PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

FRANCISCO MELGAR-CABRERA, 

 Defendant - Appellant. 

No. 16-2018 

_________________________________ 

Appeal from the United States District Court 

for the District of New Mexico 

 (D.C. No. 1:09-CR-2962-WJ-3) 

_________________________________ 

Scott M. Davidson, The Appellate Law Office of Scott M. Davidson, Ph.D., Esq., 

Albuquerque, New Mexico, for Defendant-Appellant. 

C. Paige Messec, Assistant United States Attorney (Damon P. Martinez, United States 

Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee. 

_________________________________ 

Before BRISCOE, SEYMOUR, and McHUGH, Circuit Judges. 

_________________________________ 

SEYMOUR, Circuit Judge. 

 __________________________________ 

This case arises out of two restaurant robberies in 2009 during one of which 

Francisco Melgar-Cabrera’s cohorts shot and killed a waitress. Mr. Melgar-Cabrera was 

charged with numerous crimes but was not immediately tried because he fled to El 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 8, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

Salvador. He was extradited in 2013 and subsequently convicted and sentenced to life 

imprisonment pursuant to 18 U.S.C. § 924(j)1

 for causing the death of a person while 

using a gun to commit a § 924(c) crime of violence. He appeals, contending that Hobbs 

Act robbery, the underlying crime for which he was charged, is not categorically a crime 

of violence. Before addressing the Hobbs Act issue, however, we consider an additional 

matter that neither Mr. Melgar-Cabrera nor the government raised: the fact that in this 

circuit, § 924(j) has been held to constitute a sentencing enhancement, not a separate 

crime. United States v. Battle, 289 F.3d 661, 666 (10th Cir. 2002) (disagreeing with 

defendant’s “contention that § 924(j) sets forth ‘an aggravated crime different from § 

924(c),’” and instead holding “[s]ection 924(j) describes the sentencing factors that must 

be proved in order to impose a consecutive sentence of death, life imprisonment or a term 

of years” for someone who causes death while using a firearm to commit a crime of 

violence). We do so because the El Salvador Supreme Court granted extradition of Mr. 

Melgar-Cabrera only after holding that he could not be charged with or convicted of a 

§ 924(c) crime. The government subsequently re-indicted Mr. Melgar-Cabrera and 

charged him with violating § 924(j), and he was convicted of that “crime” rather than a 

§ 924(c) offense. We ordered supplemental briefing on the § 924(j) issue. We affirm. 

 

1

 Section 924(j) provides that “[a] person who, in the course of a violation of [§ 924 (c)], 

causes the death of a person through the use of a firearm, shall . . . if the killing is a 

murder (as defined in section 1111), be punished by death or by imprisonment for any 

term of years or for life.” 18 U.S.C. § 924(j). 
3 

I. 

On June 13, 2009, Mr. Melgar-Cabrera and two cohorts robbed a Lone Star 

Steakhouse at gunpoint. On June 20, the same three men robbed a Denny’s restaurant at 

gunpoint. During the course of this second robbery, one of the men shot and killed 

Stephanie Anderson, a waitress at the restaurant. On April 4, 2010, the government 

indicted Mr. Melgar-Cabrera and his co-defendants. The charges against Mr. MelgarCabrera stemming from the Lone Star robbery included a count for conspiracy to commit 

and committing Hobbs Act robbery in violation of 18 U.S.C. § 1951(a), and a charge for 

using a gun in relation to that crime of violence in violation of § 924(c). The charges 

against him stemming from the Denny’s robbery also included counts for conspiracy to 

commit and committing Hobbs Act robbery and for using a gun in relation to that crime. 

In addition, the government charged Mr. Melgar-Cabrera under § 924(j) for causing the 

death of Stephanie Anderson while using a gun to commit a crime of violence. 

After the robberies, Mr. Melgar-Cabrera fled to El Salvador. The United States 

requested his extradition on October 2, 2013 for all of the counts listed above. The 

Supreme Court of Justice of the Republic of El Salvador denied extradition as to both 

conspiracy counts and both counts involving § 924(c) because it concluded that neither 

crime was “included in the list of crimes of the Bilateral Extradition Treaty.” ROA vol. 1 

at 328. Accordingly, the court granted extradition for only two offenses: “committing 

aggravated murder while using and carrying a firearm during and in relation to a crime of 

violence and aiding and abetting . . . [and] interfer[ing] with interstate commerce by 

robbery and violence and aiding and abetting.” Id. at 342. 
4 

Once back in the United States, Mr. Melgar-Cabrera filed a motion to dismiss all 

counts on which the Salvadoran Supreme Court did not grant extradition. The 

government agreed and filed its own motion to dismiss. The government explained: 

2. Pursuant to the Treaty, the Government of the United States has 

obligations governed by the Rule of Specialty, as set forth in Article IV 

of the Treaty, to the effect that a defendant shall not be tried or punished 

for any crime or offense other than those for which extradition is 

granted. 

