United States v. Baker

49 F.4th 1348

Opinion

Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS September 26, 2022 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 20-3062

ABASI S. BAKER,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Kansas (D.C. Nos. 2:16-CV-02460-JWL & 2:11-CR-20020-JWL-1) _________________________________

Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado for Defendant-Appellant

Daniel N. Lerman, Attorney (Stephen R. McAllister, former United States Attorney, District of Kansas, James Brown and Jared Maag, Assistant United States Attorneys, District of Kansas; Nicholas L. McQuaid, Acting Assistant Attorney General; and Robert A. Zink, Acting Deputy Assistant Attorney General; Kenneth A. Polite, Jr., Assistant Attorney General, and Lisa H. Miller, Deputy Assistant Attorney General, with him on the briefs), United States Department of Justice, Criminal Division, Appellate Section, Washington, DC, for Appellee _________________________________

Before HARTZ, HOLMES, and EID, Circuit Judges. _________________________________

HOLMES, Circuit Judge. _________________________________ Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 2

Defendant-Appellant Abasi S. Baker (“Mr. Baker”) appeals from the district

court’s denial of his second or successive motion pursuant to 28 U.S.C. § 2255,

challenging his convictions under 18 U.S.C. § 924(c). After we authorized this

motion based on the Supreme Court’s 2019 decision in United States v. Davis, ---

U.S. ----, 139 S. Ct. 2319, 2336 (2019), and the district court denied it, we granted

Mr. Baker a certificate of appealability (“COA”) on the following issue:

In light of the contention that Hobbs Act robbery can be accomplished by threatening injury to intangible property, was United States v. Melgar- Cabrera, 892 F.3d 1053, 1064-66 (10th Cir. 2018) (holding that Hobbs Act robbery qualifies as a crime of violence under the elements clause of § 924(c)(3)(A)), wrongly decided because Hobbs Act robbery would not qualify as a crime of violence either categorically under § 924(c)(3)(A) or under § 924(c)(3)(B) after United States v. Davis[]?

Order, No. 20-3062, at 1 (10th Cir., filed June 10, 2020). Rather than directly

address this issue, however, Mr. Baker, in his supplemental opening brief, 1 requests

that we exercise our discretion to “expand” the COA to cover the following, reframed

issue:

1 We appointed the Office of the Federal Public Defender for the District of Colorado to represent Mr. Baker in his appeal, pursuant to 18 U.S.C. § 3006A(a)(2)(B). See Aplt.’s Combined Opening Br. and Appl. for a COA; Order, No. 20-3062 at 2 (10th Cir., filed June 10, 2020). We also established the parties’ briefing schedule and specifically ordered Mr. Baker’s counsel to file a supplemental opening brief within sixty days of our order, which counsel did.

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Is Mr. Baker entitled to § 2255 relief because (a) the offenses relating to Hobbs Act robbery that underlie his § 924(c) convictions could have been committed by a threat to property; (b) the modified categorical approach does not rule out this possibility; (c) this court has no binding precedent that prevents it from holding that Hobbs Act robbery by a threat to property (whether tangible or intangible) does not satisfy § 924(c)’s force [i.e., elements] clause;[2] and (d) he can show his convictions rest on § 924(c)’s unconstitutional residual clause?

Aplt.’s Suppl. Opening Br. at 2. In other words, Mr. Baker effectively attempts: (1)

to argue that Hobbs Act robbery, when accomplished through threats to injure any

property—tangible or intangible—is not a crime of violence under § 924(c)(3)(A),

and (2) our decision in United States v. Melgar-Cabrera, where we held Hobbs Act

robbery categorically qualifies as a crime of violence under § 924(c)(3)(A), see 892

F.3d 1053, 1060 n.4 (10th Cir. 2018), does not bar his argument because it is

inapposite.

Moreover, during the pendency of this appeal, the Supreme Court decided

United States v. Taylor, --- U.S. ----, 142 S. Ct. 2015 (2022), holding that attempted

Hobbs Act Robbery is not a crime of violence. We ordered supplemental briefing in

light of Taylor, see Order, No. 20-3062, at 1 (10th Cir., filed June 23, 2022), and in

Mr. Baker’s brief, he requests that we either summarily vacate his § 924(c)

2 As will become apparent from our discussion, courts and litigants alike refer synonymously to the language of § 924(c)(3)(A) as either the “elements or force clause.” Melgar-Cabrera, 892 F.3d at 1060. 3 Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 4

conviction charged in Count 11—which is predicated on his conviction for attempted

Hobbs Act robbery—or remand the case to the district court to allow him to amend

his § 2255 motion to make a Taylor-like argument. Aplt.’s Suppl. Br. Filed Post-

Taylor at 5.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s

dismissal of Mr. Baker’s § 2255 motion, deny Mr. Baker’s request to expand the

COA and dismiss that portion of this matter, and remand the case to allow the

district court to determine in the first instance whether it is lawful and otherwise

appropriate to permit Mr. Baker to amend his § 2255 motion to make a Taylor-like

argument as to Count 11.

I

In March 2011, Mr. Baker was charged with numerous federal crimes in a

multi-count indictment, including seven counts of Hobbs Act robbery, in violation of

18 U.S.C. § 1951; seven counts of using a firearm during and in relation to a crime of

violence (i.e., the Hobbs Act robberies), in violation of 18 U.S.C. § 924(c); and seven

counts of being a convicted felon in possession of a handgun, in violation of 18

U.S.C. § 922(g). See generally United States v. Baker, 713 F.3d 558, 559 (10th Cir.

