FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 19, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-2115
(D.C. Nos. 1:16-CV-00697-JCH-LF &
JOHN ANZURES, 1:10-CR-03461-JCH-1)
(D. N.M.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY
_________________________________
Before BRISCOE, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
John Anzures seeks a certificate of appealability (COA) to challenge the
district court’s denial of his motion to vacate, set aside, or correct his sentence under
28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA to appeal denial of
relief under § 2255). Because Anzures has failed to satisfy the standard for issuance
of a COA, we deny his request and dismiss this matter.
To obtain a COA, Anzures must make “a substantial showing of the denial of a
constitutional right.” Id. § 2253(c)(2). A substantial showing means that “reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have
This order is not binding precedent except under the doctrines of law of the case,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.
been resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quotation marks omitted).
I. BACKGROUND
In 2012, Anzures entered a guilty plea to being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The parties stipulated
in the plea agreement that if Anzures was determined to be an armed career criminal,
the court would sentence him to 15 years in prison, the mandatory minimum
sentence, see id. § 924(e)(1). Based on Anzures’ criminal record, as stipulated in the
plea agreement, the district court determined that Anzures was a career criminal and
sentenced him to 15 years in prison, pursuant to the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e). He did not appeal his sentence.
The ACCA defines a violent felony as one that:
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another [the elements clause]; or
(ii) is burglary, arson, or extortion, involves use of explosives [the
enumerated-offenses clause], or otherwise involves conduct that
presents a serious potential risk of physical injury to another [the
residual clause].
Id. § 924(e)(2)(B).
In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held that
the residual clause is unconstitutionally vague. Id. at 2256-57, 2563. The Supreme Court
later held that Johnson is retroactive in cases on collateral review, allowing defendants
previously sentenced under the ACCA’s residual clause to challenge their sentences.
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Welch v. United States, 136 S. Ct. 1257, 1268 (2016).1 Anzures’ § 2255 motion asserts
that after Johnson, his prior New Mexico conviction for commercial burglary cannot
support an ACCA enhanced sentence. He also asserts that three other prior felony
convictions—two for aggravated assault and one for aggravated battery—do not satisfy
the ACCA’s requirement of “the use, attempted use, or threatened use of physical force
against the person of another,” so cannot support his enhanced sentence. Adopting the
recommendation of a magistrate judge, the district court denied the motion and denied a
COA.
II. COMMERCIAL BURGLARY
Anzures argues that his conviction for commercial burglary fell within the
unconstitutionally vague residual clause and cannot support his ACCA sentence in light
of Johnson. We engage in a two-part analysis of a Johnson claim. First, we consider,
“as a matter of historical fact, whether the sentencing court relied on the residual clause
in imposing the ACCA sentence.” United States v. Lewis, 904 F.3d 867, 872 (10th Cir.
2018) (internal quotation marks omitted). In doing so, we “determine what the
sentencing court did—even if that decision would be erroneous under current law.” Id.
(internal quotation marks omitted). Second, we determine “whether an identified error is
harmless as a matter of law. That is, we must decide whether the sentencing court’s
reliance on the now-invalidated residual clause prejudiced the movant.” Id. (internal
quotation marks omitted).
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Anzures filed his § 2255 motion to vacate his sentence within a year of Johnson,
so his motion is timely. See United States v. Lewis, 904 F.3d 867, 870 (10th Cir. 2018).
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“The § 2255 movant bears the burden of proving by a preponderance of the
evidence that it was use of the residual clause that led to the sentencing court’s
enhancement of his sentence.” United States v. Copeland, 921 F.3d 1233, 1242
(10th Cir. 2019) (internal quotation marks omitted). The district court did not hold an
evidentiary hearing on the § 2255 motion to make factual findings, so we review the
order denying relief de novo. Id. at 1241. In reviewing the district court’s “ultimate
determination of whether [the] sentencing court relied on the residual clause[,] [w]e
review the district court’s factual determinations about the sentencing record for clear
error and the legal conclusions about the relevant background legal environment
de novo.” Id. at 1242 (internal quotation marks omitted).
To determine whether the sentencing court relied on the residual
clause, we examine (1) the sentencing record to confirm that there is no
mention whatsoever of the residual clause in the [pre-sentence report] or
any of the other sentencing court pleadings or transcripts, and (2) the
relevant background legal environment at the time of sentencing to
determine whether the district court would have needed to rely on the
residual clause.
