FILED
United States Court of Appeals
Tenth Circuit
August 9, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MANUEL DAMASO-MENDOZA,
a/k/a Manuel Mendoza-Damaso, a/k/a
Manuel D. Mendoza,
Petitioner,
v. No. 10-9579
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Submitted on the briefs *:
Christine M. Hernández and Arnulfo D. Hernández, of Hernández & Associates,
P.C., Denver, Colorado, for Petitioner.
Jennifer J. Keeney, Senior Litigation Counsel, Papu Sandhu, Senior Litigation
Counsel, and Ubaid Ul-Haq, Student Law Clerk, of Office of Immigration
Litigation, Civil Division, Justice Department, Washington, D.C., for Respondent.
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
*
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
ordered submitted without oral argument.
HARTZ, Circuit Judge.
Petitioner Manuel Damaso-Mendoza, a citizen of Mexico, seeks review of
the decision by the Board of Immigration Appeals (BIA) that he is removable
despite being a lawful permanent resident of the United States. The BIA
determined that Petitioner’s Colorado felony conviction for menacing, see Colo.
Rev. Stat. § 18-3-206 (2000), was a conviction of a crime of violence as defined
by 18 U.S.C. § 16, and therefore an aggravated felony, see 8 U.S.C.
§ 1101(a)(43)(F), making him removable under 8 U.S.C. § 1227(a)(2)(A)(iii). We
have jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.
I. BACKGROUND
On July 10, 2008, Petitioner pleaded guilty in Colorado to felony menacing
and misdemeanor assault. The state court imposed concurrent sentences of two
years’ imprisonment on the menacing conviction and 18 months’ imprisonment on
the assault conviction. The menacing statute provides:
(1) A person commits the crime of menacing if, by any threat or
physical action, he or she knowingly places or attempts to place
another person in fear of imminent serious bodily injury. Menacing
is a class 3 misdemeanor, but, it is a class 5 felony if committed:
(a) By the use of a deadly weapon or any article used or
fashioned in a manner to cause a person to reasonably believe
that the article is a deadly weapon; or
(b) By the person representing verbally or otherwise that he or
she is armed with a deadly weapon.
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Colo. Rev. Stat. § 18-3-206. Colorado law defines deadly weapon as “any of the
following which in the manner it is used or intended to be used is capable of
producing death or serious bodily injury: (I) A firearm, whether loaded or
unloaded; (II) A knife; (III) A bludgeon; or (IV) Any other weapon, device,
instrument, material, or substance, whether animate or inanimate.” Id.
§ 18-1-901(3)(e). Petitioner’s judgment of conviction states that he was
convicted of “C.R.S. # 18-3-206(1)(a)/(b).” R. at 101.
On February 22, 2010, the Department of Homeland Security issued
Petitioner a Notice to Appear charging that he had been convicted of an
aggravated felony and was therefore subject to removal. In a hearing before an
immigration judge (IJ), Petitioner argued that there was insufficient evidence to
find him removable because the state-court judgment did not specify whether he
had been convicted under § 18-3-206(1)(a) or under § 18-3-206(1)(b). The IJ
ruled that regardless of which subsection Petitioner was convicted under, his
conviction was for a crime of violence. Petitioner was ordered removed from the
United States.
Petitioner appealed to the BIA, repeating his arguments that the
government had not satisfied its burden to prove him removable and further
arguing that the IJ had erred in determining that violations of both subsections of
the Colorado statute were crimes of violence. The BIA rejected the arguments
and dismissed the appeal.
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II. DISCUSSION
“We review the BIA’s legal determinations de novo and its findings of fact
for substantial evidence.” Dallakoti v. Holder, 619 F.3d 1264, 1267 (10th Cir.
2010). Although we do not defer to the BIA’s interpretation of a state statute, we
defer to the BIA’s application of immigration law to Petitioner’s state conviction.
See Efagene v. Holder, 642 F.3d 918, 921 (10th Cir. 2011). The extent of our
deference depends on the nature of the BIA decision. See Carpio v. Holder, 592
F.3d 1091, 1097–98 (10th Cir. 2010). When, as here, the BIA’s decision was
rendered by a single member of the Board (and hence is not precedential, see
8 C.F.R. § 1003.1(g) (stating which BIA decisions are precedential)) and the
decision did not rely on a precedential BIA decision, we defer only insofar as “the
BIA’s decision has the power to persuade. We examine the thoroughness evident
in the BIA’s consideration, the validity of its reasoning, and its consistency with
earlier and later pronouncements.” Carpio, 592 F.3d at 1098 (brackets, citation,
and internal quotation marks omitted).
The definition of crime of violence in 18 U.S.C. § 16 is:
(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other offense that is a felony and that, by its nature, involves
a substantial risk that physical force against the person or property of
another may be used in the course of committing the offense.
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The BIA relied solely on § 16(a) in this case. To determine whether a statute
describes a crime of violence, we ordinarily look only to the elements of the state-
law offense. See Efagene, 642 F.3d at 921. When, however, the statute defining
an offense sets forth alternative means of committing the offense, it may be
necessary to determine which of those means was the basis for the conviction.
