FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 6, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2174
(D.C. Nos. 1:16-CV-00715-PJK-GBW &
VERNON LEE BAKER, 1:08-CR-01680-PJK-1)
(D. N.M.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, EID, and CARSON, Circuit Judges.
_________________________________
Vernon Lee Baker seeks to appeal the district court’s denial of his 28 U.S.C.
§ 2255 motion to vacate, set aside or correct his sentence. In his motion, Baker claims
his sentence, imposed under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), is unconstitutional as a result of the Supreme Court’s invalidation of ACCA’s
residual clause in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). In order to
appeal the district court’s decision, Baker must first obtain a certificate of appealability
(“COA”). 28 U.S.C. § 2253(c)(1)(B). For the reasons set forth below, we deny a COA
and dismiss this matter.
*
This order is not binding precedent except under the doctrines of law of the case,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.
BACKGROUND
Baker was convicted in 2011 by a federal jury of being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). This crime ordinarily
carries a prison term of up to 10 years, id. § 924(a)(2), but Baker was sentenced to nearly
20 years of imprisonment under ACCA § 924(e), which applies when a defendant who
violates § 922(g) “has three previous convictions . . . for a violent felony or a serious drug
offense, or both.” Id. § 924(e)(1).1
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” (elements clause); (2) “is
burglary, arson, or extortion, [or] involves use of explosives” (enumerated clause); or
(3) “otherwise involves conduct that presents a serious potential risk of physical injury to
another” (residual clause). Id. § 924(e)(2)(B). The sentencing court concluded Baker
had at least three prior convictions for a “violent felony” under this definition, based on
his two convictions for armed robbery and a conviction for aggravated battery with a
deadly weapon under New Mexico law.
In 2015, in Johnson, the Supreme Court invalidated ACCA’s residual clause as
unconstitutionally vague, but left the elements and enumerated clauses untouched.
See 135 S. Ct. at 2563. The Supreme Court subsequently made Johnson retroactive to
cases on collateral review. See Welch v. United States, 136 S. Ct. 1257, 1265 (2016).
1
Baker unsuccessfully appealed his conviction but did not challenge his ACCA
sentencing enhancement. See United States v. Baker, 485 F. App’x 964 (10th Cir. 2012).
2
Baker timely filed a § 2255 motion to vacate his sentence under Johnson, arguing
that he should be resentenced without the ACCA enhancement because both armed
robbery and aggravated battery with a deadly weapon as defined by New Mexico law
qualify as a “violent felony” only under ACCA’s now-unconstitutional residual clause.
The magistrate judge recommended the district court deny Baker’s motion based on his
determination that both of Baker’s crimes qualify as violent felonies under ACCA’s
elements clause.2
After considering Baker’s objections, the district court adopted the magistrate
judge’s recommendation and denied a COA. Baker now seeks to appeal the district
court’s decision. We construe Baker’s notice of appeal as a request to this court for the
required COA and look to the issues raised in his opening brief in deciding whether to
grant this request. See Fed. R. App. P. 22(b)(2); 10th Cir. R. 22.1(A).
STANDARD FOR OBTAINING A COA
To obtain a COA from this court, Baker must make “a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), by demonstrating 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) (internal quotation marks
omitted). In other words, the applicant must show that the district court’s resolution was
2
The magistrate judge also agreed with the government that another of Baker’s
previous convictions, for aggravated assault against a household member using a deadly
weapon, qualifies as a “violent felony” under the elements clause and could serve as a
predicate offense for applying ACCA if needed. Baker did not object to this proposed
finding and does not challenge the district court’s adoption of it on appeal.
3
either “debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). We decide
whether Baker has made this showing by “a preliminary, though not definitive,
consideration” of the merits of the issues on which he seeks a COA. Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003).
STANDARDS OF REVIEW
We recently clarified that § 2255 motions seeking relief under Johnson are to be
analyzed under a two-step, harmless-error framework. See United States v. Driscoll,
892 F.3d 1127, 1132 (10th Cir. 2018). At step one, the court determines error, that is
“whether the sentencing court erred by relying on the residual clause to enhance [the
defendant’s] sentence.” Id. This is a matter of historical fact to be determined based on
the sentencing record or, if the record is unclear, the controlling law at the time of
sentencing. See id.; United States v. Snyder, 871 F.3d 1122, 1128-29 (10th Cir. 2017),
cert. denied, 138 S. Ct. 1696 (2018). The defendant bears the burden of proof at this
step, and “must prove that the sentencing court, more likely than not, relied on the
residual clause to enhance his sentence under the ACCA.” Driscoll, 892 F.3d at 1135. If
the defendant carries this burden, then at step two the court considers whether the
sentencing court’s error is harmless. Id. at 1132. The government bears the burden of
proof on this question, see United States v. Garcia, 877 F.3d 944, 948 (10th Cir. 2017),
petition for cert. filed (U.S. June 18, 2018) (No. 17-9469), which it can satisfy by
showing that “even with the Johnson error, [the defendant] has three predicate
convictions to support his enhanced sentence as an armed career criminal,” Driscoll,
892 F.3d at 1135-36. The harmlessness determination is made under current law because
4
it considers whether the current classification of the defendant as a career criminal is
correct notwithstanding any Johnson error at the time of sentencing. See Garcia,
877 F.3d at 948-56 (applying current law in determining that Johnson error was
harmless).
