United States v. Harris

• Decision Date: 04 January 2017
• Docket Number: No. 16-1237,16-1237
• Citation: 844 F.3d 1260
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Michael Kevin HARRIS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

844 F.3d 1260

UNITED STATES of America, Plaintiff–Appellee,

v.Michael Kevin HARRIS, Defendant–Appellant.

No. 16-1237

United States Court of Appeals, Tenth Circuit.

Filed January 4, 2017

Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs) Office of the Federal Public Defender, Denver, Colorado, for Appellant.

J. Bishop Grewell, Assistant U.S. Attorney (Bob Troyer, Acting U.S. Attorney, with him on the brief) Office of the U.S. Attorney for the District of Colorado, Denver, Colorado, for Appellee.

Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.

TYMKOVICH, Chief Judge.

The issue in this appeal questions what should be the obvious: That statutory robbery is a "violent felony" under the Armed Career Criminal Act (ACCA). But in the last twelve months, eleven circuit-level decisions have reached varying results on this very narrow question—in examining various state statutes, five courts have found no violent felony and six have found a violent felony. So the obvious may not be so plain. Upon independent examination of the Colorado robbery statute here, however, we believe Colorado robbery qualifies as a violent felony because it has as an element the use or threatened use of "physical force" against another person that is capable of causing physical pain or injury.

The ACCA requires a fifteen-year mandatory minimum sentence when the defendant has three or more qualifying "violent felonies." 18 U.S.C. § 924(e)(1). The ACCA's scheme provides three ways the government can prove a prior conviction qualifies: the elements clause, § 924(e)(2)(B)(i) ; the enumerated-offenses clause, § 924(e)(2)(B)(ii) ; and the residual clause, § 924(e)(2)(B)(ii). In June 2015, however, the Supreme Court held the residual clause to be unconstitutionally vague, Johnson v. United States (Johnson II) , –––U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015), leaving only the elements and the enumerated-offenses clauses. Because statutory robbery is not one of the enumerated offenses in § 924(e)(2)(B)(ii), this appeal involves the elements clause.

After the Supreme Court held its pronouncement in Johnson II must be applied retroactively to cases on collateral review, Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), Michael Harris moved to vacate his sentence under 28 U.S.C. § 2255. He argued because his 1979 Colorado robbery conviction no longer qualified under the residual clause, he did not have the requisite number of qualifying violent felony convictions. The government conceded that the applicability of the § 924(e)(1) enhancement turned on whether Harris's Colorado robbery conviction satisfied the elements clause.

In an expedited decision, the district court denied Harris § 2255 relief, finding Colorado's robbery statute satisfied the elements clause because it has as an element the use or threatened use of "physical force" against another person. We agree. Exercising jurisdiction under 28 U.S.C. §§ 1291, 2255(d), we affirm.

I. Background

In 2004, Michael Harris pleaded guilty to possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). The maximum sentence for a felon-in-possession conviction is typically ten years. § 924(a)(2). But because the sentencing court found Harris had three qualifying "violent felonies" or "serious drug offenses," as defined by the ACCA, the court applied the § 924(e)(1) enhancement and sentenced Harris to the fifteen-year mandatory minimum. The sentencing court relied on the following convictions: (1) robbery (Colorado, 1979); (2) second-degree burglary (Colorado, 1983); (3) distribution of a controlled substance (Colorado, 1998); and (4) distribution of a controlled substance (Colorado, 1998). This court affirmed Harris's fifteen-year sentence on direct appeal. United States v. Harris , 447 F.3d 1300 (10th Cir. 2006).

Fast forward eleven years from the date of conviction. In June 2015, the Supreme Court in Johnson II struck the residual clause in § 924(e)(2)(B)(ii) on vagueness grounds. 135 S.Ct. at 2563. Because Johnson II eliminated the broader of the clauses defining violent felony in § 924(e)(2)(B) —i.e. , the residual clause—the result has been that prior residual-clause convictions must now stand or fall based on an analysis under the elements clause. And that is exactly what is at issue in this appeal.