See id. at 926. That necessity arises when one or more alternative means have the
elements required for a crime of violence and one or more alternative means do
not. In that event the government must produce definitive documentation—such
as a charging document, a plea agreement, or a plea colloquy—to establish that
the offense of conviction had the elements needed for a crime of violence. See
Hamilton v. Holder, 584 F.3d 1284, 1287 n.4 (10th Cir. 2009).
Relying on this proposition of law, Petitioner argues that the government
failed to produce sufficient evidence that he had committed a crime of violence
because it did not show whether he was convicted of violating § 18-3-206(1)(a) or
of violating § 18-3-206(1)(b). This argument would be persuasive if, say, a
violation of § 206(1)(a) was a crime of violence but a violation of § 206(1)(b)
was not. The argument would fail, however, if violations of both § 206(1)(a) and
§ 206(1)(b) are crimes of violence. In that event, the government would establish
that Petitioner committed a crime of violence by showing that he must have
committed one or the other of the offenses, without any need to identify
specifically which one.
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The BIA adopted the view that the latter situation was the one presented
here. It observed that under either subsection of § 18-3-206 the defendant must
have “place[d] or attempt[ed] to place another person in fear of imminent serious
bodily injury,” Colo. Rev. Stat. § 18-3-206; and it then reasoned that placing
another person in such fear, whether the defendant uses a real or simulated deadly
weapon under § 206(1)(a) or represents that he has a deadly weapon under
§ 206(1)(b), “necessarily involves a threatened use of physical force.” R. at 5.
Because any crime that has the threatened use of physical force as an element is a
crime of violence, see 18 U.S.C. § 16(a), the BIA concluded that a conviction
under either subsection of the Colorado statute is a conviction of a crime of
violence.
We find this reasoning persuasive. Indeed, we have adopted essentially the
same view in interpreting language identical to 18 U.S.C. § 16(a) that appears in
another federal statute and in the United States Sentencing Guidelines. In United
States v. Herron, 432 F.3d 1127, 1137–38 (10th Cir. 2005), the issue was whether
an older version of Colo. Rev. Stat. § 18-3-206 was a violent felony within the
meaning of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). We
considered the provision in the ACCA that defines violent felony to include “any
crime punishable by imprisonment for a term exceeding one year . . . , that . . .
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). This language is the
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same as that in 18 U.S.C. §16(a) except that § 16(a) refers to physical force
against “property” as well as “against the person of another.” Thus, in all
respects relevant to this appeal, the language of the two federal statutes is
identical. See United States v. Ramon Silva, 608 F.3d 663, 672 (10th Cir. 2010)
(“18 U.S.C. § 16(a) . . . is in all relevant aspects identical to [18 U.S.C.]
§ 924(e)(2)(B)(i).”).
We held that the menacing offense codified in the older version of
§ 18-3-206 was a violent felony under the ACCA. See Herron, 432 F.3d at 1138.
The language of that older version is:
A person commits the crime of menacing if, by any threat or physical
action, he knowingly places or attempts to place another person in
fear of imminent serious bodily injury. Menacing is a class 3
misdemeanor, but, if committed by the use of a deadly weapon, it is a
class 5 felony.
Colo. Rev. Stat. § 18-3-206 (1999); see Herron, 432 F.3d at 1137. We said,
“Knowingly placing someone in fear by the use of a deadly weapon certainly
constitutes threatening someone.” Herron, 432 F.3d at 1138 (ellipsis and internal
quotation marks omitted). And we noted that “[t]he key phrase [in the definition
of violent felony] is threatened use of physical force. The actual use of force is
not necessary to make a crime a violent felony; all that is required is the threat of
such force against another’s person.” Id. at 1137 (internal quotation marks
omitted).
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Herron was followed in United States v. Armijo, No. 09-1533, 2011
WL 2687274 (10th Cir. July 12, 2011), which held that the same older version of
the menacing offense was a “crime of violence” within the meaning of USSG
§ 4B1.2(a). An offense is a crime of violence under § 4B1.2(a)(1) if it “has as an
element the use, attempted use, or threatened use of physical force against the
person of another,” the same language as the provision of 18 U.S.C.
§ 924(e)(2)(B)(i) construed in Herron. Armijo rejected the argument (not raised
or considered in Herron) that the Colorado menacing offense could not be a crime
of violence because the Colorado definition of deadly weapon includes “materials
or substances,” which would encompass poisons and pathogens. See 2011 WL
2687274, at *3–*5. 1
1
We note that the Colorado statute encompasses “knowingly plac[ing] or
attempt[ing] to place another person in fear of imminent serious bodily injury”
“by any threat or physical action.” Colo. Rev. Stat. § 18-3-206 (emphasis
added). Neither Herron nor Armijo addressed (nor has Petitioner raised) the
question whether placing or attempting to place one in fear by “physical action” is
not a threat within the meaning of 18 U.S.C. § 16, 18 U.S.C. § 924(e)(2)(B)(i), or
USSG § 4B1.2(a). The question arises because (1) the menacing statute appears
to distinguish between a “threat” and “physical action” by mentioning them
separately, and (2) the three federal provisions refer only to “threats.”