Id. (internal quotation marks omitted). Here, the sentencing record does not indicate the
court’s reasons for imposing an ACCA sentence, so we evaluate the “relevant
background legal environment,” which is “a ‘snapshot’ of what the controlling law was at
the time of sentencing and does not take into account post-sentencing decisions that may
have clarified or corrected pre-sentencing decisions,” United States v. Snyder, 871 F.3d
1122, 1129 (10th Cir. 2017), cert. denied, 138 S. Ct. 1696 (2018).2
2
Anzures argues that Snyder is irrelevant to this case and its application
perpetuates the error that post-sentencing opinions cannot correct an earlier mistake. We
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The sentencing court counted as an ACCA predicate felony Anzures’ conviction
for commercial burglary. The relevant background legal environment in 2012 when
Anzures was sentenced provided that for a conviction to qualify as a “burglary” under the
ACCA’s enumerated-offenses clause, it must contain the following elements: “an
unlawful or unprivileged entry into, or remaining in, a building or other structure, with
intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990). Also
relevant to the background is this court’s holding prior to Anzures’ 2012 sentencing that
a conviction under New Mexico’s burglary statute qualified as a violent felony.
United States v. Ramon Silva, 608 F.3d 663, 669 (10th Cir. 2010), abrogated by
Mathis v. United States, 136 S. Ct. 2243 (2016).
The defendant in Ramon Silva had been convicted under N.M. Stat. Ann.
§ 30-16-3(B) for “enter[ing] a structure, a shed, located at 2024 Nancy SW, without
authorization or permission, with intent to commit any felony or a theft therein.” Id.
at 666. Anzures pled guilty to violating the same statute, having been charged with
“enter[ing] a structure, New Mexico Storage and Lock, located at 220 Isletta SW,
without authorization or permission, with intent to commit any felony or a theft
therein.” R. Vol. 1, at 58 (emphasis added).
disagree for two reasons. First, we have repeatedly used the Snyder paradigm in
post-conviction cases alleging Johnson errors. See, e.g., Copeland, 921 F.3d at 1242;
United States v. Driscoll, 892 F.3d 1127, 1133 (10th Cir. 2018); Lewis, 904 F.3d at 873.
Second, one panel of this court cannot ignore binding precedent from a prior panel. See
United States v. Badger, 818 F.3d 563, 569 (10th Cir. 2016).
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In Ramon Silva, this court rejected the defendant’s argument that a shed did
“not satisfy the ‘building or other structure’ element in generic burglary,” 608 F.3d at
666, holding that “the ‘building or other structure’ element of generic burglary
encompasses those burglaries that have been committed in a building or enclosed
space, not in a boat or motor vehicle,” id. at 668 (ellipsis and internal quotation
marks omitted). See also United States v. King, 422 F.3d 1055, 1058-59 (10th Cir.
2005) (holding that New Mexico commercial burglary conviction for “enter[ing] a
structure, American Self-Storage Unit #136, without authorization or permission,
with intent to commit a theft therein” “established the generic elements of burglary”
(ellipsis and internal quotation marks omitted)).
In view of this background legal environment, “there would have been little
dispute at the time of [Anzure’s] sentencing that his [New Mexico commercial
burglary conviction] fell within the scope of the ACCA’s enumerated crimes clause.”
Snyder, 871 F.3d at 1129. Therefore, Anzures has not established by a
preponderance of the evidence that the sentencing court relied on the residual clause
to categorize his commercial burglary conviction as an ACCA predicate offense.
Anzures makes several arguments based on Mathis and other opinions
announced after he was sentenced in 2012. But at this stage, the inquiry is whether a
reasonable jurist could conclude that Anzures has established a Johnson error—that
the sentencing court more likely than not relied on the ACCA’s residual clause.
Lewis, 904 F.3d at 870-71. Our conclusion that Anzures has not made the requisite
showing ends the inquiry. “Mathis and other current, post-sentence cases are only
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applicable at the harmless error stage of review, once the movant has established the
existence of a Johnson error.” Id. at 873. Accordingly, Anzures has failed to make
the showing necessary for issuance of a COA.
III. REMAINING NEW MEXICO PRIOR FELONIES
Anzures asserts that his prior convictions for aggravated assault and
aggravated battery were not violent felonies so they cannot support his ACCA
sentence. Because these convictions are not for offenses enumerated in
§ 924(e)(2)(B)(ii), we examine them under the elements clause in § 924(e)(2)(B)(i).
See United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017).
We review de novo the legal question of “[w]hether a prior conviction satisfies the
ACCA’s violent felony definition.” United States v. Titties, 852 F. 3d 1257, 1263
(10th Cir. 2017). Again, Anzures must first establish Johnson error, meaning that the
sentencing court more likely than not relied on the residual clause when it sentenced him
under the ACCA.