2013); see also Case No. 2:11-cr-20020-JWL, Doc. 16 (Indictment, filed Mar. 29,

2011). 3 Count 11 specifically charged Mr. Baker with a violation of § 924(c) based

3 Mr. Baker has not included documents from his initial prosecution, such as the indictment and jury verdict, in the record on appeal. We take judicial notice of these documents from the district court’s docket. See, e.g., Bunn v. Perdue, 966 F.3d 1094, 1096 n.4 (10th Cir. 2020) (“Some of the relevant . . . filings in district court . . . 4 Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 5

on a crime-of-violence predicate of attempted Hobbs Act robbery. See Case No.

2:11-cr-20020-JWL, Doc. 16, at 6; Aplt.’s Suppl. Br. Filed Post-Taylor at 5.

The charges related to a series of armed robberies in the Kansas City, Kansas,

area in early 2011. See Baker, 713 F.3d at 560. Following a jury trial, Mr. Baker

was convicted on all counts, see Case No. 2:11-cr-20020-JWL, Doc. 55 (Jury

Verdict, filed Sept. 15, 2011), and he was sentenced to a total term of imprisonment

of 164 years, see id., Doc. 69 (Judgment, entered Jan. 18, 2012). We affirmed

Mr. Baker’s convictions. See Baker, 713 F.3d at 563.

Mr. Baker brought his first collateral challenge to his convictions under 28

U.S.C. § 2255 in 2014, but it was unsuccessful. See Case No. 2:11-cr-20020-JWL,

Doc. 207 (Dist. Ct. Mem. & Order, entered June 17, 2015) (denying Mr. Baker’s

petition to vacate, set aside, or correct his sentence). In 2016, Mr. Baker moved for

authorization to file a second or successive § 2255 motion predicated on the

purported invalidity of § 924(c)(3)(B), that is, the section’s “residual clause.” See

Appl. for Leave to File a Successive Mot. under 28 U.S.C. § 2255, No. 16-3131 (10th

Cir., filed May 20, 2016). Following United States v. Davis, in which the Supreme

Court invalidated § 924(c)’s residual clause as unconstitutionally vague, we

authorized Mr. Baker to file a successive § 2255 motion under § 2255(h)(2), as it

would “rel[y] on ‘a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that was previously unavailable.’” R. at 29

were not included in the record on appeal, but they are accessible from the district court docket. We may therefore take judicial notice of the filings.”). 5 Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 6

(10th Cir. Order, filed Jan. 8, 2020) (citing In re Mullins, 942 F.3d 975, 979 (10th

Cir. 2019)). In the district court, Mr. Baker challenged the validity of his § 924(c)

convictions. Id. at 33–42 (Suppl. Br., filed Feb. 27, 2020). He argued that, given

that Davis rendered the residual clause “now void,” the only possible foundation for

declaring his Hobbs Act robbery convictions to be crimes of violence was the

elements clause, and that “Hobbs Act robbery is not ‘categorically’ a crime of

violence under the elements clause.” Id. at 35, 38.

The district court denied Mr. Baker’s motion. Id. at 61–62 (Mem. & Order,

entered Mar. 25, 2020). The court noted that we have “squarely held that Hobbs Act

robbery is categorically a crime of violence under the elements clause of

§ 924(c)(3)(A) because that clause requires the use of force and the force element in

Hobbs Act robbery ‘can only be satisfied by violent force.’” Id. (quoting Melgar-

Cabrera, 892 F.3d at 1064–65). The court also acknowledged that Mr. Baker

“argue[d] that Hobbs Act robbery is not a crime of violence because it can be

accomplished by damaging property,” and that he cited United States v. Bowen, 936

F.3d 1091 (10th Cir. 2019), for support. Id. at 62. However, Bowen, the district

court explained, “involved the relationship between 18 U.S.C. § 924(c)(3) and

witness retaliation—not Hobbs Act robbery”; moreover, Melgar-Cabrera remained

“binding precedent,” and Mr. Baker failed to show how “the Supreme Court’s

invalidation of § 924(c)(3)’s [distinct] residual clause [i.e., in Davis] . . . change[d]

Hobbs Act robbery’s status as a crime of violence.” Id. The court subsequently

denied Mr. Baker’s request for a COA. Id. at 66–67 (Mem. & Order, entered Apr.

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10, 2020) (declining to issue a COA because “[r]easonable jurists could not debate

the court’s decision to deny Mr. Baker’s petition in light of the fact that Hobbs Act

robbery, under Tenth Circuit precedent, is categorically a crime of violence under the

elements clause of § 924(c)(3)(A)”).

On appeal, Mr. Baker filed a pro se opening brief and application for a COA,

which we granted. See Aplt.’s Combined Opening Br. and Appl. for a COA; Order,

No. 20-3062, at 1 (10th Cir., filed June 10, 2020). “In accordance with § 2255(c),”

we granted a COA “as to the following issue”:

In light of the contention that Hobbs Act robbery can be accomplished by threatening injury to intangible property, was United States v. Melgar- Cabrera[] (holding that Hobbs Act robbery qualifies as a crime of violence under the elements clause of § 924(c)(3)(A)), wrongly decided because Hobbs Act robbery would not qualify as a crime of violence either categorically under § 924(c)(3)(A) or under § 924(c)(3)(B) after United States v. Davis[]?