Nevertheless, we believe that if a person “by . . . physical action . . . places or
attempts to place another person in fear of imminent serious bodily injury,” Colo.
Rev. Stat. § 18-3-206(1), that person has threatened serious bodily injury. A
threat is “[a] communicated intent to inflict harm or loss on another or on
another’s property.” Black’s Law Dictionary 1618 (9th ed. 2009) (emphasis
added). Communication can certainly take place without words, such as by
brandishing a weapon. See, e.g., Ramon Silva, 608 F.3d at 670 (concluding under
the ACCA that “[t]hreatening or engaging in menacing conduct toward a victim,
with a weapon capable of producing death or great bodily harm, threatens the use
(continued...)
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The reasoning of Herron and Armijo applies equally to the present
Colorado statute, which, we repeat, states:
(1) A person commits the crime of menacing if, by any threat or
physical action, he or she knowingly places or attempts to place
another person in fear of imminent serious bodily injury. Menacing
is a class 3 misdemeanor, but, it is a class 5 felony if committed:
(a) By the use of a deadly weapon or any article used or
fashioned in a manner to cause a person to reasonably believe
that the article is a deadly weapon; or
(b) By the person representing verbally or otherwise that he or
she is armed with a deadly weapon.
Colo. Rev. Stat. § 18-3-206. We see no material differences in the elements of
the felony set forth in the former § 18-3-206 (“knowingly plac[ing] or
attempt[ing] to place another person in fear of imminent serious bodily injury . . .
[b]y the use of a deadly weapon”) and the elements of the first subsection of the
present statute—§ 18-3-206(1)(a). The sole difference in the elements is that the
present § 206(1)(a) can be violated if the defendant uses a simulated deadly
weapon. But using a fake weapon still places the victim in fear of injury from a
real weapon. There is a “threatened use of physical force against the person or
1
(...continued)
of ‘violent force’ because by committing such an act, the aggressor communicates
to his victim that he will potentially use ‘violent force’ against the victim in the
near-future.”); United States v. Hernandez, 568 F.3d 827, 830 (10th Cir. 2009)
(“We . . . have no trouble in concluding that knowingly discharging a firearm at
or in the direction of an individual constitutes a real threat of the use of physical
force against that individual and satisfies [the ACCA].”). It is unclear why the
Colorado legislature included the words “or physical action” in the menacing
statute. Perhaps it took a narrow view that a “threat” must be in words; or
perhaps it merely intended to emphasize that the statute could be violated without
any words being uttered.
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property of another,” 18 U.S.C. § 16(a) (emphasis added), whether the object used
by the perpetrator is a true deadly weapon or just looks like one. Petitioner’s
brief in this court appears to concede that if we follow Herron, then
§ 18-3-206(1)(a) is a crime of violence under 18 U.S.C. § 16(a).
In our view, the same analysis fully applies to the second subsection of the
present statute—§ 18-3-206(1)(b). Subsection 206(1)(b) still requires the
defendant to issue a threat that places or attempts to place another in fear of
bodily injury from a deadly weapon. Although a defendant convicted under
§ 206(1)(b) need only represent to the victim that he possesses a deadly weapon,
the threat is the same as if the defendant had an actual or simulated deadly
weapon, as required by § 206(a)(1). See United States v. Melchor-Meceno, 620
F.3d 1180, 1185 (9th Cir. 2010) (Present Colorado menacing statute is
categorically a crime of violence under USSG § 2L1.2; “it is impossible to
conceive of a situation involving fear of imminent serious bodily injury without a
threat of force.”); United States v. Forrest, 611 F.3d 908, 911 (8th Cir. 2010)
(1995 Colorado conviction for felony menacing was violent felony under ACCA;
“[a] threat that creates a fear ‘of imminent serious bodily injury’ is a threat of
physical force.”).
Petitioner cites United States v. Salinas-Armendariz, 492 F. Supp. 2d 682,
684–85 (W.D. Tex. 2007), which held that a violation of the older version of
Colo. Rev. Stat. § 18-3-206 was not a crime of violence under 18 U.S.C. § 16.
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But we are not persuaded. In that case the government had conceded that the
Colorado conviction was not a crime of violence under 18 U.S.C. § 16(a), so the
court focused on whether the offense was a crime of violence under § 16(b). See
Salinas-Armendariz, 492 F. Supp. 2d 684–85. Here, the issue is whether
Petitioner’s conviction was a crime of violence under § 16(a). 2
We are persuaded by the BIA’s reasoning that a conviction for violation of
Colorado’s menacing statute is a conviction of a crime of violence. Petitioner
therefore committed an aggravated felony and is removable.
III. CONCLUSION
We DENY the petition for review but GRANT Petitioner’s motion to
proceed in forma pauperis.
2
Petitioner also argues that Colo. Rev. Stat. § 18-3-206 is not a crime of
violence under 18 U.S.C. § 16(b). But we need not address this argument because
the BIA decided only that his conviction was a crime of violence under 18 U.S.C.
§ 16(a).
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