FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 9, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2168 (D.C. Nos. 1:16-CV-00734-MCA-CG and PETER ALLEN SARRACINO, 1:95-CR-00210-MCA-3) (D.N.M.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before LUCERO, O’BRIEN, MORITZ, Circuit Judges. _________________________________
Peter Sarracino seeks a certificate of appealability (“COA”) to appeal the
district court’s denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss
the appeal.
I
In 1996, Sarracino was convicted in federal court of kidnapping and second-
degree murder. He was found to be a career offender under U.S.S.G. § 4B1.1 (1995)1
based on the second-degree murder offense and prior convictions for assault with a
* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 All citations to the Guidelines in this order refer to the 1995 version applied at Sarracino’s sentencing. dangerous weapon in federal court and voluntary manslaughter in New Mexico state
court. He received two concurrent life sentences. Sarracino’s subsequent challenges
to his conviction and sentence were unsuccessful.
Following the Supreme Court’s decision in Johnson v. United States, 135 S.
Ct. 2551 (2015), which invalidated the “residual clause” of the Armed Career
Criminal Act (“ACCA”), id. at 2557, we granted Sarracino leave to file a successive
habeas motion. Sarracino argued that his sentence, which was imposed under the
then-mandatory Sentencing Guidelines, violated the Due Process Clause because his
second-degree murder conviction and two predicate offenses could not qualify as
“crimes of violence” without the residual clause. Adopting the recommendation of a
magistrate judge, the district court concluded that, Johnson notwithstanding, all three
crimes qualified as crimes of violence under the “elements clause” of § 4B1.2. The
district court also denied a COA. Sarracino now seeks a COA from this court.
II
Sarracino may not appeal the denial of habeas relief under § 2255 without a
COA. § 2253(c)(1)(B). We will issue a COA only if Sarracino demonstrates “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) (quotations omitted).
Sarracino first argues that the district court should not have considered
whether federal second-degree murder qualifies as a crime of violence because the
2 government failed to brief that issue. However, Rule 4(b) of the Rules Governing
Section 2255 Proceedings “empowers the court to dismiss meritless petitions on its
own without requiring any action by the government.” Hines v. United States, 971
F.2d 506, 509 (10th Cir. 1992). In a § 2255 proceeding, the movant bears the burden
of demonstrating the deprivation of a constitutional right. United States v. Kennedy,
225 F.3d 1187, 1197 n.6 (10th Cir. 2000). Sarracino was thus responsible for
convincing the district court that his second-degree murder conviction was not a
crime of violence, regardless of whether the government responded.
We conclude that the district court appropriately assessed whether Sarracino’s
second-degree murder conviction qualified as a crime of violence under the elements
clause. At the time Sarracino was sentenced, the career offender Guidelines applied
if an adult defendant was convicted of a crime of violence after two prior felony
convictions for a crime of violence. U.S.S.G. § 4B1.1.2 Under the elements clause,
which remains valid following Johnson, see 135 S. Ct. at 2563, the term “crime of
violence” includes any felony offense that “has as an element the use, attempted use,
or threatened use of physical force against the person of another.” U.S.S.G.
§ 4B1.2(1)(i). To determine whether an offense qualifies, we “apply a categorical
2 Although the Supreme Court has concluded that its invalidation of ACCA’s residual clause does not extend to the identically worded residual clause contained in the advisory Guidelines, the Court has not decided whether the same reasoning applies to sentences imposed when the Guidelines were mandatory. See Beckles v. United States, 137 S. Ct. 886, 894 (2017); see also id. at 903 n.4 (Sotomayor, J., concurring) (noting that the majority opinion “leaves open the question whether defendants sentenced to terms of imprisonment” when the Guidelines were mandatory “may mount vagueness attacks on their sentences”). We assume without deciding that such sentences are governed by Johnson. 3 approach that looks only to the words of a statute and judicial interpretations of it,
rather than to the conduct of any particular defendant convicted of that crime.”
United States v. McConnell, 605 F.3d 822, 825 (10th Cir. 2010) (quotations omitted).
