UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PETER ALLEN SARRACINO, Defendant - Appellant. No. 17-2168 (D.C. Nos. 1:16-CV-00734-MCA-CG and 1:95-CR-00210-MCA-3) (D.N.M.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before LUCERO , O’BRIEN , MORITZ , Circuit Judges.

________________ _________________ Peter Sarracino seeks a cert ificate 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 fe deral court of kidna pping and seconddegree murder. He was found to be a car eer offender under U.S. S.G. § 4B1.1 (1995) 1 based on the second-degree murder offense a nd prior convictions for assault with a

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel.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 Guide lines in this order refer to the 1995 version applied at Sarracino’s sentencing. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 dangerous weapon in federal court and voluntary manslaught er in New Mexico state court. He received two c oncurrent life sentences. Sa rracino’s subsequent challenges to his conviction and sent ence were unsuccessful. Following the Supreme Court’s decisi on in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated the “r esidual 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, viol ated the Due Process Clause because his second-degree murder convicti on and two predicate offens es could not qualify as “crimes of violence” without the residual clause. Adopti ng the recommendation of a magistrate judge, the district court concluded that, Johns on notwithstanding, all three crimes qualified as crimes of violence under the “elements clause” of § 4B1.2. The district court also denied a COA. Sa rracino 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 matt er, agree that) the petition should have been resolved in a different manner or that the is sues presented were adequate to deserve encouragement to pro ceed 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 qualif ies as a crime of violence because the3 government failed to brief th at issue. However, Rule 4(b) of the Rules Governing Section 2255 Proceedings “em powers the court to dismis s meritless petitions on its own without requiring any action by the gove rnment.” Hines v. United States, 971 F.2d 506, 509 (10t h Cir. 1992). In a § 2255 proceedi ng, the movant bears the burden of demonstrating the depriva tion of a constitutional right. United States v. Kennedy, 225 F.3d 1187, 1197 n.6 (10t h Cir. 2000). Sarracino wa s thus responsible for convincing the district court that his second-degree murder conviction was not a crime of violence, regardless of wh ether the government responded. We conclude that the dist rict court appropriately as sessed whether Sarracino’s second-degree murder convicti on qualified as a crime of violence under the elements clause. At the time Sarracino was sentence d, the career offender Guidelines applied if an adult defendant was convicted of a crime of vi olence after two prior felony convictions for a crime of vi olence. U.S.S.G. § 4B1.1. 2 Under the elements clause, which remains valid following Johnson, s ee 135 S. Ct. at 2563, the term “crime of violence” includes any felony offe nse that “has as an elemen t the use, at tempted use, or threatened use of physical for ce 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 concl uded 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 th e question whether defendants sentenced to terms of impr isonment” when the Guidelines were mandatory “may mount vagueness attacks on their sentences”). We assume without deciding that such sentences are governed by Johnson.4 approach that looks only to the words of a statute and judicial interpretations of it, rather than to the conduct of any particul ar defendant convicted of that crime.” United States v. McConnell, 605 F.3d 822, 82 5 (10th Cir. 2010) (quot ations omitted). Federal second-degree murder is any unl awful killing of a person with malice aforethought that does not quali fy as first-degree murder. United States v. Pearson, 203 F.3d 1243, 1271 (10th Ci r. 2000). The malice afor ethought 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 depravedheart; or (4) commission of a felony wh en 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 th e 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. Castlema n, 134 S.Ct. 1405, 14 14 (2014), and United States v. Perez-Vargas, 414 F.3d 1282, 1286 (10th Cir. 2005)). Sarracino also contends that sec ond-degree murder can be committed recklessly, but this observation does not he lp him. “[A] stat ute requiring proof only that the defendant acted willfully and with reckless disregard for the risk posed by5 that act to another person may categorically involve th e 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 qualif y as crimes of violence under ACCA, we have since concluded that the Supreme Cour t 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 distri ct 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 co mmitted through reckle ss conduct or through indirect means. We reje ct these contentions for th e same reasons noted above. 4
III For the foregoing reasons, a COA is DENIED and the appeal is DISMISSED

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Entered for the Court

Carlos F. Lucero Circuit Judge

3 Both Ontiveros and Pam concerned the el ements clause of ACCA rather than the mandatory Guidelines. But the two clauses are iden tical, and Sarracino does not provide any basis for trea ting them differently.

4 Although he argued the issue below, Sa rracino does not challenge the district court’s conclusion that his federal assa ult with a dangerous weapon conviction qualifies as a crime of violence.