MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Defendant's Motion for Rehearing, filed August 17, 2020 (CIV. Doc. 41); (ii) the Defendant's Motion for Rehearing Addendum, filed August 17, 2020 (CIV. Doc. 40)("Addendum to Motion for Rehearing I"); (iii) the Defendant's Motion for Addendum to Motion for Rehearing, filed August 25, 2020 (CIV. Doc. 42)("Addendum to Motion for Rehearing II"); (iv) the Defendant's Motion to Alter or Amend the Judgment and, in the Alternative, for a Certificate of Appealability, filed August 25, 2020 (CIV. Doc. 43)("Motion to Reconsider"); (v) the Defendant's Addendum to Motion for Rehearing 2255, filed August 31, 2020 (CIV. Doc. 49)("Addendum to Motion for Rehearing III"); and (vi) the Defendant's Addendum to Motion for Rehearing Pursuant to Rule 59(e), filed August 31, 2020 (CIV. Doc. 50)("Addendum to Motion for Rehearing IV").1 The Court held a hearing on October 21, 2020. See Notice of Hearing, filed August 28, 2020 (CIV. Doc. 46)(text only). The Defendant Sebastian Leigh Eccleston's asks the Court to reconsider its Memorandum Opinion and Order, No. CIV 19-1201 JB\CG, 2020 WL 4336361, filed July 28, 2020 (CIV. Doc. 33)(Browning, J.)("MOO"), orin the alternative, to grant a Certificate of Appealability. See Motion to Reconsider at 1. The primary issues are: (i) whether the Court erred in placing the burden of proof on Eccleston, because the law regarding the residual clauses in 18 U.S.C. § 924(e) and 18 U.S.C. § 924(c) is not interchangeable; (ii) whether the Court erred in finding the Hobbs Act, 18 U.S.C. § 1951(a), is divisible and therefore subject to the modified categorical approach, because § 1951(a) is made up of means, not elements; (iii) whether attempted Hobbs Act robbery is a crime of violence under 18 U.S.C. § 924(c)(A)(3)'s requirement that it have "an element" of "use, attempted use, or threatened use of physical force against the person or property of another"; (iv) whether the Court erred when it considered the factual basis for Eccleston's sentence to determine that Eccleston was convicted of substantive Hobbs Act robbery, 18 U.S.C. § § 1951(a); and (v) whether, in the alternative, the Court should grant Eccleston's request for a Certificate of Appealability, because Eccleston has made a substantial showing that jurists of reason could disagree with the Court's resolution of Eccleston's constitutional claims. See Motion to Reconsider at 6-31. The Court concludes that (i) it did not err in placing the burden of proof on Eccleston to prove that it is more likely than not that his 18 U.S.C. § 924(c) conviction rests on an invalid predicate; (ii) the Hobbs Act, 18 U.S.C. § 1951(a), is comprised of elements, meaning it is divisible, and therefore subject to the modified categorical approach; (iii) even if attempted Hobbs Act robbery is not a crime of violence, Eccleston was convicted of substantive Hobbs Act robbery; (iv) the Court did not err when it considered the factual basis for Eccleston's sentence to determine that Eccleston was convicted of substantive Hobbs Act robbery; and (v) the Court will not grant a Certificate of Appeal, because jurists of reason would not disagree with the Court's resolution of Eccleston's constitutional claims. Accordingly, the Court denies Eccleston's (i) Motion for Rehearing; (ii) requests in the Addendum to Motion for Rehearing I; (iii) requests in the Addendum to Motion forRehearing II; (iv) Motion to Reconsider; (v) requests in the Addendum to Motion for Rehearing III; (vi) requests in the Addendum to Motion for Rehearing IV; and (vii) request for a certificate of appealability.
The Court previously has stated the factual background in its MOO, 2020 WL 4336361. The Court below gives that recitation:
The Court takes its facts from the Presentence Report. On December 15, 1994, Eccleston and his codefendant, Ronald Marvin Martinez, were in a Motel 6 Parking lot in Albuquerque, New Mexico, when they confronted Robert Boyle as he was exiting his car. See PSR ¶ 9, at 3. Martinez approached Boyle, "racked the action of a shotgun, pointed the weapon at the victim's head and ordered him out of the vehicle." PSR ¶ 9, at 3. Boyle heard another sound towards the car's rear that he "associated with a firearm being chambered" and, when Boyle turned, he saw Eccleston pointing a second firearm at him. PSR ¶ 9, at 3. After Boyle fled, Eccleston and Martinez both got into Boyle's car and drove away. See PSR ¶ 9, at 3.
Shortly thereafter, Albuquerque Police Department ("APD") officers responded to an armed-robbery call at another Albuquerque motel. See PSR ¶ 10, at 3. The victims, David Henkemeyer and Karen Kuepers, told police that they were in the motel's parking lot when a white car with two passengers approached them and demanded their money. See PSR ¶ 10, at 3. Henkemeyer later identified Eccleston and said that Eccleston held and pointed a firearm at Kuepers as Eccleston took her purse, and at Henkemeyer as Eccleston took his wallet. See PSR ¶ 10, at 4.