Order, No. 20-3062, at 1 (10th Cir., filed June 10, 2020). In other words, by granting

the COA, we invited a reexamination of the validity and scope of our holding in

Melgar-Cabrera—more specifically, its crime-of-violence holding concerning the

elements clause, § 924(c)(3)(A))—against the backdrop of the Supreme Court’s

decision in Davis, which struck down the other potential basis for a § 924(c)(3)

crime-of-violence determination, the residual clause, § 924(c)(3)(B).

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Yet, as discussed above, Mr. Baker in his supplemental opening brief

effectively sidesteps the narrow question as to which we granted a COA—centered

on the vitality vel non of Melgar-Cabrera’s holding as applied to threats to injure

intangible property—and asks that we exercise our discretion to “expand” the COA

to cover his broader argument that Hobbs Act robbery can be accomplished by

threatening injury to any property, thus it does not satisfy § 924(c)’s elements clause.

Aplt.’s Suppl. Opening Br. at 2. Particularly, Mr. Baker avers that “Melgar-Cabrera

does not prevent this court from accepting Mr. Baker’s position and neither does any

other decision of this court.” Id. at 11. For support, Mr. Baker points to United

States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017), and United States v. Bowen, 936

F.3d 1091, two cases from our Court that—together with the text from

§ 1951(b)(1)—ostensibly “lead[] to the unavoidable conclusion that Hobbs Act

robbery by a threat to property (and an attempted robbery by such means) is not a

crime of violence under § 924(c)(3)’s force clause.” Id. at 14.

Furthermore, in June 2022, the Supreme Court decided United States v. Taylor,

--- U.S. ----, 142 S. Ct. 2015, 2020 (2022), holding that attempted Hobbs Act robbery

is not a crime of violence. We ordered the parties to submit supplemental briefing

regarding Taylor’s implications (if any) for this case. Order, No. 20-3062, at 1 (10th

Cir., filed June 23, 2020). Notably, in his supplemental briefing, Mr. Baker does not

ask us to expand the COA to address his one § 924(c) conviction that is predicated on

the crime of attempted Hobbs Act robbery, Count 11. Instead, in light of Taylor,

Mr. Baker requests that we either summarily vacate his conviction on Count 11 or

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remand the case to the district court to allow him to amend his § 2255 motion to

make a Taylor-like argument. See Aplt.’s Suppl. Br. Filed Post-Taylor at 5–10.

II

Mr. Baker’s § 2255 motion challenges his § 924(c) convictions. “A motion to

vacate a sentence under 28 U.S.C. § 2255 ‘is generally the exclusive remedy for a

federal prisoner seeking to “attack[] the legality of detention.”’” United States v.

Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (alteration in original) (quoting Brace

v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011)). “On appeal from the denial

of a § 2255 motion,” where “the district court does not hold an evidentiary hearing,

but rather denies the motion as a matter of law upon an uncontested trial record, our

review is strictly de novo.” Bowen, 936 F.3d at 1096–97 (first quoting United States

v. Snyder, 871 F.3d 1122, 1125 (10th Cir. 2017); and then quoting United States v.

Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015)); accord United States v. Pullen, 913

F.3d 1270, 1275 (10th Cir. 2019).

Mr. Baker also requests that we expand the COA. “[C]ircuit courts, including

our own, have recognized that they possess the authority to expand the COA to cover

uncertified, underlying constitutional claims asserted by an appellant.” United States

v. Shipp, 589 F.3d 1084, 1087 (10th Cir. 2009). “Expansion of the certificate of

appealability is merited upon a showing that ‘reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.’”

Hancock v. Trammel, 798 F.3d 1002, 1025 (10th Cir. 2015) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)).

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More specifically, because the COA inquiry “is not coextensive with a merits

analysis,” the “only question” at the COA stage “is whether the applicant has shown

that ‘jurists of reason could disagree with the district court’s resolution . . . or that

jurists could conclude the issues presented are adequate to deserve encouragement to

proceed further.’” Buck v. Davis, --- U.S. ----, 137 S. Ct. 759, 773 (2017) (quoting

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). In fact, if a court of appeals “first

decid[es] the merits of an appeal, and then justif[ies] its denial of a COA based on its

adjudication of the actual merits, it is in essence deciding an appeal without

jurisdiction.” Id. (quoting Miller-El, 537 U.S. at 336–37).

III

A

Section 924(c)(1)(A) mandates a minimum five-year sentence for anyone

convicted of “us[ing] or carr[ying] a firearm” “during and in relation to any crime of

violence.” 18 U.S.C. § 924(c)(1)(A)(i); see United States v. King, 632 F.3d 646, 650

(10th Cir. 2011) (“Section 924(c)(1)(A) imposes a mandatory minimum five-year

sentence . . . .”). The statute defines “crime of violence” in two ways: the term

“means an offense that is a felony” and that either (A) “has as an element the use,

attempted use, or threatened use of physical force against the person or property of

another” or (B) “that by its nature, involves a substantial risk that physical force

against the person or property of another may be used in the course of committing the

offense.” 18 U.S.C. § 924(c)(3).

