United States v. Folse

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 26, 2024
• Docket: 23-2128
• Status: Unpublished

Opinion

Appellate Case: 23-2128 Document: 010111005334 Date Filed: 02/26/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT February 26, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Respondent - Appellee,

v. No. 23-2128 (D.C. Nos. 1:22-CV-00588-JB-JFR & KEVIN FOLSE, 1:15-CR-02485-JB-JFR-1) (D. N.M.) Petitioner - Appellant. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY * _________________________________

Before HARTZ, BALDOCK, and ROSSMAN, Circuit Judges. _________________________________

This court has previously affirmed the conviction and sentence of Defendant

Kevin Folse in the United States District Court for the District of New Mexico on four

counts of an indictment: one count of felon in possession of a firearm, see 18 U.S.C.

§§ 922(g)(1) and 924(a)(2); two counts of carjacking, see 18 U.S.C. § 2119; and one

count of using, carrying, possessing, and brandishing a firearm during and in relation to

and in furtherance of one of the charged carjackings, see 18 U.S.C. § 924(c). See United

States v. Folse, 854 F. App’x 276, 278–79 (10th Cir. 2021). Now serving that sentence in

a federal prison in Florida, Defendant has moved for relief in New Mexico federal district

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-2128 Document: 010111005334 Date Filed: 02/26/2024 Page: 2

court under 28 U.S.C. § 2255, seeking to set aside his conviction and sentence under

§ 924(c).

On June 30, 2023, the district court denied Defendant’s motion, denied a

certificate of appealability (COA), see 28 U.S.C. § 2253(c)(1)(B) (requiring COA to

appeal denial of relief under § 2255), and entered final judgment. Defendant now

requests a COA from this court. We deny the request and dismiss the appeal.

A court may issue a COA “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires the

applicant to show “that reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have 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). In other words,

Defendant must show that the district court’s resolution of the constitutional claim was

either “debatable or wrong.” Id. He has not made that showing.

To be convicted and sentenced under § 924(c), a defendant must “during and in

relation to any crime of violence . . . for which the person may be prosecuted in a court of

the United States, use[] or carr[y] a firearm, or . . . , in furtherance of any such crime,

possess[] a firearm” (emphasis added). Section 924(c)(3) defines crime of violence as:

an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

Page 2 Appellate Case: 23-2128 Document: 010111005334 Date Filed: 02/26/2024 Page: 3

(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.

In United States v. Davis, 139 S. Ct. 2319 (2019), however, the United States Supreme

Court held that the language of alternative (B) is unconstitutionally vague. Defendant

therefore argues that his carjacking offense cannot be a crime of violence under

§ 924(c)(3) and his conviction under § 924(c) must be set aside.

But what about alternative (A)? If the elements of carjacking satisfy that

alternative, then carjacking is a crime of violence regardless of the constitutionality of

alternative (B). To prove carjacking, the government must show that the accused “with

the intent to cause death or serious bodily harm takes a motor vehicle that has been

transported, shipped, or received in interstate or foreign commerce from the person or

presence of another by force and violence or by intimidation, or attempts to do so.” 18

U.S.C. § 2119. We think it clear that this offense “has as an element the use, attempted

use, or threatened use of physical force against the person or property of another.” Id.

§ 924(c)(3)(A). Certainly, taking a motor vehicle from another person “by force and

violence” requires the use of physical force against the person. And we agree with the

other circuits to consider the issue that intimidation in the federal carjacking statute

necessarily means threatened use of violent physical force. See United States v. Cruz-

Rivera, 904 F.3d 63, 66 (1st Cir. 2018); United States v. Felder, 993 F.3d 57, 79–80 (2d

Cir. 2021); United States v. Lowe, No. 20-1311, 2020 WL 4582606, at *1 (3d Cir. July 9,

2020) (unpublished); United States v. Evans, 848 F.3d 242, 247–48 (4th Cir. 2017);

United States v. Jones, 854 F.3d 737, 740–41 (5th Cir. 2017); United States v. Jackson,

Page 3 Appellate Case: 23-2128 Document: 010111005334 Date Filed: 02/26/2024 Page: 4

918 F.3d 467, 485–86 (6th Cir. 2019); Estell v. United States, 924 F.3d 1291, 1293 (8th

Cir. 2019); United States v. Gutierrez, 876 F.3d 1254, 1256–57 (9th Cir. 2017); In re

Smith, 829 F.3d 1276, 1280–81 (11th Cir. 2016); cf. United States v. McCranie, 889 F.3d

677, 680–81 (10th Cir. 2018) (bank robbery “by force and violence, or by intimidation,”

18 U.S.C. § 2113(a), is a crime of violence under § 924(c)). No reasonable jurist could

argue that there was error in Defendant’s being convicted under § 924(c).

We DENY Defendant’s request for a COA and dismiss this case. We GRANT

Defendant’s motion to proceed in forma pauperis. 1

Entered for the Court

Harris L Hartz Circuit Judge

1 Judge Rossman concurs in the result. Page 4