FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
April 21, 2020
FOR THE TENTH CIRCUIT
_________________________________ Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v. No. 17-2150
(D.C. No. 1:15-CR-03230-MV-1)
JOSE VELASQUEZ, (D.N.M.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.
_________________________________
The government appeals the district court’s determination that New Mexico
robbery is not a crime of violence under the Armed Career Criminal Act (ACCA) of
1984, 18 U.S.C. § 924(e). For the reasons explained below, we reverse.
Background
Jose Velasquez pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The ACCA establishes a mandatory
minimum sentence of 15 years in prison for an individual who both violates § 922(g) and
has three prior convictions for “violent felon[ies].” § 924(e). Velasquez has three prior
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive
value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
felony convictions, two of which are convictions for armed robbery under New Mexico
law. The probation office determined that all three convictions are violent felonies and
recommended that Velasquez be sentenced as an armed career criminal under the ACCA.
Velasquez objected to the sentence recommendation and argued that his robbery
convictions are not predicate offenses under the ACCA because New Mexico robbery
does not have” as an element the use, attempted use, or threatened use of physical force.”
R. vol. 1, 25 (quoting § 924(e)(2)(B)(i)). Therefore, according to Velasquez, New Mexico
robbery is not a “violent felony” within the meaning of the ACCA. Id. The district court
sustained the objection, and the government appealed.
The government then asked to abate this case pending the resolution of United
States v. Garcia, 877 F.3d 944 (10th Cir. 2017), which presented the same issue. We
granted the government’s motion and then lifted the abatement after we issued our
decision in Garcia.
Analysis
We review de novo whether New Mexico robbery is a violent felony and thus a
predicate offense for purposes of the ACCA’s mandatory minimum sentence. See United
States v. Hill, 53 F.3d 1151, 1153 (10th Cir. 1995). The ACCA defines “violent felony”
as a crime that “has as an element the use, attempted use, or threatened use of physical
force against the person of another.” § 924(e)(2)(B)(i). And New Mexico’s robbery
statute defines robbery as “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.” N.M. Stat. Ann. § 30-16-2. “Therefore, the two basic elements of [New
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Mexico] robbery are theft and the use or threatened use of force.” State v. Bernal, 146
P.3d 289, 294 (N.M. 2006). But although both the ACCA and New Mexico robbery refer
to “force,” our inquiry does not end there. That is because under the ACCA, “‘physical
force’ means violent force—that is, force capable of causing physical pain or injury to
another person.”1 Johnson v. United States, 559 U.S. 133, 138,140 (2010) (quoting
§ 924(e)(2)(B)(i)). Thus, we must determine whether New Mexico robbery requires the
use of physical force that is “capable of causing physical pain or injury to another
person.” Id. at 140.
In doing so, “we apply the categorical approach, focusing on the elements of the
crime of conviction, not the underlying facts.”2 United States v. Harris, 844 F.3d 1260,
1263 (10th Cir. 2017). Under this approach, we “identify the minimum force required by
[New Mexico] law for the crime of robbery and then determine if that force categorically
fits the [ACCA’s] definition of physical force.” Id. at 1264 (emphases omitted). Such
determination is not a theoretical exercise. See id. Instead, we examine decisions from the
New Mexico Supreme Court, supplemented by decisions from the New Mexico Court of
Appeals, to determine whether there is a “realistic probability” that the minimum force
1
The definition of physical force has two parts: it “means force that is both
(1) physical and (2) violent.” United States v. Fagatele, 944 F.3d 1230, 1233 (10th Cir.
2019). Here, the parties only dispute—and therefore we only address—whether the force
required to commit New Mexico robbery is violent.
2
Whether we apply the categorical approach or the modified categorical approach
depends on whether the statute is divisible. See United States v. Titties, 852 F.3d 1257,
1267 (10th Cir. 2017). Here, both parties propose that we apply the categorical approach,
so we assume that the statute is indivisible and apply that approach.
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required to commit New Mexico robbery comports with the force required by the ACCA.
Id.
Below, the district court determined that New Mexico robbery is not a violent
felony under the ACCA and thus implicitly concluded that New Mexico robbery does not
require the use of violent force. But while this appeal was pending, we held in Garcia
that New Mexico robbery is a violent felony under the ACCA. 877 F.3d at 956. And in
doing so, we analyzed the ACCA’s physical-force requirement in terms of force that is
“more than minimal actual force.” Id. at 950.