The district court did not have the benefit of Driscoll when it denied Baker’s
motion for relief under Johnson and hence it did not follow this framework. In particular,
neither the district court nor the parties addressed the initial question of whether it is
more likely than not that the sentencing court relied on the residual clause in sentencing
Baker in 2011.3
The district court’s denial of relief nonetheless fits neatly into the Driscoll
framework because it rests on the court’s determination that Baker has three predicate
convictions for violent felonies under ACCA’s elements clause. In other words, using
Driscoll’s terminology, the district court held that any reliance by the sentencing court on
the residual clause was harmless because Baker has at least three predicate offenses under
ACCA and thus is properly serving an enhanced sentence as a career criminal. A court
need not decide whether there was in fact error at the time of sentencing if it can
determine the potential error was harmless. See Davis v. Ayala, 135 S. Ct. 2187, 2193
3
The government belatedly touched on this issue in its response to Baker’s
objections to the magistrate judge’s recommendation, arguing for the first time that
Baker’s § 2255 motion was not timely because he had not shown that the sentencing
court relied on the residual clause in enhancing Baker’s sentence. The district court
declined to resolve this argument, stating that doing so would at minimum require that
Baker be given an opportunity to respond and that in any event it was unnecessary in
light of its determination that Baker’s prior offenses qualified as violent felonies under
ACCA.
5
(2015) (reversing grant of habeas corpus relief because “[a]ssuming without deciding that
a federal constitutional error occurred, the error was harmless”). Accordingly, our task in
considering whether to grant a COA here is to determine whether reasonable jurists could
debate the district court’s conclusion that Baker has at least three predicate convictions
for violent felonies under ACCA’s elements clause.
Our standards for addressing this question are well-established. “Whether a prior
conviction satisfies . . . ACCA’s violent felony definition is a legal question we review de
novo.” United States v. Titties, 852 F.3d 1257, 1263 (10th Cir. 2017). We determine
whether a state conviction “has as an element the use, attempted use, or threatened use of
physical force against the person of another” by looking to federal law to define this
phrase and to state law to define the substantive elements of the offense. United States v.
Harris, 844 F.3d 1260, 1263-64 (10th Cir. 2017) (internal quotation marks omitted), cert.
denied, 138 S. Ct. 1438 (2018). In conducting our review of the relevant state law, “we
apply the categorical approach, focusing on the elements of the crime of conviction, not
the underlying facts.” Id. at 1263. But if a state statute is divisible, such that it “sets out
one or more elements of the offense in the alternative,” then the modified categorical
approach applies. Descamps v. United States, 570 U.S. 254, 257 (2013). Under this
approach, we may “look[ ] to a limited class of documents (for example, the indictment,
jury instructions, or plea agreement and colloquy) to determine what crime, with what
elements, a defendant was convicted of.” Mathis v. United States, 136 S. Ct. 2243, 2249
(2016).
6
Once the crime of conviction is determined, we “focus on the least of the acts
criminalized” under the relevant state statute, Garcia, 877 F.3d at 949 (internal quotation
marks and emphasis omitted), to determine, in the case of ACCA’s elements clause,
whether the crime has as an element the use, attempted use or threatened use of physical
force against another. “Physical force” in this context 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).
ANALYSIS
In his opening brief, Baker renews his argument that armed robbery and
aggravated assault with a deadly weapon, as defined by New Mexico law, do not qualify
as violent felonies under ACCA’s elements clause. The district court rejected these
arguments and denied Baker’s motion based our precedent and New Mexico law.
Reasonable jurists would not debate the district court’s decision.
A. Armed robbery convictions
Baker was convicted of armed robbery under N.M. Stat. Ann. § 30-16-2. It
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.
N.M. Stat. Ann. § 30-16-2 (emphasis added).
7
In United States v. Garcia, issued after the district court ruled but before Baker
filed his brief in this court, we considered whether a conviction under N.M. Stat. Ann.
§ 30-16-2 qualifies as a violent felony under ACCA’s elements clause. The robbery
conviction in that case was for third degree robbery—that is, robbery without being
armed with a deadly weapon. 877 F.3d at 949 n.2. Applying the categorical approach,
we reviewed how New Mexico courts have discussed and applied the statutory “force or
violence” element of this offense. Id. at 950-56. Based on this review and the Supreme
Court’s definition of “physical force” as used in ACCA, we concluded—like the district
court in this case—that third-degree or “simple” robbery under N.M. Stat. Ann. § 30-16-2
categorically has as an element the use or threatened use of physical force against another
person and thus is a violent felony under ACCA’s elements clause. Id. at 956.