Federal second-degree murder is any unlawful killing of a person with malice
aforethought that does not qualify as first-degree murder. United States v. Pearson,
203 F.3d 1243, 1271 (10th Cir. 2000). The malice aforethought element can be
satisfied by proving: “(1) intent-to-kill without the added ingredients of
premeditation and deliberation; (2) intent to do serious bodily injury; (3) a depraved-
heart; or (4) commission of a felony when the crime does not fall under . . . first
degree murder.” Id.
Sarracino argues that this offense does not qualify under the elements clause
because murder can be achieved through the indirect application of force—by, for
example, placing a barrier in front of a car or exposing a victim to hazardous
chemicals. But in United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017), we
concluded that a prior line of cases holding “that indirect force is not an application
of physical force . . . is no longer good law” and thus ACCA’s use of the phrase
“physical force” includes force “applied directly or indirectly.” Id. at 538 (quotations
omitted) (citing United States v. Castleman, 134 S.Ct. 1405, 1414 (2014), and United
States v. Perez-Vargas, 414 F.3d 1282, 1286 (10th Cir. 2005)).
Sarracino also contends that second-degree murder can be committed
recklessly, but this observation does not help him. “[A] statute requiring proof only
that the defendant acted willfully and with reckless disregard for the risk posed by
4 that act to another person may categorically involve the use of physical force.”
United States v.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 9, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2168 (D.C. Nos. 1:16-CV-00734-MCA-CG and PETER ALLEN SARRACINO, 1:95-CR-00210-MCA-3) (D.N.M.) Defendant - Appellant. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before LUCERO, O’BRIEN, MORITZ, Circuit Judges. _________________________________
Peter Sarracino seeks a certificate of appealability (“COA”) to appeal the
district court’s denial of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss
the appeal.
I
In 1996, Sarracino was convicted in federal court of kidnapping and second-
degree murder. He was found to be a career offender under U.S.S.G. § 4B1.1 (1995)1
based on the second-degree murder offense and prior convictions for assault with a
* 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. 1 All citations to the Guidelines in this order refer to the 1995 version applied at Sarracino’s sentencing. dangerous weapon in federal court and voluntary manslaughter in New Mexico state
court. He received two concurrent life sentences. Sarracino’s subsequent challenges
to his conviction and sentence were unsuccessful.
Following the Supreme Court’s decision in Johnson v. United States, 135 S.
Ct. 2551 (2015), which invalidated the “residual clause” of the Armed Career
Criminal Act (“ACCA”), id. at 2557, we granted Sarracino leave to file a successive
habeas motion. Sarracino argued that his sentence, which was imposed under the
then-mandatory Sentencing Guidelines, violated the Due Process Clause because his
second-degree murder conviction and two predicate offenses could not qualify as
“crimes of violence” without the residual clause. Adopting the recommendation of a
magistrate judge, the district court concluded that, Johnson notwithstanding, all three
crimes qualified as crimes of violence under the “elements clause” of § 4B1.2. The
district court also denied a COA. Sarracino now seeks a COA from this court.
II
Sarracino may not appeal the denial of habeas relief under § 2255 without a
COA. § 2253(c)(1)(B). We will issue a COA only if Sarracino demonstrates “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) (quotations omitted).
Sarracino first argues that the district court should not have considered
whether federal second-degree murder qualifies as a crime of violence because the
2 government failed to brief that issue. However, Rule 4(b) of the Rules Governing
Section 2255 Proceedings “empowers the court to dismiss meritless petitions on its
own without requiring any action by the government.” Hines v. United States, 971
F.2d 506, 509 (10th Cir. 1992). In a § 2255 proceeding, the movant bears the burden
of demonstrating the deprivation of a constitutional right. United States v. Kennedy,
225 F.3d 1187, 1197 n.6 (10th Cir. 2000). Sarracino was thus responsible for
convincing the district court that his second-degree murder conviction was not a
crime of violence, regardless of whether the government responded.
