FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 1, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-2020 (D.C. Nos. 1:19-CV-00275-JB-CG & THOMAS R. RODELLA, 1:14-CR-02783-JB-CG-1) (D. N.M.) Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, Chief Judge, HOLMES and BACHARACH, Circuit Judges. _________________________________
Thomas R. Rodella, the former sheriff of Rio Arriba County, New Mexico, was
convicted and sentenced to 121 months in prison for using unreasonable force during an
unlawful arrest, a violation of 18 U.S.C. § 242, and for using a firearm during a crime of
violence, a violation of 18 U.S.C. § 924(c). He now appeals from a district court order
that denied his 28 U.S.C. § 2255 motion for sentencing relief. We affirm the district
court’s order insofar as it addresses the burden of proof required to show a sentence was
* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. based on § 924(c)’s invalidated residual clause. We deny a certificate of appealability
(COA) and dismiss this matter to the extent the district court determined that Rodella did
not show he was sentenced under that clause.
BACKGROUND I. The Crime, Trial, and Appeal
On an evening in March 2014, Rodella was a passenger in a Jeep driven by his
son. The two men became involved in an altercation with Michael Tafoya, the driver of
another vehicle. They pursued Tafoya and eventually caught him when his vehicle
“became stuck on [a] metal pole.” United States v. Rodella, 804 F.3d 1317, 1322
(10th Cir. 2015).
Rodella jumped into Tafoya’s front passenger seat, armed with a .38 caliber
revolver. Tafoya grabbed at Rodella’s wrists, pleading with him, “Please don’t kill me.”
Id. (internal quotation marks omitted). “Rodella kept trying to turn the gun towards
Tafoya.” Id.
Rodella’s son opened the driver’s side door of Tafoya’s vehicle and pulled him
out, “thr[owing] him facedown on the ground.” Id. He “told Tafoya to stop struggling
and then said to Tafoya, ‘Don’t you realize he’s the sheriff?’” Id.
Tafoya asked to “see Rodella’s badge in order to confirm that he was the sheriff.”
Id. Rodella asked, “You want to see my badge?” Id. (internal quotation marks omitted).
He “then approached Tafoya while he was still [lying] face down on the ground, grabbed
the back of Tafoya’s hair, and slapped Tafoya across the right cheek with his sheriff’s
badge while saying, ‘Here’s my badge, motherfucker.’” Id. Rodella then “stuff[ed] it in
2 Tafoya’s right eye and slamm[ed] Tafoya’s head into the ground.” Id. (internal quotation
marks omitted).
Sheriff’s deputies arrived and eventually transported Tafoya to the county jail.
“Upon his release from jail, Tafoya contacted the Federal Bureau of Investigation (FBI)
and reported what had happened to him.” Id.
A federal grand jury indicted Rodella for depriving Tafoya of his “constitutional
right to be free of unreasonable force and seizure, in violation of 18 U.S.C. § 242,” and
for using “a dangerous weapon in connection with that offense, in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii).” Id. at 1323. A jury found Rodella guilty on both counts and he was
sentenced in February 2015 to 121-months’ imprisonment. This court affirmed Rodella’s
conviction. See id. at 1338.
II. The § 2255 Case in the District Court
Rodella then filed in the district court a § 2255 motion, arguing, among other
things, that his § 924(c) sentence was based on that statute’s residual clause, which the
Supreme Court invalidated as unconstitutionally vague in United States v. Davis,
139 S. Ct. 2319, 2336 (2019).1 The district court disagreed, ruling that although the
1 The residual clause resides next to the elements clause in § 924(c)(3), which defines a “crime of violence” as 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 [the Elements Clause], 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 [the Residual Clause].
3 record was silent as to whether Rodella was sentenced under the residual clause or the
elements clause, Rodella did not show that the court had more likely than not relied on
the residual clause. The district court reasoned that the law at both the time of sentencing
and the time of the § 2255 motion indicated that § 242 was a divisible statute, permitting
consideration of court records showing that Rodella had used a gun to threaten the use of
violent force, consistent with an elements-clause sentence.