If simple robbery under N.M. Stat. Ann. § 30-16-2 qualifies as a violent felony
under the elements clause, then Baker’s conviction under the same statute for robbery
“while armed with a deadly weapon” does as well. Accordingly, reasonable jurists could
not debate that Baker’s New Mexico armed robbery convictions were convictions for
violent felonies under ACCA.4
4
Baker acknowledged in his brief that Garcia forecloses this court from holding
that New Mexico armed robbery does not satisfy ACCA’s elements clause. See Tootle v.
USDB Commandant, 390 F.3d 1280, 1283 (10th Cir. 2004) (“We are bound by the
precedent of prior panels absent en banc reconsideration or a superseding contrary
decision by the Supreme Court.” (internal quotation marks omitted)). He reports that he
nonetheless raised and argued this issue in order to preserve it in case Garcia is
overturned.
8
B. Conviction for aggravated battery with a deadly weapon
The parties agree Baker was convicted of felony aggravated battery with a deadly
weapon under N.M. Stat. Ann. § 30-3-5. It provides as relevant here: “Aggravated
battery consists of the unlawful touching or application of force to the person of another
with intent to injure that person or another. . . . Whoever commits aggravated
battery . . . with a deadly weapon . . . is guilty of a third degree felony.” Id. § 30-3-5(A),
(C). New Mexico defines a deadly weapon as “any firearm, whether loaded or unloaded;
or any weapon which is capable of producing death or great bodily harm.” Id. § 30-1-12.
Baker argues aggravated battery with a deadly weapon under this authority does
not require proof of “violent force” against the person of another because it may be
committed by unlawfully touching the person of another with a deadly weapon, such as
the butt of a pistol, with the intent to injure a third person rather than the person being
touched. In other words, Baker argues that without the unlawful touching with a deadly
weapon and the intent to injure being directed at the same person, this offense does not
require proof of “the use, attempted use, or threatened use of physical force against the
person of another” as necessary to satisfy ACCA’s element clause.
Baker cites no authority in support of this contention. And even assuming his
hypothetical presents a realistic probability of conduct that would violate the New
Mexico statute, see Garcia, 877 F.3d at 956 (“We are concerned with realistic
probabilities, not theoretical possibilities, of conviction under the statute”), his conclusion
that this scenario does not at least threaten the use of physical force against another is
contrary to our precedent.
9
In United States v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016),
cert. denied, 137 S. Ct. 1214 (2017), for example, we held that under New Mexico law
“[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.’”5 Id. at 1250
(quoting Curtis Johnson, 559 U.S. at 140). Similarly, we held in United States v. Taylor,
843 F.3d 1215 (10th Cir. 2016), cert. denied, 137 S. Ct. 1608 (2017), that “the use of a
dangerous weapon during an assault or battery always constitutes a sufficient threat of
force to satisfy the elements clause.”6 Id. at 1224 (internal quotation marks omitted).
This is so, among other things, because intentionally touching another with a deadly
weapon “could at least put the victim on notice of the possibility that the weapon will be
used more harshly in the future, thereby constituting a threatened use of force.” United
States v. Ramon Silva, 608 F.3d 663, 672 (10th Cir. 2010) (internal quotation marks
omitted).
It is not debatable under this precedent that touching a person with a deadly
weapon, even while intending to injure a third person, necessarily threatens the use of
5
Baker argues Maldonado-Palma is distinguishable because it was analyzing
whether a conviction for aggravated assault qualified as a crime of violence under the
enumerated clause of U.S. Sentencing Guidelines § 2L1.2. In fact, the language quoted
above was part of the court’s analysis of whether aggravated assault with a deadly
weapon satisfies § 2L1.2’s elements clause, which employs similar language as ACCA’s
elements clause. 839 F.3d at 1248-1250. We also have approved the use of precedents
under each of these clauses as guidance in interpreting the other. See id. at 1248.
6
We also noted in Taylor that the definition of “dangerous weapon” at issue there
is “very similar” to the definition of “deadly weapon” under New Mexico law.
See 843 F.3d at 1223.
10
physical force against one or both of these persons. Thus, we conclude that reasonable
jurists could not debate that aggravated battery with a deadly weapon under N.M. Stat.
Ann. § 30-3-5(A), (C) “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), and thus serves
as a third prior violent felony conviction for sentencing enhancement under ACCA.
CONCLUSION
For the foregoing reasons, reasonable jurists could not debate that Baker had at
least three predicate convictions for sentencing enhancement under ACCA and that the
district court therefore properly denied his motion for relief under § 2255. Accordingly,
we deny a COA and dismiss this matter.
Entered for the Court
Joel M. Carson
Circuit Judge
11