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In United States v. Davis, the Supreme Court held that clause (B)—the

“residual clause”—is unconstitutionally vague. 139 S. Ct. at 2336. After Davis,

then, a criminal conviction qualifies as a predicate “crime of violence” under

§ 924(c) only if it meets the terms of clause (A)—the “elements clause”—that is, only

if it “has as an element the use, attempted use, or threatened use of physical force

against the person or property of another.” Id. at 2324 (quoting § 924(c)(3)).

“To prevail on appeal, [a petitioner] must establish that his conviction[s]

cannot be sustained under § 924(c)’s elements clause.” United States v. Muskett, 970

F.3d 1233, 1238 (10th Cir. 2020), cert. denied, 147 S. Ct. 1710 (2021). To determine

whether a given crime qualifies under § 924(c)(3)’s elements clause, “we apply the

categorical approach,” which looks “only to the fact of conviction and the statutory

definition of the prior offense, and do[es] not generally consider the particular facts

disclosed by the record of conviction.” Bowen, 936 F.3d at 1102 (first citing United

States v. Ontiveros, 875 F.3d 533, 535 (10th Cir. 2017); and then quoting United

States v. Serafin, 562 F.3d 1105, 1107–08 (10th Cir. 2009)); accord Muskett, 970

F.3d at 1239. “That is, we consider whether the elements of the offense are of the

type that would justify its inclusion . . . [as a crime of violence], without inquiring

into the specific conduct of [a] particular offender.” Melgar-Cabrera, 892 F.3d at

1061 (omission and first alteration in original) (quoting Serafin, 562 F.3d at 1107–

08).

We compare the scope of conduct covered by the predicate crime’s elements

with § 924(c)(3)(A)’s definition of “crime of violence”—and, crucially, “we

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‘presume that [an offender’s] conviction rested upon nothing more than the least of

the acts criminalized, and then determine whether even those acts are encompassed

by [§ 924(c)(3)(A)].’” Bowen, 936 F.3d at 1102 (quoting Moncrieffe v. Holder, 569

U.S. 184, 190–91 (2013)); see Muskett, 970 F.3d at 1239 (“Under th[e] framework

[of the categorical approach], we must first identify the minimum force required to

commit the [offense at issue], and then ‘determine if that force categorically fits the

definition of physical force’ [in § 924(c)(3)(A)].” (quoting Ontiveros, 875 F.3d at

535–36)).

In this appeal, we are concerned with whether Hobbs Act robbery categorically

qualifies as a crime of violence under § 924(c)(3)(A). Hobbs Act robbery is defined

as follows:

Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.

18 U.S.C. § 1951(a). The statute further defines “robbery” as

the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or

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property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

Id. § 1951(b)(1).

B

The original issue as to which we granted a COA was, in pertinent part, whether

“[i]n light of the contention that Hobbs Act robbery can be accomplished by threatening

injury to intangible property, was [Melgar-Cabrera] . . . wrongly decided because Hobbs

Act robbery would not qualify as a crime of violence . . . categorically under

§ 924(c)(3)(A).” Order, No. 20-3062, at 1 (10th Cir., filed June 10, 2020) (emphasis

added). And as we have explained above, Mr. Baker further requests that “we expand the

COA to include” the reframed question he poses: that is, whether Hobbs Act robbery is

not a crime of violence because the offenses involving Hobbs Act robbery that underlie

his § 924(c) convictions could have been committed by a threat to any property, which

purportedly does not satisfy § 924(c)’s elements clause. Aplt.’s Suppl. Opening Br. at 3.

He writes that “[w]hat is true to threats to tangible property is also true as to threats to

intangible property.” Id. at 27; see also id. at 28 (“[A] threat to damage either tangible or

intangible property can be made without the threat of the violent force needed to satisfy

§ 924(c)’s force clause” (emphasis added)).

Mr. Baker does not opt to challenge the vitality of Melgar-Cabrera. Instead, he

suggests that Melgar-Cabrera’s holding is inapposite and contends that, regardless of that

case, his offenses of Hobbs Act robbery are not crimes of violence; accordingly, they

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would not support his convictions for violating 18 U.S.C. § 924(c). Id. at 10.

Specifically, he writes that “Hobbs Act robbery (or its attempt) by a threat to any

property—whether tangible or intangible—is not a crime of violence of § 924(c).” Id. at

10–11. And, as for Melgar-Cabrera, Mr. Baker thinks “Melgar-Cabrera did not consider

the argument” he makes on appeal: that decision, he avers, “merely rejected other

arguments for why Hobbs Act robbery does not satisfy the force clause.” Id. at 10.

Having carefully considered Mr. Baker’s arguments, however, we are not

persuaded. We conclude that Melgar-Cabrera is controlling here—both as to the original

issue regarding which we granted a COA, and as to the question Mr. Baker presents in his

expansion request. As to the expansion request, we need not adjudicate the merits of Mr.

Baker’s reframed question—and indeed cannot properly do so, see Buck, 137 S. Ct. at

773—in order to determine that the rejection of this question is not reasonably debatable

under Melgar-Cabrera. With that analytical limitation recognized, we conclude that

Melgar-Cabrera’s holding is fatal to both his appeal and his request for an expansion of

the COA.

