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

                             FOR THE TENTH CIRCUIT                           September 5, 2018
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                             No. 17-2200
                                                 (D.C. Nos. 1:16-CV-00659-JAP-GBW &
ARTHUR SANCHEZ,                                          1:13-CR-00961-JAP-1)
                                                                (D. N.M.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, EID, and CARSON, Circuit Judges.
                  _________________________________

       Arthur Sanchez seeks a certificate of appealability (COA) to challenge the denial

of his 28 U.S.C. § 2255 motion. See id. § 2253(c)(1)(B) (providing that no appeal may

be taken from a final order denying relief under § 2255 unless the movant obtains a

COA). We deny a COA and dismiss this matter.

                                             I

       Mr. Sanchez pleaded guilty to possessing heroin with intent to distribute,

21 U.S.C. § 841(a)(1), and possessing a firearm and ammunition after a prior felony

conviction, 18 U.S.C. § 922(g)(1). His presentence investigation report determined he


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
was subject to the enhanced penalty provisions of the Armed Career Criminal Act of

1984 (ACCA), which imposes a mandatory minimum sentence of 15 years in prison for

violations of § 922(g) when the defendant has “three previous convictions . . . for a

violent felony.” 18 U.S.C. § 924(e)(1). The ACCA defines a “violent felony” as “any

crime punishable by imprisonment for a term exceeding one year” that (1) “has as an

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

another” (the “elements clause”); (2) “ is burglary, arson, . . . extortion, [or] involves use

of explosives (the “enumerated offenses clause”); or (3) “otherwise involves conduct that

presents a serious potential risk of physical injury to another” (the “residual clause”). Id.

§ 924(e)(2)(B). Mr. Sanchez had been convicted in New Mexico of robbery, aggravated

assault with a deadly weapon, and aggravated battery with a deadly weapon. Thus, he

agreed to a 15-year sentence under the ACCA and did not appeal.

       Following the Supreme Court’s decision in Johnson v. United States, 135 S. Ct.

2551 (2015) (“Johnson II”), which invalidated the ACCA’s residual clause, Mr. Sanchez

moved to correct his sentence pursuant to 28 U.S.C. § 2255. He argued that his three

prior convictions no longer qualified as violent felonies under the ACCA because the

residual clause was unconstitutional, the enumerated offenses clause was inapplicable,

and the elements clause was not satisfied. A magistrate judge agreed with the first two

points but not the last, concluding that Mr. Sanchez’s prior convictions qualified as

violent felonies under the elements clause. The magistrate judge therefore recommended

that the § 2255 motion be denied. Over Mr. Sanchez’s objections, the district court



                                               2
adopted the recommendation, denied the § 2255 motion, and declined to issue a COA.

Mr. Sanchez now seeks a COA from this court.

                                             II

       A COA is a jurisdictional prerequisite to our review. Miller-El v. Cockrell,

537 U.S. 322, 335-36 (2003). To obtain a COA, a prisoner must make “a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We engage in

“an overview of the claims in the [§ 2255 motion] and a general assessment of their

merits.” Miller-El, 537 U.S. at 336. “At the COA stage, the only question is whether the

applicant has shown that ‘jurists of reason could disagree with the district court’s

resolution of his constitutional claims or that jurists could conclude the issues presented

are adequate to deserve encouragement to proceed further.’” Buck v. Davis, 137 S. Ct.

759, 773 (2017) (quoting Miller-El, 537 U.S. at 327).

       To qualify as a violent felony under the elements clause, a prior conviction must

have “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). “In this context, ‘physical force’ means

‘violent force—that is, force capable of causing physical pain or injury to another

person.’” United States v. Maldonado-Palma, 839 F.3d 1244, 1248 (10th Cir. 2016)

(quoting Johnson v. United States, 559 U.S. 133, 140 (2010) (“Johnson I”)), cert. denied,

137 S. Ct. 1214 (2017).

       1. Aggravated Assault with a Deadly Weapon, N.M. Stat. Ann. § 30-3-2(A)

       We have consistently held that New Mexico’s crime of aggravated assault with a

deadly weapon satisfies Johnson I’s standard of violent force. See Maldonado-Palma,

