FILED
United States Court of Appeals
Tenth Circuit
February 4, 2019
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-3137
(D.C. Nos. 5:16-CV-04093-SAC
CAREY LONNELL BRESHERS, JR., and 5:10-CR-40107-SAC-1)
(D. Kan.)
Defendant - Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before PHILLIPS, McKAY, and O’BRIEN, Circuit Judges.
Appellant Carey Breshers pled guilty to using, carrying, or brandishing a firearm
during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A). In
2016, Appellant moved to vacate his conviction under 28 U.S.C. § 2255, arguing that the
underlying crime on which his conviction was based—Hobbs Act robbery—can no
longer be considered a “crime of violence” in light of the Supreme Court’s decision in
Johnson v. United States, 135 S. Ct. 2551 (2015). The district court denied his motion on
the merits, holding that Hobbs Act robbery is categorically a crime of violence under a
*
This order is not binding precedent except under the doctrines of law of the case,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.
separate subsection of the statute that is not affected by the Court’s Johnson decision. See
§ 924(c)(3)(A). Appellant filed a motion for a certificate of appealability to appeal this
decision.
In his motion for a certificate of appealability, Appellant recognized that his crime-
of-violence argument appeared to be foreclosed by our decision in United States v.
Melgar-Cabrera, 892 F.3d 1053, 1064–65 (10th Cir. 2018), in which we held that Hobbs
Act robbery is categorically a crime of violence because it includes as an element the use
or threatened use of violent force. However, he argued that reasonable jurists might still
debate the merits of this issue based on the Supreme Court’s granting of certiorari in
another case involving a similar question. See United States v. Stokeling, 684 Fed. App’x
870 (11th Cir. 2017), cert. granted, 138 S. Ct. 1438 (2018).
The Supreme Court recently decided Stokeling, holding consistently with our
reasoning in Melgar-Cabrera that “the degree of force necessary to commit common-law
robbery” is sufficient to satisfy the categorical definition of crimes of violence. Stokeling
v. United States, 139 S. Ct. 544, 555 (2019); cf. Melgar-Cabrera, 892 F.3d at 1065
(“[T]he force element in common-law robbery statutes (e.g., the Hobbs Act) can only be
satisfied by violent force.”). In light of this decision, Appellant concedes that reasonable
jurists would no longer debate the merits of his claim.
Because Melgar-Cabrera and Stokeling conclusively preclude Appellant’s
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argument for relief, we DENY his request for a certificate of appealability and DISMISS
the appeal.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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