In Melgar-Cabrera, we were faced with the question of whether Hobbs Act

robbery is a crime of violence under § 924(c)’s elements clause, and we resolved it

clearly, “employ[ing] the categorical approach,” to “conclu[de] that Hobbs Act

robbery is a crime of violence under the elements clause of § 924(c)(3).” 892 F.3d at

1060 n.4, 1061 (emphasis added). In other words, we concluded in Melgar-Cabrera

that Hobbs Act robbery is categorically a crime of violence. Id. at 1061. That we

reached this crime-of-violence determination under a categorical approach is

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important for present purposes because it means that, in effect, we concluded that

every act—including the least of the acts—criminalized by Hobbs Act robbery

constitutes a crime a violence. See, e.g., Moncrieffe, 569 U.S. at 191 (noting that in

the categorical approach “we must presume that the conviction” was grounded on

“[nothing] more than the least of th[e] acts” that the statute criminally punished

(alteration in original) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010))).

In our subsequent published decisions, we have left no doubt regarding the

categorical scope of our holding in Melgar-Cabrera. In United States v. Jefferson

(Jefferson I), for instance, we observed that Melgar-Cabrera “decided Hobbs Act

robbery is categorically a ‘crime of violence’ under § 924(c)(3)(A)’s elements clause

because the clause requires the use of violent force, i.e., force capable of causing

physical pain or injury to another person, and the force element in Hobbs Act robbery

can be satisfied only by violent force.” 911 F.3d 1290, 1296 (10th Cir. 2018), cert.

granted, judgment vacated in part on other grounds, 140 S. Ct. 861 (2020). We

reiterated our characterization of Melgar-Cabrera’s holding after the Supreme Court

remanded the same case (i.e., Jefferson) for reasons not bearing on Melgar-Cabrera.

See United States v. Jefferson (Jefferson II), 989 F.3d 1173, 1175 (10th Cir. 2021)

(“This [remand] language does not open up the entire case for reconsideration.

Instead, it requires us to consider only the applicability of the First Step Act. As a

result, our only job on remand is to determine whether the First Step Act affords

Jefferson relief . . . .”). Specifically, Jefferson II referred to “our holding in . . .

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Melgar-Cabrera . . . that Hobbs Act robbery is categorically a crime of violence

under . . . § 924(c)(3)(A).” Id. at 1175 n.1. 4

4 Likewise, numerous unpublished panel decisions from this Court— though not binding—have characterized Melgar-Cabrera’s holding as categorical. See, e.g., United States v. Nguyen, 845 F. App’x 791, 792 (10th Cir. 2021) (unpublished) (citing Melgar-Cabrera as holding “that the force element of a Hobbs Act robbery ‘[can] only be satisfied by violent force,’ and, therefore, Hobbs Act robbery is categorically a crime of violence under the elements clause of § 924(c)(3)(A)” (quoting United States v. Nguyen, 744 F. App’x 550, 552 (10th Cir. 2018) (unpublished))); United States v. Hendrickson, 831 F. App’x 421, 422–23 (10th Cir. 2020) (unpublished) (“Defendant maintains that under Davis, he is innocent of the § 924(c) charge because Hobbs Act robbery is not categorically a crime of violence. We previously rejected this argument in United States v. Melgar- Cabrera, where we explicitly held that Hobbs Act robbery is categorically a crime of violence under § 924(c)(3)(A)—the elements clause. And despite numerous arguments like Defendant’s, neither we nor the Supreme Court have reversed Melgar-Cabrera.” (citations omitted)); United States v. Toki, 822 F. App’x 848, 853 (10th Cir. 2020) (unpublished) (“[I]n Melgar-Cabrera, we categorically held that Hobbs Act robbery is a crime of violence based on the elements of the offense. . . . We conclude that under our binding precedent in Melgar-Cabrera, the constitutionality of [the defendants’] § 924(c) convictions predicated on Hobbs Act robbery is not reasonably debatable.” (citations omitted)), cert. granted, judgment vacated on other grounds, 142 S. Ct. 57 (2021) and 142 S. Ct. 58 (2021); United States v. Robinson, 757 F. App’x 781, 783 (10th Cir. 2019) (unpublished) (“Appellant’s argument is that Hobbs Act robbery is not a qualifying crime of violence under § 924(c). However, this argument is precluded by our decision in United States v. Melgar-Cabrera, . . . 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, and thus the invalidation of the separate residual clause does not change this crime’s status as a crime of violence.”); United States v. Pasley, 731 F. App’x 819, 821 (10th Cir. 2018) (unpublished) (noting our holding in Melgar-Cabrera “that Hobbs Act robbery is categorically a crime of violence under § 924(c)(3)(A)”); cf. United States v. Myers, 786 F. App’x 161, 162–63 (10th Cir. 2019) (unpublished) (“[E]ven if Davis ‘appeared to suggest’ that Hobbs Act robbery might not be a crime of violence under § 924(c)(3)(A), and we could reconsider Melgar-Cabrera, we would reach the same conclusion: Hobbs Act robbery is a crime of violence under the elements clause of § 924(c) . . . .”).

16 Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 17

Additionally, Mr. Baker’s own admissions on appeal make clear that, no

matter his efforts, his appeal and request to expand the COA cannot overcome

Melgar-Cabrera’s holding. Mr. Baker acknowledges that we should employ the

categorical approach in determining whether Hobbs Act robbery is a “crime of

violence” and that Hobbs Act robbery is not a divisible crime. See Aplt.’s Suppl.