Nevertheless, Velasquez urges us not follow Garcia’s holding: according to
Velasquez, Garcia is no longer good law after the Supreme Court’s intervening decision
in Stokeling v. United States, 139 S. Ct. 544 (2019). Stokeling, for its part, analyzed
ACCA force in terms of overcoming a victim’s resistance. 139 S. Ct. at 550. And this
court did question, post-Stokeling, whether overcoming resistance could theoretically
differ from Garcia’s minimal-force approach. See United States v. Ash, 917 F.3d 1238,
1242 n.5 (10th Cir. 2019) (noting that Garcia “arguably applied” different standard than
Stokeling), petition for cert. filed, (U.S. June 12, 2019) (No. 18-9639). But we recently
decided, contrary to Velasquez’s argument, that Garcia remains good law because
Stokeling supplements—rather than undermines—Garcia. See United States v.
Manzanares, No. 18-2010, slip op. at 7 (10th Cir. Apr. 17, 2020). Thus, our interpretation
of New Mexico’s robbery statute is controlled by Garcia and requires our reversal of this
case. But because Velasquez frames the majority of his arguments in terms of Stokeling,
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we further conclude—for the reasons explained below—that Stokeling likewise requires
reversal.
In Stokeling, the Court examined the nature of physical force under the ACCA in
the context of a Florida robbery statute. Stokeling, 139 S. Ct. at 550. Specifically, the
Court considered whether force required to overcome a victim’s resistance constituted
physical force under the ACCA. Id. In considering this issue, the Court determined that
ACCA force “encompasses the degree of force necessary to commit common-law
robbery.” Id at 555. And it further concluded that common-law force does not require a
particular degree of violence by the perpetrator or a particular degree of resistance from
the victim. Id. at 550. Instead, theft becomes common-law robbery when any amount of
force is used to overcome any amount of resistance. Id. For example, common-law
robbery includes the force used to break a chain attached to a person as well as the force
required “to pull a diamond pin out of a woman’s hair when doing so tore away hair
attached to the pin.” Id. And because the ACCA includes the same level of force required
to commit common-law robbery, the Court held that the ACCA “encompasses robbery
offenses that require the criminal to overcome the victim’s resistance.” Id.
Here, the application of Stokeling to New Mexico’s robbery statute leads to the
same result. “[T]he two basic elements of [New Mexico] robbery are theft and the use or
threatened use of force.” Bernal, 146 P.3d at 294. And New Mexico courts specify that
theft of property “attached” to an individual or to his or her clothing becomes robbery
only when the defendant uses “sufficient force so as to overcome the resistance of
attachment.” State v. Curley, 939 P.2d 1103, 1105 (N.M. Ct. App. 1997). That is, “the
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force or threatened use of force must be the lever that serves to separate the property from
the victim.” State v. Hamilton, 6 P.3d 1043, 1046 (N.M. Ct. App. 2000); see also State v.
Lewis, 867 P.2d 1231, 1233 (N.M. Ct. App. 1993) (“[T]he use or threatened use of force
must be the factor by which the property is removed from the victim’s possession.”). For
example, in State v. Segura, the defendant committed robbery when the force required to
take the victim’s tightly held purse caused her to lose her balance and fall. 472 P.2d 387,
387–88 (N.M. Ct. App. 1970). On the other hand, in State v. Sanchez, a defendant who
merely picked a victim’s pocket was not guilty of robbery because force or threat of force
was not the “moving cause inducing the victim to part unwillingly with his [or her]
property.” 430 P.2d 781, 782 (N.M. Ct. App. 1967). Thus, because (1) Stokeling makes
clear that the force necessary to overcome a victim’s resistance qualifies as violent force
under the ACCA and (2) New Mexico robbery requires force necessary to overcome a
victim’s resistance, the minimum amount of force needed to commit New Mexico
robbery is violent force under the ACCA under Stokeling. See United States v. Barela,
768 F. App’x 821, 824 (10th Cir. 2019) (unpublished) (concluding that New Mexico
robbery is predicate offense for ACCA under test set forth in Stokeling).
