UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________ UNITED STATES OF AMERICA,
Plaintiff

- Appellee,

v. SKYLER LEE PASLEY,
Defendant

- Appellant. No. 17

- 6033 (D.C. Nos. 5:16

- CV

- 00553

- R & 5:08

- CR

- 00289

- R

- 1) (W.D. Okla.)

_________________________________ ORDER DENYING CERTIFICATE OF APPEALABILITY ∗

_________________________________ Before LUCERO , HARTZ , and MORITZ , Circuit Judges.

_________________________________ Skyler Lee Pasley seeks a certificate of appealability (“COA”) to appeal the
district court’s denial of his 28 U.S.C. § 2255 motion. He claims his convictio n under
18 U.S.C. § 924(c) for brandishing a firearm during a crime of violence

— a Hobbs Act robbery

— is unconstitutional in light of the Supreme Court’s decision in Johnson v.
United States , 135 S. Ct. 2551 (2015)

. We de ny a COA and dismiss the appeal.
I.
In 2009 Pasley pled guilty, among other things, to Hobbs Act robbery in violation
of 18 U.S.C. § 1951(a) and brandishing a firearm during this crime in violation of § 924(c)(1)(A)

. Section 924(c)(1)(A) provides as relevant here that

∗ This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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

. FILED United States Court of Appeals Tenth Circuit 

### July 16, 2018
Elisabeth A. Shumaker Clerk of Court2 a ny person who, during and in relation to any crime of violence

. . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence

. . . -- (ii) if the firearm is brandished, be sentenced to a term of impris onment of not less than 7 years . . . . § 924(c)(1)(A) (emphasis added). A “crime of violence” for purposes of this provision means an offense that is a felony and (A) h as as an element the use, attempted use, or threatened use of physical force against the person or property of another, 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. § 924 (c)(3)

. The crime of violence underlying Pasley’s conviction under § 924(c)(1)(A) was the Hobbs Act robbery.
In Johnson , the Supreme Court struck down the residual clause in the Armed
Career Criminal Act (ACCA), § 92 4(e)(2 )(B) , as unconstitutionally vague. 135 S. Ct.

at 2563

. That clause defined a “violent felony” as a crime that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2 )(B)(ii)

. The Supreme Court later made its ruling in Johnson retroactive to
cases on collateral review. S ee Welch v. United States , 136 S. Ct. 1257, 1265 (2016)

. Pasley filed a § 2255 motion to vacate his sentence within one year of Johnson . In his motion, he ar gued that his conviction under § 924(c) should be vacated because the
definition of “crime of violence” stated in § 924(c)(3)(B) was unconstitutional under
Johnson and that his conviction for Hobbs Act robbery did not qualify as a “crime of3 violence” under § 924(c)(3)(A)’s remaining “elements” clause or “force” clause. The district court denied Pasley’s motion , holding it was immaterial whether Johnson invalidated § 924(c)(3)(B) because Pasley’s Hobbs Act robbery conviction qualified as a
crim e of violence under the elements clause in § 924(c)(3)(A). 1 It also denied a COA. Pasley now see ks a COA to allow him to appeal the district court’s decision

. II
To obtain a COA from this court , Pasley must make “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2) , by demonstrating that “jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Buck v. Davis , 137 S. Ct. 759, 773 (2017) (quotation omitted). We decide whether Pasley has made this showing by “a preliminary, though not definitive,
consideration” of the mer its of the issues on which he seeks a COA. Miller

- El v.
Cockrell , 537 U.S. 322, 338 (2003)

. In his applicati on for a COA, Pasley re news his arguments that his § 924(c)
conviction should be vacated because : (1) § 924(c)(3)(B) is unconstitutionally vague;

1 Based on its rulin g that P asley’s conviction did not rely on the residual clause in § 924(c)(3)(B) , t he district court also held that Johnson and Welch did not affect Pasley’s conv iction and sentence and that Pas ley therefore could not rely on § 2255(f)(3) to establish that his § 2255 motion was timely. See 28 U.S.C. § 2255(f)(3) (allowing a § 2255 motion to be brought within one year of the date on which the right asserted was initially recognized by the United States Supreme Court if it was made retroactively applicable to cases on collateral review )

. I n light of our determination that Pasley is not entitled to a COA to appeal the district court’s underlying decision that his Hobbs Act robbery qualified as a crime of violence under § 924(c) (3)(A) , we need not address the district court’s timeliness ruling

.4 and (2) a Hobbs Act robbery is not a crime of violence under § 924(c)(3) (A) . We have recently addressed both of these issues

. In United States v. Salas , 889 F.3d 681, 684

- 86 (10th Cir. 2018) , we held that § 924(c)(3)(B)’s definition of a “crime of violence” is unconstitutional under Sessions v. Dimaya , 138 S. Ct. 1204 (2018) . In Dimaya , the Supreme Court extended Johnson ’s

re asoning to hold that the identical definition of “crime of violence” in 18 U.S.C. § 16(b)
was unconstitutional ly vague

. 138 S. Ct. at 1213

- 16. As a result, Pasley is correct that his Hobbs Act robbery conviction does not qualify as a crime of violence under § 924(c)
unless it does so under the elements clause in § 924(c)(3)(A). W e recently resolved this question in United States v. Melgar

- Cabrera , 892 F.3d 1053 (10th Cir. 2018) , holding that Hobbs Act robbery is categoricall y a crime of violence under § 924(c)(3)(A). Id.

at 1064

- 66

. In Melg ar
- Cabrera , w e specifically rejected the contention that committing Ho bbs
Act robbery does not necessarily involve the “use of physical force” as required by § 924(c)(3)(A) because it can be accomplished without the direct application of force

. See id. at 1065

- 66

. We based this conclusion on United States v. Ontiveros , 875 F.3d 533 (10th Cir. 2017) , in which we rejected a similar argument and held that the

tw o cases on which Pasley relies, United States v. Perez

- Vargas , 414 F.3d 1282 (10th Cir. 2005) and United States v. Rodriguez

- Enriquez , 518 F.3d 1191 (10th Cir. 2008) , are no longer good law. Se e Ontiveros , 875 F.3d at 536

- 38

. Accordingly, in light of Melgar

- Cabrera and our earlier decision in Ontiveros , reasonable jurists would not debate that Pasley’s Hobbs Act robbery conviction was a5 crime of violence under § 924(c)(3)(A)’s elements clause. Nor would they debate that
his Hobbs Act robbery conviction supported his conviction under § 924(c) for brandishing a gun during a crime of violence and the district court’s denial of his § 2255
motion on this basis

. III For the foregoing reasons, we DENY a COA and DISMISS the appeal.

Entered for the Court

Carlos F. Lucero Circuit Judge