Opening Br. at 17 (“The determination of whether Hobbs Act robbery satisfies the

[elements] clause is made without respect to the particular facts of Mr. Baker’s case.

Instead, this court employs the familiar categorical approach.”); id. at 18–19 (“The

modified categorical approach cannot be used as to Hobbs Act robbery. The Hobbs

Act is divisible between robbery and extortion . . . . But Hobbs Act robbery is not

further divisible.”). In effect, then, Mr. Baker acknowledges that either Hobbs Act

robbery is a crime of violence, or it is not, as judged by the minimum conduct made

culpable by its terms. See Bowen, 936 F.3d at 1102; Muskett, 970 F.3d at 1239.

Mr. Baker’s admissions are incompatible with the notion that Melgar-Cabrera

somehow left untouched a separate class of Hobbs Act robberies involving threats

against property that we may now assess with fresh eyes to determine if that class of

crimes qualifies as a crime of violence.

To be sure, Mr. Baker says that we can avoid Melgar-Cabrera by recognizing

that the case did not specifically grapple with his arguments here. See, e.g., Aplt.’s

Suppl. Opening Br. at 28, 30–31. As his reasoning goes, because Melgar-Cabrera

did not consider the possibility that Hobbs Act robbery can be accomplished through

threats or “fear of injury” directed towards intangible or tangible property, we can

17 Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 18

hold that Hobbs Act robberies committed by such threats are not qualifying crimes of

violence under § 924(c)(3)(A). See id. at 38–39 (explaining that “Melgar-Cabrera

did not address an argument based on a threat to intangible property” and “this court

did not resolve the issue Mr. Baker raises here in Melgar-Cabrera”); Aplt.’s Reply

Br. at 6, 10 (claiming that, because Melgar-Cabrera did not consider an argument

“that involved the fear of injury to property,” it does not constitute binding precedent

on that particular argument). However, we are constrained to reject this line of

reasoning.

“[U]nless and until the holding of a prior decision is overruled by the Supreme

Court or by the en banc court, that holding is the law of this Circuit regardless of

what might have happened had other arguments been made to the panel that decided

the issue first.” Thompson v. Weyerhaeuser Co., 582 F.3d 1125, 1130 (10th Cir.

2009) (alteration in original and capitalization added) (quoting Cohen v. Office

Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000)); see also United States v.

Manzanares, 956 F.3d 1220, 1225 (10th Cir. 2020) (“[W]e cannot overrule the

judgment of another panel of this court. We are bound by the precedent of prior

panels absent en banc reconsideration or a superseding contrary decision by the

Supreme Court.” (quoting In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per

curiam))), cert. denied, 141 S. Ct. 1396 (2021). In other words, the fact that the

defendant in Melgar-Cabrera did not provide the same or similar argument as

Mr. Baker’s argument here is of no moment; we are bound to follow Melgar-Cabrera

absent a contrary decision by the Supreme Court or en banc reconsideration of

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Melgar-Cabrera. And on that point, Mr. Baker does not contend that any Supreme

Court decision, nor an en banc decision of this Court, abrogates Melgar-Cabrera’s

holding.

Furthermore, Mr. Baker’s reliance on United States v. Bowen and United

States v. O’Connor to bolster his position is unavailing. See Aplt.’s Suppl. Opening

Br. at 10–13. Mr. Baker claims that, under those two decisions, his specific

“convictions for Hobbs Act robbery . . . are not crimes of violence under § 924(c)’s

force clause.” Id. at 10. Those two decisions, Mr. Baker avers, establish that Hobbs

Act robbery is not categorically a crime of violence under § 924(c)’s elements clause

“because it can be committed by a threat to harm property that does not involve a

threat to use violent force.” Id. at 21.

However, as a panel of our court has persuasively reasoned, “[w]e already

have stated that Bowen does not call into question Melgar–Cabrera’s holding that

Hobbs Act robbery is categorically a crime of violence.” United States v. Hopkins,

2022 WL 2610345, at *7 (10th Cir. July 8, 2022) (unpublished) (citing Jefferson II,

989 F.3d at 1175 n.1). “‘[I]n Bowen, we held the federal witness-retaliation statute

. . . does not qualify as a crime of violence under § 924(c)(3)(A) because it includes

witness retaliation through non-violent property damage,’ such as ‘spray painting a

car.’” Id. (alteration in original and capitalization added) (omission in original)

(quoting Jefferson II, 989 F.3d at 1175 n.1). “But the same is not true of Hobbs Act

robbery” since it “necessarily entails the use or threatened use of violent force

against a person or property.” Jefferson II, 989 F.3d at 1175 n.1 (emphasis omitted).

19 Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 20

Thus, Bowen did not abrogate or restrict Melgar-Cabrera’s holding, and Mr. Baker’s

reliance on Bowen is unavailing.

As to O’Connor, we observed that “[b]ecause Hobbs Act robbery encompasses

threats to property and generic robbery excludes threats that are limited to property,

the minimum conduct necessary to constitute Hobbs Act robbery does not

categorically fall within generic robbery.” O’Connor, 874 F.3d at 1155.

