FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 27, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-2070
(D.C. Nos. 1:16-CV-00622-JCH-KRS &
PERMANUEL CASTILLO, 1:12-CR-02836-JCH-1)
(D. N.M.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
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Defendant Permanuel Castillo seeks a certificate of appealability (“COA”) to
appeal the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence. See 28 U.S.C. § 2253(c)(1)(B) (“Unless a circuit justice or judge
issues a certificate of appealability, an appeal may not be taken to the court of appeals
from . . . the final order in a proceeding under section 2255.”). We deny the request for a
COA and dismiss this matter.
Castillo pled guilty, pursuant to Fed. R. Crim. P. 11(c)(1)(C), to using a firearm in
relation to a crime of violence, in violation of 18 U.S.C. § 924(c). The plea agreement
*
This order is not binding precedent, except under the doctrines of law of the case,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.
provided that the Government would move to dismiss the predicate offenses, two counts
of assault under 18 U.S.C. §§ 113(a)(3) and (a)(6). Under the agreement, Castillo also
waived his rights to appeal his conviction and sentence, or to collaterally attack his
conviction and sentence.
On June 26, 2015, the Supreme Court held that § 924(e)(2)(B)’s “residual” clause
was unconstitutionally vague. United States v. Johnson, 576 U.S. ---, 135 S.Ct. 2551
(2015). Based on that change in Supreme Court precedent, Castillo filed a § 2255 motion
challenging his conviction, as the residual clause of § 924(c) contained extremely similar
language.1 Castillo argues that his waiver of the right to seek collateral relief was not
knowing and voluntary and his § 2255 action may proceed; and that the predicate crimes,
assault with a dangerous weapon under § 113(a)(3) and assault resulting in serious bodily
injury under § 113(a)(6), are not crimes of violence, rendering his conviction unlawful.
“A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A
defendant must show that the district court’s resolution was either “debatable or wrong.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000). In this context, Castillo must demonstrate
“that jurists of reason would find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would find it debatable
whether the district court was correct in its procedural ruling.” Id. (internal quotation
marks omitted).
1
The Supreme Court has subsequently held the residual clause of § 924(c) is also
unconstitutionally vague. See United States v. Davis, --- U.S. ---, 139 S.Ct. 2319 (2019).
2
Even assuming that Castillo could overcome his waiver of collateral review, and
even assuming assault with a dangerous weapon under § 113(a)(3) might not be a crime
of violence, Castillo has not raised a valid claim. Castillo acknowledges in his own brief
that this court has already determined 18 U.S.C. § 113(a)(6) is categorically a crime of
violence under § 924(c)(3)(A). See Aplt.’s Br. at 14 (citing United States v. Mann, 899
F.3d 898, 906 (10th Cir. 2018)). Castillo also notes that, absent en banc consideration,
one panel of this court cannot overturn the decision of another. Id. (citing United States v.
Doe, 865 F.3d 1295, 1298 (10th Cir. 2017)). Therefore, Castillo has not identified a
viable constitutional challenge to his sentence.
Castillo’s request for a COA is DENIED and this matter is DISMISSED.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
3
United States v. Castillo
Combined Opinion