III. The District Court’s Grant of a COA
Rodella sought a COA, “a jurisdictional prerequisite to an appeal from the denial
of an issue raised in a § 2255 motion,” United States v. Gonzalez, 596 F.3d 1228, 1241
(10th Cir. 2010). To obtain a COA, the applicant must make “a substantial showing of
the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which means, for claims
denied on the merits, that “reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484
(2000).
The district court concluded that “jurists of reason would not disagree with its
resolution of Rodella’s constitutional claims because ‘use’ of a firearm is sufficient to
render an offense a crime of violence under current law and under the law at the time of
Rodella’s sentencing.” Aplt. App. at 108; see also id. at 111-12. But the district court
“acknowledge[d] that Rodella would have a much stronger case if the [c]ourt applie[d]
18 U.S.C. § 924(c)(3). Davis’s invalidation of the residual clause “has retroactive effect in cases on collateral review.” United States v. Bowen, 936 F.3d 1091, 1101 (10th Cir. 2019) (internal quotation marks omitted). 4 the might-have-relied-on standard” used by other circuits, rather than the Tenth Circuit’s
“preponderance-of-the-evidence standard.” Id. at 117. This acknowledgement led the
court to grant a COA—albeit reluctantly—reasoning that it was justified “because there is
a [Circuit] split on a [§ 2255 movant’s] burden of proof when arguing that the sentencing
court relied upon an unconstitutional provision during sentencing.” Id.; compare United
States v. Driscoll, 892 F.3d 1127, 1135 (10th Cir. 2018) (holding that “at the merits stage
of a first § 2255 challenge,” the movant “must prove that the sentencing court, more
likely than not, relied on the residual clause to enhance his sentence”), with United States
v. Peppers, 899 F.3d 211, 224 (3d Cir. 2018) (stating that a § 2255 “movant must . . .
show that it is possible he was sentenced under the now-unconstitutional residual clause”
(emphasis added)).
The district court’s reluctance in granting a COA on the burden-of-proof issue
stemmed from its view that, in deciding whether to grant a COA, the focus should be on
whether the court’s “assessment of the constitutional claims,” Slack, 529 U.S. at 484, is
debatable—not whether the legal issue itself is debatable. See Aplt. App. at 117. In other
words, the district court said, the determinative factor for issuing a COA is the
debatability of the district court’s conclusion based on its application of the law. Id.
(citing Hancock v. Trammell, 798 F.3d 1002, 1026 (10th Cir. 2015)). And the law in the
Tenth Circuit on the applicable burden of proof, the district court reiterated, is Driscoll’s
preponderance standard.2
2 The district court’s reasoning finds some support in a decision of the Eleventh Circuit, which succinctly stated that “reasonable jurists would follow 5 Nevertheless, the district court felt obligated to grant a COA because of the
holding of a panel of our court in an unpublished decision, United States v. Crooks,
769 F. App’x 569 (10th Cir. 2019). In Crooks, the panel held that “‘[e]ven if a question
is well settled in our circuit, the [issue] is debatable if another circuit has issued a
conflicting ruling.’” Id. at 572 (quoting Allen v. Ornoski, 435 F.3d 946, 951 (9th Cir.
2006)). Though the district court voiced its disagreement with this holding, it noted that
it “faithfully will follow the Tenth Circuit’s decisions,” and, as the court understood its
duty, that meant that it must follow Crooks’s “lead.” Aplt. App. at 117.
DISCUSSION I. The Burden of Proof
We summarily dispose of the issue on which the district court granted a COA.
This appeal in effect asks us to revisit and overrule our decision in Driscoll, which
established that the operative burden of proof is a preponderance of the evidence, see
Driscoll, 892 F.3d at 1135. However, Driscoll is controlling precedent, and it is well
settled that we are not authorized to overrule such precedent absent clear guidance
authorizing such action from the Supreme Court or our en banc court. See Barnes v.