Accordingly, we ruled that Hobbs Act robbery is not a crime of violence under

U.S.S.G. § 4B1.2(a)(1). Id. at 1158. In reaching that holding, we rejected the

government’s argument that it would be “incongruous” to conclude that “Hobbs Act

robbery constitutes a crime of violence in relation to § 924(c)(3)(A) but not U.S.S.G.

§ 4B1.2(a)(1).” Id. We explained that the two “provisions are not mirror images” of

each other:

The force clause under § 4B1.2(a)(1)— the clause applicable here—provides an offense is a crime of violence if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” By contrast, the force clause in § 924(c)(3)(A) includes any crime that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”

Id. (first quoting U.S.S.G. § 4B1.2(a)(1); and then quoting 18 U.S.C. § 924(c)(3)(A)).

Thus, O’Connor found “[t]here is nothing incongruous about holding that Hobbs Act

robbery is a crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A), which

includes force against a person or property, but not for purposes of U.S.S.G.

20 Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 21

§ 4B1.2(a)(1), which is limited to force against a person.” Id. Under a similar logic,

it does not ineluctably follow that because Hobbs Act robbery is not a crime of

violence as defined in U.S.S.G. § 4B1.2(a)(1) that it is not a crime of violence as

defined in § 924(c)(3)(A). In sum, O’Connor, like Bowen, did not disturb our

holding in Melgar-Cabrera as to whether Hobbs Act robbery is categorically a crime

of violence under § 924(c)(3)(A). So, Mr. Baker’s reliance on O’Connor is

misplaced.

***

Accordingly, based on the foregoing analysis, we conclude that Mr. Baker’s

arguments are unavailing. We uphold the district court’s dismissal of Mr. Baker’s

§ 2255 motion as to the issue upon which we granted COA—which questioned the

vitality of Melgar-Cabrera’s holding as applied to threats to injure intangible

property. 5 Furthermore, applying the Supreme Court’s well-defined COA

5 Notably, the Fourth Circuit rejected an argument that “because Hobbs Act robbery may be accomplished by threatening another with injury to intangible property, such as shares of stock in a corporation, Hobbs Act robbery does not qualify as a crime of violence under the [elements] clause.” United States v. Mathis, 932 F.3d 242, 265 (4th Cir. 2019). The Fourth Circuit explained that “fear of injury” “necessarily ‘involves the threat to use [physical] force.’” Id. at 266 (alteration in original) (quoting United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016)); cf. United States v. Anglin, 846 F.3d 954, 965 (7th Cir.) (noting that a defendant’s argument “that a [Hobbs Act] robber[y] hypothetically could [be committed by] put[ting] his victim in ‘fear of injury’ without using or threatening force” was “contrary to [the circuit’s] precedents”), cert. granted, judgment vacated on other grounds, 138 S. Ct. 126 (2017). A panel of the Third Circuit similarly rejected defendants’ “hypotheticals” of committing Hobbs Act robbery “through fear of injury to intangible property,” noting that the hypotheticals “misconstrue the Hobbs Act robbery definition, and they misconstrue the definition of ‘physical force’ under Section 924(c)(3)(A).” United States v. Monroe, 837 F. App’x 898, 899–900 (3d 21 Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 22

framework, we deny Mr. Baker’s request to expand the COA: he fails to persuade us

that “reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Trammel, 798 F.3d at 1025 (quoting McDaniel, 529

U.S. at 484).

C

In June 2022, the Supreme Court decided United States v. Taylor. Taylor held

that attempted Hobbs Act robbery was categorically not a crime of violence under

§ 924(c)(3)(A). See 142 S. Ct. at 2024. However, Taylor left no room for reasonable

debate that the crime-of-violence status of the completed offense of Hobbs Act

robbery was not of analytical concern there; indeed, the Court expressly

acknowledged that the issue was not before it. See id. at 2020 (“Whatever one might

say about completed Hobbs Act robbery, attempted Hobbs Act robbery does not

satisfy the elements clause.”). Therefore, Taylor does not implicate our holding in

Melgar-Cabrera, which expressly addressed completed Hobbs Act robbery.

Taylor’s holding is nevertheless of keen interest to Mr. Baker because his

Count 11 conviction under § 924(c) is predicated on attempted Hobbs Act robbery.

See Case No. 2:11-cr-20020-JWL, Doc. 16, at 6; Aplt.’s Suppl. Br. Filed Post-Taylor

at 5. But Mr. Baker’s problem is that Taylor has no place in this appeal.

Cir.) (unpublished), cert. denied, 142 S. Ct. 247 (2021). Moreover, in a prior unpublished decision, this Court specifically held that Hobbs Act robbery is a crime of violence, notwithstanding the defendant’s argument that it is not because Hobbs Act robbery encompasses creating fear of harm to intangible property. See United States v. Dubarry, 741 F. App’x 568, 569–70 (10th Cir. 2018) (unpublished). 22 Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 23

Recall that the COA before us did not contemplate a separate and independent

crime-of-violence analysis for the offense of attempted Hobbs Act robbery. Rather,

our COA simply asked whether a Hobbs Act robbery—without distinguishing

between a completed or an attempted offense—which involved a threat to injure

intangible property was categorically a crime of violence under § 924(c)(3)(A). And,

importantly, prior to Taylor, Mr. Baker never advocated for such a separate and

independent analysis for attempted Hobbs Act robbery. More specifically, prior to

Taylor, though Mr. Baker mentioned that he had been convicted of attempted Hobbs

Act robbery at numerous points in his briefing, he never made a separate argument

for relief confined to his attempted Hobbs Act robbery conviction. See, e.g., Aplt.’s

Suppl. Opening Br. at 14, 16–17.

