “violent felony.” Resolution of that issue

will affect countless defendants in the future. Moreover, as I have indicated in my

dissent in United States v. Crump, No. 15-1497, --- F. App’x--- (10th Cir. 2016), there

are arguments made in that case that persuade at least me that Colorado robbery

committed by means of threats or intimidation does not qualify categorically as a “violent

felony.” The majority’s opinion here does not address those specific arguments.

       The majority fears inconsistent rulings: If we hold Harris’s Colorado robbery

conviction to be categorically a “violent felony” without addressing robbery by threat or

intimidation, we might inconsistently later hold that Colorado robbery by threat or

intimidation does not qualify as a “violent felony.” But that possibility is easily solved

here by noting in the Harris opinion that Harris argued only that Colorado robbery

conviction based on “use of force” can be satisfied by less force than the ACCA requires

                                              2
for a “violent felony,” and we therefore leave for another day any consideration of

Colorado robberies committed by threat or intimidation.

       As it turns out, waiting for that other day is not a problem. Crump,which we also

decide today, squarely places before this panel the more inclusive question of whether a

Colorado robbery committed by force, threat, or intimidation necessarily has as an

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

which constitutes force capable of causing physical pain or injury. The parties in Crump

fully briefed and argued all the issues necessary for this court to decide that question in

that case. I would, therefore, address all three means of committing robbery in Colorado

in that case and, for the reasons stated in my dissent in Crump, I conclude there that a

Colorado robbery conviction is not categorically a “violent felony” under the ACCA.




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