We conclude that the district court appropriately assessed whether Sarracino’s
second-degree murder conviction qualified as a crime of violence under the elements
clause. At the time Sarracino was sentenced, the career offender Guidelines applied
if an adult defendant was convicted of a crime of violence after two prior felony
convictions for a crime of violence. U.S.S.G. § 4B1.1.2 Under the elements clause,
which remains valid following Johnson, see 135 S. Ct. at 2563, the term “crime of
violence” includes any felony offense that “has as an element the use, attempted use,
or threatened use of physical force against the person of another.” U.S.S.G.
§ 4B1.2(1)(i). To determine whether an offense qualifies, we “apply a categorical
2 Although the Supreme Court has concluded that its invalidation of ACCA’s residual clause does not extend to the identically worded residual clause contained in the advisory Guidelines, the Court has not decided whether the same reasoning applies to sentences imposed when the Guidelines were mandatory. See Beckles v. United States, 137 S. Ct. 886, 894 (2017); see also id. at 903 n.4 (Sotomayor, J., concurring) (noting that the majority opinion “leaves open the question whether defendants sentenced to terms of imprisonment” when the Guidelines were mandatory “may mount vagueness attacks on their sentences”). We assume without deciding that such sentences are governed by Johnson. 3 approach that looks only to the words of a statute and judicial interpretations of it,
rather than to the conduct of any particular defendant convicted of that crime.”
United States v. McConnell, 605 F.3d 822, 825 (10th Cir. 2010) (quotations omitted).
Federal second-degree murder is any unlawful killing of a person with malice
aforethought that does not qualify as first-degree murder. United States v. Pearson,
203 F.3d 1243, 1271 (10th Cir. 2000). The malice aforethought element can be
satisfied by proving: “(1) intent-to-kill without the added ingredients of
premeditation and deliberation; (2) intent to do serious bodily injury; (3) a depraved-
heart; or (4) commission of a felony when the crime does not fall under . . . first
degree murder.” Id.
Sarracino argues that this offense does not qualify under the elements clause
because murder can be achieved through the indirect application of force—by, for
example, placing a barrier in front of a car or exposing a victim to hazardous
chemicals. But in United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017), we
concluded that a prior line of cases holding “that indirect force is not an application
of physical force . . . is no longer good law” and thus ACCA’s use of the phrase
“physical force” includes force “applied directly or indirectly.” Id. at 538 (quotations
omitted) (citing United States v. Castleman, 134 S.Ct. 1405, 1414 (2014), and United
States v. Perez-Vargas, 414 F.3d 1282, 1286 (10th Cir. 2005)).
Sarracino also contends that second-degree murder can be committed
recklessly, but this observation does not help him. “[A] statute requiring proof only
that the defendant acted willfully and with reckless disregard for the risk posed by
4 that act to another person may categorically involve the use of physical force.”
United States v. Pam, 867 F.3d 1191, 1208 (10th Cir. 2017). Although we previously
held that reckless offenses did not qualify as crimes of violence under ACCA, we
have since concluded that the Supreme Court effectively overruled this holding. Id.
at 1207 (citing Voisine v. United States, 136 S. Ct. 2272, 2016), and United States v.
Duran, 696 F.3d 1089, 1095 (10th Cir. 2012)).3
Finally, Sarracino challenges the district court’s conclusion that his New
Mexico manslaughter conviction qualifies as a crime of violence on the same bases.
He again argues that the crime can be committed through reckless conduct or through
indirect means. We reject these contentions for the same reasons noted above.4
III
For the foregoing reasons, a COA is DENIED and the appeal is DISMISSED.
Entered for the Court
Carlos F. Lucero Circuit Judge
3 Both Ontiveros and Pam concerned the elements clause of ACCA rather than the mandatory Guidelines. But the two clauses are identical, and Sarracino does not provide any basis for treating them differently. 4 Although he argued the issue below, Sarracino does not challenge the district court’s conclusion that his federal assault with a dangerous weapon conviction qualifies as a crime of violence. 5