United States v. Velasquez

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 21, 2020
• Docket: 17-2150
• Status: Unpublished

Opinion

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* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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

2 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. 3 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,

4 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

5 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

6 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.

7 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

8 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