United States, 776 F.3d 1134, 1147 (10th Cir. 2015). To those bodies, Rodella must seek
recourse, if at all. Therefore, we uphold the district court’s ruling and affirm its judgment
on this burden-of-proof issue.
controlling law,” Lambrix v. Sec’y, Fla. Dep’t of Corrs., 851 F.3d 1158, 1171 (11th Cir. 2017). 6 II. Reliance on the Residual Clause
Notably, Rodella’s arguments on appeal extend beyond the issue on which the
district court granted a COA. Indeed, the bulk of his arguments concern the
constitutional question of whether his § 924(c) sentence was based on that statute’s
invalidated residual clause. Yet, he does not expressly ask for an additional grant of a
COA. The government, however, does not object to his arguments on the ground that
they exceed the bounds of the granted COA; instead, it fully engages with them. At least
under these circumstances, we exercise our discretion to construe Rodella’s notice of
appeal and opening brief as a request for a COA on the constitutional issue. See United
States v. Hong, 671 F.3d 1147, 1148 (10th Cir. 2011). Doing so, we deny Rodella’s
request for a COA and dismiss that portion of this matter for the reasons that follow.
Where, as here, the record is silent as to whether a sentencing court relied on an
invalidated residual clause, a court must examine “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,” given the option of the elements clause. United
States v. Copeland, 921 F.3d 1233, 1242 (10th Cir. 2019) (internal quotation marks
omitted). “[O]ur analysis never progresses beyond th[is] initial, historical evaluation of
the sentencing court’s decision,” United States v. Lewis, 904 F.3d 867, 873 (10th Cir.
2018), unless the movant shows that the sentencing “court would have needed to rely on
7 the residual clause,” United States v. Lozado, 968 F.3d 1145, 1149 (10th Cir. 2020)
(internal quotation marks omitted).3
When Rodella was sentenced in February 2015, a court would have applied the
“categorical approach” to determine whether 18 U.S.C. § 242 qualified as a violent crime
under the elements clause. See United States v. Trent, 767 F.3d 1046, 1051-52 (10th Cir.
2014), abrogated by Mathis v. United States, 136 S. Ct. 2243, 2251 n.1 (2016). Under
that approach, “a conviction qualifies only if all violations of the statute would qualify,
regardless of how the specific offender might have committed it on a particular
occasion.” Id. at 1052 (brackets and internal quotation marks omitted). But if the statute
of conviction was divisible, meaning that “it set[ ] out one or more elements of the
offense in the alternative,” then the court would have engaged in the modified categorical
approach, “examin[ing] certain definitive underlying documents to determine which
alternative the defendant’s conviction satisfied.” Id. (internal quotation marks omitted).4
3 But “if we determine the district court relied on the now-invalidated residual clause, then we engage in a harmless-error analysis in which we ask whether the [sentencing enhancement] is correct under current law.” Lozado, 968 F.3d at 1149 (internal quotation marks omitted). 4 When Rodella was sentenced, we were not concerned with whether the statute’s alternative “terms described different means of committing a single crime or different elements delineating separate crimes.” United States v. Titties, 852 F.3d 1257, 1262 (10th Cir. 2017) (emphases added). That changed in 2016, when “the Supreme Court held in Mathis that the distinction between means and elements is important and that the modified categorical approach is available only when a statute lists alternative elements.” Id. at 1262-63.
8 Relying on Trent, the district court here found that § 242 is divisible because it
“has three separate clauses carrying three separate offenses that can be further parsed into
alternative terms.”5 Aplt. App. at 73. The district court then consulted the verdict forms
and jury instructions, determining that Rodella was subject to § 242’s dangerous-weapon
provision, which prescribes a sentence up to ten years if the “acts [committed to deprive a
person of a right] include the use . . . or threatened use of a dangerous weapon.”