While APD officers were taking the armed robbery report, Bernalillo County Sheriff's Office ("BCSO") deputies attempted to stop a vehicle that matched Henkemeyer's description of Martinez and Eccleston's vehicle. See PSR ¶ 11, at 4. After a "high speed pursuit," the vehicle crashed, and the occupants fled. PSR ¶ 11, at 4. BCSO deputies apprehended Martinez, but Eccleston escaped. See PSR ¶ 11, at 4. APD officers took all three robbery victims to the crash site, where the victims "positively identified the vehicle" and found some of their property in the vehicle. PSR ¶ 11, at 4. BCSO deputies found a shotgun and eight twelve-gauge shotgun rounds in the crashed vehicle. See PSR ¶ 12, at 4. Boyle also positively identified Martinez. See PSR ¶ 12, at 4. Federal agents later interviewed the sales manager for the dealership that sold the car that Martinez and Eccleston stole, and the sales manager confirmed that the vehicle was not manufactured in the State of New Mexico. See PSR ¶ 15, at 5.
A federal Grand Jury issued a ten-count Second Superseding Indictment on July 6, 1995. See Second Superseding Indictment at 1, filed July 7, 1995 (Cr. Doc. 34)("Indictment"). The Indictment charges Eccleston with: (i) carjacking in violation of 18 U.S.C. § 2119(1), and aiding and abetting carjacking in violation of 18 U.S.C. § 2; (ii) three counts of using and carrying a firearm during the carjacking in violation of 18 U.S.C. § 924(c); (iii) five counts of interference with commerce by threats of violence against Boyle in violation of 18 U.S.C. 1951(a), and aiding and abetting the interference in violation of 18 U.S.C. § 2; and (iv) against Martinez only, possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5485(a)(2). See PSR ¶ 3, at 2.
On May 3, 1996, Eccleston pled guilty to four counts: (i) carjacking in violation of 18 U.S.C. § 2119(1), and aiding and abetting in violation of 18 U.S.C. § 2; (ii) "us[ing and carry[ing] a firearm . . . during and in relation to a crime of violence," carjacking, in violation of 18 U.S.C. §§ 924(c) and 2119(1), and aiding and abetting in violation of 18 U.S.C. § 2; (iii) "obstruct[ing], delay[ing] and affect[ing], and attempt[ing] and conspir[ing] to obstruct, delay and affect commerce . . . by robbery . . . in that [Eccleston] did unlawfully take and obtain personal property" from Karen Kuepers "by means of actual and threatened violence, and fear of injury, in violation of 18 U.S.C. 1951(a) and aiding and abetting in violation of 18 U.S.C. 2"; and (iv) "us[ing[ and carry[ing] a firearm . . . during and in relation to a crime of violence," in violation of 18 U.S.C. §§ 1951(a) and 924(c) and aiding and abetting in violation of 18 U.S.C. § 2. Plea Agreement ¶ 7, at 4-5, filed May 3, 1996 (Cr. Doc. 70). See PSR ¶ 3, at 2.
MOO, 2020 WL 4336361, at *1-3.
The Court previously has summarized most of the procedural history in its MOO. See 2020 WL 4336361. The Court below gives that recitation. The Court also includes footnotes from the MOO. The MOO summarizes:
After sentencing, Eccleston extensively litigated this case in both direct and collateral appeals.2 The Court summarizes those aspects of this case's proceduralhistory that are relevant to Eccleston's Motion. The PSR, his sentencing, and the United States Court of Appeals for the Tenth Circuit's review of Eccleston's sentence all bear on the issue at hand: whether, in light of Davis v. United States, Eccleston's Count V Hobbs Act conviction is a crime a violence such that Eccleston's conviction and sentence for Count VI is constitutional.
1. The Plea Hearing.
On May 3, 1996, the Honorable LeRoy Hansen, then-United States District Judge for the United States District Court for the District of New Mexico, accepted Eccleston's Plea Agreement. See Transcript of Proceedings at 1:1 (taken May 3, 1996), filed September 29, 1996 (Cr. Doc. 279)("Plea Tr."). After ensuring that Eccleston reviewed and understood the Plea Agreement, Judge Hansen stated:
[T]he government has an obligation to prove . . . that on or about December 15th, 1994, in Albuquerque, . . . New Mexico, that you . . . did unlawfully, in Count V, obstruct, delay, and affect and attempt and conspire to delay, and affect commerce as that term is defined in 18 U.S. Code, Section 1951, and the movement of articles and commodities in such commerce by robbery, as that term is defined therein that you did unlawfully take and obtain personal property consisting of jewelry, personal checks, a purse, a wallet, a camera, and credit cards from the person and in the presence of Karen Kuepers against her will by means of actual and threatened force, violence, and fear of injury, immediate and
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