Velasquez’s arguments to the contrary do not alter this conclusion. Velasquez first
argues that “the amount of force necessary” to commit New Mexico robbery is “wholly
immaterial” such that New Mexico robbery does not require violent force. Aplee. Br. 10.
In support, he cites cases indicating that, when determining whether a theft amounts to
New Mexico robbery, “the issue is not how much force was used.” Sanchez, 430 P.2d at
782; see also Segura, 472 P.2d at 387 (“[T]he amount or degree of force is not the
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determinative factor.”). But despite these isolated statements, these cases, when read in
their entirety, do not suggest that the amount of force used is irrelevant—instead they
indicate that the issue is “whether the force was sufficient to compel the victim to part
with his [or her] property.” Sanchez, 430 P.2d at 782. And Stokeling held that the type of
force that overcomes a victim’s resistance is violent force—no matter how much of that
particular type of force is used. See 139 S. Ct. at 553 (explaining that nonviolent
“nominal” force “is different in kind from the violent force necessary to overcome
resistance by a victim” (emphasis added)). That is, the New Mexico robbery statute, like
the statute at issue in Stokeling, defines force not in terms of degree but in terms of
overcoming resistance. See Curley, 939 P.2d at 1105. And according to Stokeling,
overcoming resistance necessarily qualifies as violent force and is thus sufficient to
satisfy the physical-force requirement of the ACCA. See Stokeling, 139 S. Ct. at 555.
Next, Velasquez argues that under Stokeling, the threat of force necessary to
satisfy the ACCA must “instill fear to cause a reasonable person to part with the
property” and that New Mexico robbery does not require that threats of force do so.
Aplee. Br. 15 (emphasis added). Specifically, he argues that Stokeling “tacitly adopted
the common law’s differentiation between constructive” and “actual force” and that at
common law, constructive force had to put a victim in fear. Id. 14–15. But Velasquez’s
argument mischaracterizes Stokeling. Although Stokeling held that ACCA force
encompasses the common law, it did not limit ACCA force to the common law. See 139
S. Ct. at 551. Thus, Stokeling did not “tacitly adopt[] the common law’s differentiation
between constructive” and “actual force.” Aplee. Br. 14.
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Further, even assuming that Stokeling did adopt the common-law differentiation
between constructive and actual force, Velasquez also mischaracterizes common-law
constructive force. Velasquez’s position is that common-law constructive force and, by
extension, ACCA constructive force, requires a threat menacing enough to make the
robbery victim feel fear. And it is true that common-law robbery characterized
constructive force as the taking of property by “putting in fear.” 4 William Blackstone,
Commentaries on the Laws of England 242 (1769) [hereinafter Blackstone]; see also
Stokeling, 139 S. Ct. at 550 (relying on 1769 edition of Blackstone’s Commentaries on
the Laws of England for definition of common-law robbery when analyzing ACCA). But
contrary to its phrasing, “putting in fear” did not require “a degree of terror or affright in
the party robbed.” Blackstone at 242. Instead, constructive force was sufficient to
constitute robbery if the force “oblige[d] a man [or woman] to part with his [or her]
property without or against his [or her] consent.” Id. Thus, the common law analyzed
constructive force in the same way as it analyzed actual force, where the requisite level of
force was a matter of causality, not degree. See Stokeling, 139 S. Ct. at 550. Accordingly,
and contrary to Velasquez’s argument, we need not consider whether New Mexico
robbery requires that a victim reasonably feel fear because, even under the common-law
constructive-force analysis, the pertinent inquiry is whether the threat of force caused the
victim to part with his or her property. And here, New Mexico robbery requires that “the
force or threatened use of force . . . be the lever that serves to separate the property from
the victim.” Hamilton, 6 P.3d at 1046. Therefore, we reject Velasquez’s argument that
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New Mexico robbery is not a predicate offense under the ACCA because it does not
require putting a victim in fear.
Conclusion
New Mexico’s robbery statute requires violent force that categorically fits the
definition of physical force in § 924(e)(2)(B)(i) of the ACCA. Therefore, New Mexico
robbery is a predicate offense for purposes of the ACCA. We reverse the ruling of the
district court concluding otherwise and remand for resentencing consistent with this
opinion.
Entered for the Court
Nancy L. Moritz
Circuit Judge
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