In response to Johnson II and Welch Harris moved to vacate his sentence under 28 U.S.C. § 2255. He argued that without the residual clause, he no longer had three qualifying violent felony convictions. The government conceded Harris's second-degree burglary conviction no longer qualified as a violent felony, but maintained his robbery conviction remained a violent felony under the elements clause in § 924(e)(2)(B)(i). Thus, the parties agreed that whether Harris had a third qualifying conviction was based on whether Colorado's robbery statute satisfies the elements clause, meaning whether it has as an element the use or threatened use of physical force against another person. The district court sided with the government and found that "robbery in Colorado—as that crime has been interpreted by Colorado courts—is a ‘violent felony’ under the ACCA because it has as an element the use, attempted use, or threatened [use] of physical force against the person of another." But other district court judges have found the opposite, see United States v. Crump , No. 15-CR-123 (D. Colo. Dec. 2, 2015) (oral ruling); United States v. Estes , No. 05-CR-187 (D. Colo. Sept. 15, 2016). We now resolve the conflict.

II. Analysis

A motion to vacate a sentence under 28 U.S.C. § 2255"is generally the exclusive remedy for a federal prisoner seeking to ‘attack[ ] the legality of detention.’ " Brace v. United States , 634 F.3d 1167, 1169 (10th Cir. 2011). "[W]e review the district court's legal rulings on a § 2255 motion de novo and its findings of fact for clear error." United States v. Pearce , 146 F.3d 771, 774 (10th Cir. 1998) (citing United States v. Cox , 83 F.3d 336, 338 (10th Cir. 1996) ).

Under the ACCA, a person who violates 18 U.S.C. § 922(g)(1) is subject to an enhanced sentence if he has three or more prior convictions for a "violent felony." § 924(e)(1). A violent felony is defined as "any crime punishable by imprisonment for a term exceeding one year" that:

[1] Elements Clause: "has as an element the use, attempted use, or threatened use of physical force against the person of another," § 924(e)(2)(B)(i) ;

[2] Enumerated-Offenses Clause: is a categorical match to the generic offenses of "burglary, arson, or extortion," § 924(e)(2)(B)(ii) ; or

[3] Residual Clause: "otherwise involves conduct that presents a serious potential risk of physical injury to another," § 924(e)(2)(B)(ii).

In Johnson II , the Supreme Court struck the residual clause as unconstitutionally vague. 135 S.Ct. at 2563. Writing for the Court, Justice Scalia explained, the Court had decided five residual-clause cases in eight years with varying results. Id . at 2556 (collecting cases). "We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." Id . at 2557. As a result, if a prior conviction is not one of the enumerated offenses in § 924(e)(2)(B)(ii), the focus turns to the elements clause in § 924(e)(2)(B)(i).

To determine if a prior conviction qualifies as a violent felony under the ACCA, we apply the categorical approach, focusing on the elements of the crime of conviction, not the underlying facts. Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). The question we must answer then is whether Colorado's robbery statute "has as an element the use, attempted use, or threatened use of physical force against the person of another." See § 924(e)(2)(B)(i). This inquiry requires application of both federal law and Colorado state law. Federal law defines the meaning of the phrase "use, attempted use, or threatened use of physical force" in § 924(e)(2)(B)(i). Johnson v. United States (Johnson I) , 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ("The meaning of ‘physical force’ in § 924(e)(2)(B)(i) is a question of federal law...."); Leocal v. Ashcroft , 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (applying federal law to define "use"). And state law defines the substantive elements of the crime of conviction. Johnson I , 559 U.S. at 138, 130 S.Ct. 1265 ("We are ... bound by the Florida Supreme Court's interpretation of state law, including its determination of the elements of [the crime of conviction].").

Harris limits his challenge to the elements clause's "physical force" component. A two-step inquiry resolves whether Colorado's robbery statute requires physical force as that term is used in the ACCA: we must identify the minimum "force" required by Colorado law for the crime of robbery and then determine if that force categorically fits the definition of physical force. See Moncrieffe v. Holder , ––– U.S. ––––, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013) ("Because we examine what the state conviction necessarily involved ... we must presume that the conviction ‘rested upon [nothing] more than the least of th[e] acts' criminalized, and then determine whether even those acts are encompassed by the generic federal offense." (alterations in original) (emphasis added)). The Supreme Court has reminded us that in construing the minimum culpable conduct, such conduct only includes that in which there is a "realistic probability, not a theoretical possibility" the state statute would apply. Id . at 1685 (citation omitted). Decisions from the state supreme court best indicate a "realistic probability," supplemented by decisions from the intermediate-appellate courts.

Before discussing Colorado courts' construction of its robbery statute, we first consider how the...