                                              3
839 F.3d at 1250 (holding that N.M. Stat. Ann. § 30-3-2(A) is categorically a crime of

violence under the elements clause of U.S.S.G. § 2L1.2); United States v. Ramon Silva,

608 F.3d 663, 670-71 (10th Cir. 2010) (holding that New Mexico aggravated assault with

a deadly weapon is categorically a violent felony under the ACCA elements clause);

United States v. Pacheco, 2018 WL 1673153, at *2 (10th Cir. 2018) (unpublished)

(same).1 As we explained in Maldonado-Palma, aggravated assault with a deadly

weapon requires the “actual use[]” of a deadly weapon “capable of producing death or

great bodily harm or inflicting dangerous wounds in an assault.” 839 F.3d at 1250

(internal quotation marks omitted). The use of such a weapon in an assault, we reasoned,

“necessarily threatens the use of physical force, i.e., ‘force capable of causing physical

pain or injury to another person.’” Id. (quoting Johnson I, 559 U.S. at 140). Although

Maldonado-Palma analyzed a provision of the sentencing guidelines, its analysis is

instructive, “[g]iven the similarity in language between the ACCA and [the sentencing

guidelines].” Ramon Silva, 608 F.3d at 671 (internal quotation marks omitted).

       Mr. Sanchez acknowledges these authorities but asserts our cases were wrongly

decided. He contends that State v. Branch, 417 P.3d 1141, 1148 (N.M. Ct. App. 2018),

       1
           N.M. Stat. Ann. § 30-3-2 provides:

       Aggravated assault consists of either:
       A. unlawfully assaulting or striking at another with a deadly weapon;
       B. committing assault by threatening or menacing another while wearing a
       mask, hood, robe or other covering upon the face, head or body, or while
       disguised in any manner, so as to conceal identity; or
       C. willfully and intentionally assaulting another with intent to commit any
       felony.
       Whoever commits aggravated assault is guilty of a fourth degree felony.

                                                4
undermined our cases because it held that aggravated assault with a deadly weapon is a

general intent crime that does not require a specific intent to use a deadly weapon

“against the person of another.” COA App. at 13 (internal quotation marks omitted). But

Branch did not alter the state of the law. As Ramon Silva recognized, “[t]hat 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, only confirms that aggravated assault is not a

specific intent crime, but rather is a general intent crime.” 608 F.3d at 673 (brackets,

citation, and internal quotation marks omitted). The offense is a violent felony because it

requires “unlawfully assaulting or striking at another,” N.M. Stat. Ann. § 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 threatens the

use of physical force against the person of another. The denial of relief was not

debatable.

       2. Robbery, N.M. Stat. Ann. § 30-16-2

       Mr. Sanchez also contends his robbery conviction does not satisfy the elements

clause because the amount of force used to overcome a victim’s resistance is immaterial.2


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

       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.

                                               5
He says robbery can be committed using only slight force, which is insufficient to satisfy

the physical force requirement of Johnson I. As Mr. Sanchez acknowledges, however,

this argument is foreclosed by United States v. Garcia, 877 F.3d 944, 956 (10th Cir.

2017), petition for cert. filed (U.S. June 18, 2018) (No. 17-9469). In Garcia, we held that

robbery in New Mexico is a violent felony under the ACCA’s elements clause. Id. We

analyzed the relevant case law and acknowledged that some New Mexico cases suggested

that “any quantum of force which overcomes resistance would be sufficient to support a

robbery conviction.” Id. But focusing on “realistic probabilities, not theoretical

possibilities,” we observed that “cases affirming convictions which clearly discuss the

quantum of force describe force sufficient to satisfy the Johnson I definition.” Id.