A. New Mexico Aggravated Assault
Anzures has two prior convictions for aggravated assault that the district court
counted as ACCA predicate felonies. He contends these convictions do not have as
an element the use, attempted use, or threatened use of physical force against the
person of another, and therefore, they cannot be used to enhance his sentence.
The relevant New Mexico statute states:
Aggravated assault consists of either:
A. unlawfully assaulting or striking at another with a deadly weapon;
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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.
N.M. Stat. Ann. § 30-3-2.
To determine whether the prior convictions for aggravated assault under New
Mexico law satisfy the elements clause of the ACCA, we “apply the categorical
approach and examine only the elements of the offense, without regard to [Anzures’]
specific conduct.” United States v. Maldonado-Palma, 839 F.3d 1244, 1248 (10th
Cir. 2016) (10th Cir. 2016). Accordingly, “we consider only whether the statute of
conviction required proof of the use, threatened use or attempted use of physical
force[, which] means ‘violent force—that is, force capable of causing physical pain
or injury to another person.’” Id. (quoting Johnson v. United States, 559 U.S. 133, 140
(2010) (Curtis Johnson) (further citation and internal quotation marks omitted).
“[G]uilty pleas may establish predicate offenses” for ACCA purposes, so long as the
criminal statute that forms the basis for the predicate offense is divisible. See
Shepard v. United States, 544 U.S. 13, 19-21 (2005) (plurality); see also Taylor, 495
U.S. at 602; United States v. Ventura-Perez, 666 F.3d 670, 674-76 (10th Cir. 2012). In
the plea agreement in the underlying criminal case, Anzures acknowledged that both
of his relevant aggravated-assault convictions were for the deadly-weapon version of
aggravated assault, Suppl. R. at 18, so we consider § 30-3-2(A).
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In Maldonado-Palma, we held “that aggravated assault with a deadly weapon
under N.M. Stat. Ann. 30-3-2(A) is categorically a crime of violence.” Id. at 1250.
Although the court in Maldonado-Palma applied the elements clause of § 2L1.2 of
the United States Sentencing Guidelines, the relevant language of the Guideline is
similar to that of the ACCA. See U.S.S.G. § 2L1.2 cmt. n.2 (including in definition
of “crime of violence” an offense “that has as an element the use, attempted use, or
threatened use of physical force against the person of another”). This similarity is
instructive “in determining whether a conviction qualifies as a violent felony.”
Ramon Silva, 608 F.3d at 671 (internal quotation marks omitted). Further, even
though Anzures was sentenced before we decided Maldonado-Palma, the decision’s
reasoning is sound. Therefore, Anzures has not shown that it is more likely than not
that, at the time of his sentencing, the district court would have conducted a different
analysis and sentenced him under the residual clause of the ACCA.
Anzures maintains that our cases interpreting N.M. Stat. Ann. 30-3-2(A) are
no longer good law because State v. Branch, 2018-NMCA-031, ⁋ 21, 417 P.3d 1141,
1149, cert. denied (Mar. 16, 2018), demonstrates that aggravated assault does not
require a specific intent to use a deadly weapon “against the person of another.”
Thus, he asserts, his convictions cannot support an ACCA sentence. But Branch’s
holding that aggravated assault is a general-intent crime does not alter the applicable
law. As Ramon Silva recognized, “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[; thus confirming] that aggravated assault is not a specific intent crime, but
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rather is a general intent crime.” 608 F.3d at 673 (brackets, citations, and internal
quotation marks omitted). The offense is a violent felony because it requires
“unlawfully assaulting or striking at another,” § 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 at least threatens the use of physical force
against the person of another. Therefore, Anzures’ two convictions for aggravated
assault qualified as predicate felonies under the ACCA’s elements clause, and he has not
made the showing required for issuance of a COA.
B. New Mexico Aggravated Battery
Anzures objects to the use of his prior conviction for aggravated battery to
enhance his sentence. We need not consider whether this conviction qualifies under the
ACCA, however. Even without this conviction, Anzures has three previous convictions
for violent felonies—one for commercial burglary and two for aggravated assault—so his
mandatory minimum sentence was 15 years in prison. See 18 U.S.C. § 924(e)(1)
(providing that “a person who violates [18 U.S.C.] section 922(g) . . . and has three
previous convictions . . . for a violent felony . . . shall be . . . imprisoned not less than
fifteen years”).
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IV. CONCLUSION
Anzure’s request for a COA is denied and this matter is dismissed.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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