In other words, while Mr. Baker argued that the completed act of Hobbs Act

robbery is not categorically a crime of violence, he did not suggest—as the

government points out—that his conviction for attempted Hobbs Act robbery should

be analyzed separately on the crime-of-violence issue. See Aplee.’s Resp. Br. at 22

n.8 (“[Mr. Baker] does not contend that there is any difference between attempted

and completed Hobbs Act robbery for purposes of determining whether those

predicates qualify as crimes of violence under Section 924(c)(3)(A). Rather, he

contends that ‘Hobbs Act robbery (and its attempt) by a threat to property does not

satisfy § 924(c)’s force clause.’” (quoting Aplt.’s Suppl. Opening Br. at 11)); see also

Aplee.’s Resp. Br. Filed Post-Taylor at 8 (explaining that Mr. Baker did not contend

there is any difference between attempted and completed Hobbs Act robbery for

23 Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 24

purposes of the appellate issues before us). Therefore, Mr. Baker has not preserved

such an attempt-based, crime-of-violence argument for purposes of this appeal. See

Heard v. Addison, 728 F.3d 1170, 1175 (10th Cir. 2013) (“We do not reach

[petitioner’s argument] in this case, however, because . . . we conclude that

[petitioner] never raised such a claim, in his petition or otherwise, before the federal

district court.”); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e

routinely have declined to consider arguments that are not raised, or are inadequately

presented, in an appellant’s opening brief.”).

Notably, Mr. Baker does not argue now for an expansion of the COA in light

of Taylor. Instead, through his supplemental briefing, Mr. Baker asks that we either

summarily vacate his Count 11 conviction on the grounds that it is fatally infirm due

to Taylor, or alternatively, remand the proceedings to the district court to allow him

to amend his § 2255 motion to make a Taylor-like argument in the first instance.

Aplt.’s Suppl. Br. Filed Post-Taylor at 5–10. Because, as we have noted, the issue of

whether, standing alone, the offense of attempted Hobbs Act robbery is a crime of

violence was never properly raised in this appeal—that is, we did not grant a COA

regarding that issue—and, moreover, because Mr. Baker has failed to brief the issue

and has not sought an expansion of the COA to include the issue, we reject

Mr. Baker’s request to summarily vacate his Count 11 conviction based on Taylor.

That said, we remand this action to the district court to determine whether it is

legally permissible and otherwise appropriate to allow Mr. Baker to amend his

§ 2255 motion to advance a Taylor-like argument. See, e.g., Kerr v. Hickenlooper,

24 Appellate Case: 20-3062 Document: 010110744567 Date Filed: 09/26/2022 Page: 25

824 F.3d 1207, 1217 (10th Cir. 2016) (“Appellate courts have ‘discretion to remand

issues . . . to the trial court when that court has not had the opportunity to consider

the issue in the first instance.’” (quoting Salmon Spawning & Recovery All. v. U.S.

Customs & Border Prot., 550 F.3d 1121, 1134 (Fed. Cir. 2008))); cf. Tabor v. Hilti,

Inc., 703 F.3d 1206, 1227 (10th Cir. 2013) (“Where an issue has not been ruled on by

the court below, we generally favor remand for the district court to examine the

issue.”).

More specifically, among the issues that the district court must decide on

remand is whether such an amendment would be timely. See 28 U.S.C. § 2255(f);

United States v. Mathisen, 822 F. App’x 752, 753–54 (10th Cir. 2020) (unpublished)

(discussing the statute of limitations for § 2255 motions and amendments to such

motions). And, relatedly, the court must assess whether the amendment relates back

to Mr. Baker’s original § 2255 motion. See FED. R. CIV. P. 15(c)(1)(B) (“An

amendment to a pleading relates back to the date of the original pleading when . . .

the amendment asserts a claim or defense that arose out of the conduct, transaction,

or occurrence set out—or attempted to be set out—in the original pleading . . . .”);

United States v. Roe, 913 F.3d 1285, 1296 (10th Cir. 2019) (noting that an amended

§ 2255 motion can relate back to the date of the original § 2255 motion through the

workings of Federal Rule of Civil Procedure 15(c)(1)(B) in certain “constrained”

circumstances); id. at 1298 (explaining that “the operative question for purposes of

the applicability of Rule 15(c)(1)(B)’s relation-back provision is whether ‘the

original and amended [motions] state claims that are tied to a common core of

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operative facts.’” (quoting United States v. Trent, 884 F.3d 985, 992–93 (10th Cir.

2018)).

To be clear, however, in ordering this remand, it is not our intention to offer

any opinion—and we do not do so—on whether Mr. Baker should be permitted to

amend his § 2255 motion to include a Taylor-like argument or on the outcome of any

resulting proceeding, if such an amendment is permitted. In the first instance, we

leave those matters for the district court’s resolution.

IV

For the foregoing reasons, we AFFIRM the district court’s dismissal of

Mr. Baker’s § 2255 motion, DENY Mr. Baker’s request to expand the COA and

DISMISS that portion of this matter, and REMAND the case for further proceedings

consistent with this opinion.