Hence, we concluded that the New Mexico crime of robbery “categorically matches the

definition of ‘physical force’ the Supreme Court assigned in Johnson I” and “has as an

element the use or threatened use of physical force against another person.” Id. In light

of Garcia, reasonable jurists would not debate the district court’s decision. Mr. Sanchez

offers various arguments as to why Garcia was wrongly decided, but he recognizes that

we are bound by our precedent absent en banc reconsideration or a contrary Supreme

Court decision. See United States v. Springer, 875 F.3d 968, 974-75 (10th Cir. 2017),

cert. denied, 138 S. Ct. 2002 (2018). 3



       3
        As Mr. Sanchez indicates in his letter filed under Fed. R. App. P. 28(j), the
Supreme Court has granted certiorari in Stokeling v. United States, 138 S. Ct. 1438
(2018) (Mem.), to consider the following question:

                                                                                (continued)
                                             6
       3. Aggravated Battery with a Deadly Weapon, N.M. Stat. Ann. § 30-3-5(C)

       Finally, Mr. Sanchez contends that his conviction for aggravated battery with a

deadly weapon does not satisfy the elements clause because the crime can be committed

without using violent force as required by Johnson I; he says it can be committed with

only an unlawful touching.4 Mr. Sanchez fails to explain, however, how an unlawful

touching with the use of a deadly weapon can be committed without the threatened use of

physical, violent force.

       We have held “that physical force is involved when a person intentionally causes

physical contact with another person with a deadly weapon.” United States v.

Treto-Martinez, 421 F.3d 1156, 1159 (10th Cir. 2005) (holding that a Kansas conviction


       Is a state robbery offense that includes “as an element” the common law
       requirement of overcoming “victim resistance” categorically a “violent
       felony” under the [ACCA’s elements clause] if the offense has been
       specifically interpreted by state appellate courts to require only slight force
       to overcome resistance?

Notwithstanding the grant of certiorari in Stokeling, Garcia definitively answered the
question presently before us, and we are bound by that decision unless and until it is
overruled by an en banc panel of this court or a contrary decision of the Supreme Court.
       4
           N.M. Stat. Ann. § 30-3-5 provides:

       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 a manner whereby great bodily
       harm or death can be inflicted is guilty of a third degree felony.

                                                7
for aggravated battery against a law enforcement officer qualified as a “crime of

violence” under U.S.S.G § 2L1.2(b)(1)(A)). Although Treto-Martinez pre-dated Johnson

I, we applied Treto-Martinez in Ramon Silva and held that “apprehension-causing

aggravated assault under N.M. Stat. Ann. § 30-3-2(A) creates a commensurate threat of

physical force such that the crime qualifies as a violent felony under the ACCA,”

608 F.3d at 672 (internal quotation marks omitted). We reasoned that “[t]he conduct

could always lead to substantial and violent contact, and thus it would always include as

an element the threatened use of violent force.” Id. (ellipsis and internal quotation marks

omitted). It follows that if “[e]mploying a weapon that is capable of producing death or

great bodily harm or inflicting dangerous wounds in an assault necessarily threatens the

use of physical force, i.e., force capable of causing physical pain or injury to another

person,” Maldonado-Palma, 839 F.3d at 1250 (internal quotation marks omitted), so too

must employing such a weapon when committing an actual battery, see, e.g., United

States v. McMahan, 732 F. App’x 665, 669 (10th Cir. 2018) (unpublished) (adhering to

Treto-Martinez and holding that aggravated battery in Kansas is a violent felony under

the ACCA’s elements clause), petition for cert. filed, (U.S. July 23, 2018)

(No. 18-5393).5

       Mr. Sanchez posits that an aggravated battery might be committed with a deadly

weapon in a way that does not involve direct physical force, such as poisoning the victim.

But once again, he recognizes that this argument is foreclosed by our precedent: “‘Use of

       5
        We may consider non-precedential, unpublished decisions for their persuasive
value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1(A).

                                              8
force is not the act of sprinkling the poison; it is the act of employing poison knowingly

as a device to cause physical harm. That the harm occurs indirectly, rather than directly

(as with a kick or punch), does not matter.’” United States v. Ontiveros, 875 F.3d 533,

537 (10th Cir. 2017) (brackets and ellipsis omitted) (quoting United States v. Castleman,

134 S. Ct. 1405, 1415 (2014), cert. denied, 138 S. Ct. 2005 (2018)). Given this authority,

no reasonable jurist would debate the district court’s decision.

                                             III

       Accordingly, we deny a COA and dismiss this matter.

                                                   Entered for the Court

                                                   Allison H. Eid
                                                   Circuit Judge




                                             9