18 U.S.C. § 242 (Second Clause).6 In comparison, the Elements Clause provides that a
5 The three clauses of § 242, broken apart for clarity, are as follows:
[First Clause] Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; [Second Clause] and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; [Third Clause] and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death. 18 U.S.C. § 242. 6 The district court observed that Rodella was also charged under the “bodily injury” provision of 18 U.S.C. § 242 (Second Clause). The jury did not, however, rely on that alternative, agreeing instead beyond a reasonable doubt that Rodella had “used or threatened to use a dangerous weapon.” Aplt. App. at 27. 9 conviction is a “crime of violence” if it “has as an element the use, attempted use, or
threatened use of physical force,” 18 U.S.C. § 924(c)(3)(A), which means “violent force,”
see Curtis Johnson v. United States, 559 U.S. 133, 140 (2010).
To ascertain whether § 242’s dangerous-weapon provision “swe[pt] more broadly”
than § 924(c)(3)’s Elements Clause, thus not “count[ing] as a[ ] . . . predicate” offense, or
whether it either matched that clause or “define[d] the crime more narrowly,” thereby
qualifying as a predicate offense, Descamps v. United States, 570 U.S. 254, 261 (2013),
the district court relied on United States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010),
abrogated in part by Mathis, 136 S. Ct. at 2253-54. Rodella’s disagreement with the
district court’s analysis begins here.
In Ramon Silva, we held that “[t]hreatening or engaging in menacing conduct
toward a victim, with a weapon capable of producing death or great bodily harm,
threatens the use of violent force” under the Elements Clause of the Armed Career
Criminal Act, 18 U.S.C. § 924(e). 608 F.3d at 670 (internal quotation marks omitted).
We noted that this type of conduct threatens the use of violent force in two different
ways: (1) “[t]he conduct could always lead to substantial and violent contact, and thus it
would always include as an element the threatened use of violent force”; and (2) “the
conduct could at least put the victim on notice of the possibility that the weapon will be
used more harshly in the future, thereby constituting a threatened use of force.” Id. at
672 (ellipsis and internal quotation mark omitted).
The district court found Ramon Silva instructive, so it determined that because
“any use of a dangerous weapon under 18 U.S.C. § 242 also threatens the use of violent 10 force,” a conviction under § 242’s dangerous-weapon provision is a § 924(c)(3) Elements
Clause predicate offense. Aplt. App. at 75.
Rodella argues that Ramon Silva was not controlling law because it “focused on
the element of touching the victim and required more than the display of dexterity
handling a weapon,” whereas § 242 does not require touching the victim. Aplt. Opening
Br. at 17 (alterations and internal quotation marks omitted). We conclude that reasonable
jurists would not debate the district court’s reliance on Ramon Silva.
First, Rodella mischaracterizes Ramon Silva. In that case, we considered whether
a conviction under an “‘apprehension-causing’ aggravated assault” statute qualified as a
violent felony, and we took guidance from cases that “analyzed aggravated battery
statutes that criminalized intentional physical contact with a deadly weapon.” 608 F.3d
at 672. We found those cases persuasive despite the differences in physical contact. Id.
We explained that apprehension-causing assault “creates a commensurate threat of
physical force” that could either “always lead to substantial and violent contact” or “at
least put the victim on notice of the possibility that the weapon will be used more harshly
in the future.” Id. (ellipsis and internal quotation marks omitted). And although we said
that there must be “more than the display of dexterity in handling a weapon,” we noted
that a purposeful threat or menacing conduct “toward a victim” would suffice. Id. at 674
(emphasis in original). In short, we agree with the district court that Ramon Silva is
instructive, given that § 242, as relevant here, involves a willful deprivation of rights that
includes the use or threatened use of a dangerous weapon against a victim.
11 Nevertheless, Rodella contends that the word “use” in § 242 somehow indicates
that the offense can be committed merely by possessing a weapon, without any threat of
violent force. The district court rejected this argument, finding that “use” connotes active
employment of a firearm. Indeed, the common definition of “use” is “[t]o employ for the
accomplishment of a purpose.” Use, Black’s Law Dictionary (11th ed. 2019). Further,
the § 924(c) jury instructions in this case explained that a defendant “‘uses’ a firearm
when it (1) is readily accessible and (2) is actively employed during and in relation to the
underlying crime.” Aplee. Supp. App. at 26 (emphasis added). And § 242’s plain terms
require, as relevant here, that the “acts” involving the deprivation of rights “include the
use . . . or threatened use of a dangerous weapon.” 18 U.S.C. § 242. Mere possession of
a dangerous weapon is not consistent with the common definition of “use,” the jury
instructions in this case, or § 242’s language.
Moreover, in an effort to advance his cause, Rodella relies on two unpublished
Tenth Circuit decisions. We put aside the obvious fact that these decisions would not
have been binding on the district court at the time of Rodella’s sentencing. Instead, it
suffices for us to note that Rodella fails to demonstrate that the district court would have
found either decision to be a persuasive guidepost at the time of his sentencing. First,
Rodella argues that the district court should not have relied on Ramon Silva because there
was a more relevant case, United States v. Verbickas, 75 F. App’x 705 (10th Cir. 2003)
(per curiam). There, correctional officers were convicted of violating § 242 by depriving
inmates of their constitutional rights in a manner that resulted in bodily injury. This court
concluded that a § 242 bodily-injury conviction qualified as a “crime of violence” under
12 the Mandatory Detention Act’s Residual Clause because there was “‘a substantial risk
that physical force . . . [was] used in the course of committing the offense.’” Id. at 707
(quoting 18 U.S.C. § 3156(a)(4)(B)). Rodella fails to explain, though, how Verbickas has
any bearing on whether his § 242 use-or-threatened-use-of-a-dangerous-weapon
conviction could have served as a § 924(c) Elements Clause predicate. Verbickas
involved a different predicate offense than the one involved here and would not have
prevented the district court from sentencing Rodella under the Elements Clause.
And, second, Rodella contends that the government should be barred from
claiming that his § 242 conviction could have served as a § 924(c) Elements Clause
predicate. He points out that the government conceded in United States v. Ryle,
778 F. App’x 598, 600 (10th Cir. 2019) (per curiam), that Ryle’s § 242 conviction was
used as a § 924(c)(3) Residual Clause predicate. Ryle’s conviction was based on the
“kidnapping or an attempt to kidnap” provision in § 242’s third clause, see supra note 5,
and the government regularly concedes that kidnapping does not have a physical-force
component. See Aplt. App. at 47. The district court rejected Rodella’s assertion of a bar,
explaining that because Ҥ 242 is a divisible statute, the United States can take a position
that one offense under the statute is a crime of violence under the elements clause and
another offense is a crime of violence under the residual clause.” Aplt. App. at 80. We
conclude that reasonable jurists would not debate the district court’s ruling. Although
Rodella maintains that “[t]he only difference between the cases is the means in which
‘deprivation of rights’ was violated,” Aplt. Opening Br. at 19 (emphasis added), we
reiterate that at the time of Rodella’s sentencing, a statute containing alternative terms
13 was considered divisible “regardless of whether those terms described different means of
committing a single crime or different elements delineating separate crimes,” United
States v. Titties, 852 F.3d 1257, 1262 (10th Cir. 2017) (describing the law in this Circuit
before 2016).
We conclude that reasonable jurists would not debate whether the district court
more likely than not relied on the residual clause in classifying his § 242 offense as a
§ 924(c) crime of violence.
CONCLUSION
We affirm the district court’s denial of § 2255 relief to the extent the court granted
a COA on the requisite burden of proof. We deny a COA and dismiss this matter to the
extent Rodella contends he was sentenced under § 924(c)’s residual clause.
Entered for the Court
Jerome A. Holmes Circuit Judge