3. The Salvadoran Supreme Court extradited Defendant on the offenses 

charged in Count 4 and Counts 3 and 13 of the Second Superseding 

Indictment which charge Committing Felony Murder While in Violation 

of 18 U.S.C. §§ 924(j), 1111, and 2; and Interference with Interstate 

Commerce by Robbery and Violence and Aiding and Abetting in 

violation of 18 U.S.C. §§ 1951(a) and 2 respectively. 

Id. at 532-533. The only charges remaining, the government asserted, were two counts of 

Hobbs Act robbery (one stemming from each robbery) in violation of § 1951(a), and one 

count “which charges Defendant with Committing Felony Murder While in Violation of 

18 U.S.C. §§ 924(j)(1), 1111 and 2.” Id. at 534. The district court granted the 

government’s motion to dismiss. 

Before trial, Mr. Melgar-Cabrera moved to dismiss the felony murder charge, 

arguing that Hobbs Act robbery could not serve as a predicate “crime of violence” under 

§ 924(c), which is necessary for a violation of § 924(j). The district court denied his 

motion and Mr. Melgar-Cabrera was convicted on all three counts. On December 1, 

2015, the district court sentenced him to life imprisonment on the § 924(j) felony murder 

count and twenty years for each Hobbs Act robbery count, to run concurrently. He 

appeals. 
5 

II. 

Before we turn to the merits of Mr. Melgar-Cabrera’s appeal, we address whether 

§ 924(j) is a separate crime in order to clarify the law in this circuit and to avoid 

confusion in future cases. We begin with 18 U.S.C. § 924(c)(1), which sets forth a 

discrete crime for using or carrying a firearm in furtherance of a crime of violence or 

drug trafficking crime. See Abbott v. United States, 562 U.S. 8, 12 (2010).

Confusingly, Congress placed this “discrete crime” in 18 U.S.C. § 924, a statutory 

section labeled “Penalties.” See Gun Control Act of 1968, Pub. L. No. 90-618, § 101, 82 

Stat. 1213. In United States v. Sudduth, 330 F. Supp. 285, 289 (D. Colo. 1971), one of 

the earliest cases discussing § 924(c), the district court noticed this oddity and held that 

§ 924(c) did not create a discrete crime, stating that “[w]hen Congress devoted several 

pages to phrasing Sec. 922 which creates the unlawful acts, it is difficult to accept an 

argument that Congress impliedly intended to create an offense under the section of the 

Act headed ‘Penalties.’” We reversed that conclusion in United States v. Sudduth, 457 

F.2d 1198, 1201 (10th Cir. 1972), stating that “[a]n examination of the events 

surrounding the enactment of section 924(c) and an evaluation of its wording leads us to 

the conclusion that it was intended to create a separate crime. It is obvious, however, that 

the matter is by no means free of doubt . . . .” In its first case interpreting § 924(c), the 

Supreme Court approvingly cited our Sudduth opinion and declared that § 924(c) “creates 

an offense distinct from the underlying federal felony,” before holding that a defendant 

could not be punished under both § 924(c)(1) and the enhanced punishment provision for 
6 

bank robbery under § 2113(d). Simpson v. United States, 435 U.S. 6, 10-13 (1978), 

superseded by statute, Comprehensive Crime Control Act of 1984, Pub L. 98-473, 

§ 1005(a), 98 Stat. 2138-39, as recognized in United States v. Gonzales, 520 U.S. 1, 10 

(1997). The Court thus ended any debate as to whether Congress intended § 924(c) to be 

a discrete crime or a sentencing enhancement. 

But another provision under the “Penalties” subheading is § 924(j), which is at the 

center of this case. It provides that “[a] person who, in the course of a violation of 

subsection (c), causes the death of a person through the use of a firearm, shall . . . if the 

killing is a murder (as defined in section 1111), be punished by death or by imprisonment 

for any term of years or for life . . . .” 18 U.S.C. § 924(j). Notably, we held in Battle, 

289 F.3d at 666, that § 924(j) is not a discrete crime but is instead a sentencing 

enhancement. One other circuit has agreed with this conclusion. See United States v. 

Allen, 247 F.3d 741, 769 (8th Cir. 2002) (“§ 924(j) is fairly interpreted as an additional 

aggravating punishment for the scheme already set out in § 924(c)”), vacated on other 

grounds, 536 U.S. 953 (2002). Other circuits, however, have held or strongly insinuated 

that § 924(j) is a discrete crime. See United States v. Berrios, 676 F.3d 118, 142 n.17 (3d 

Cir. 2012) (stating evidence “strongly suggest[s] that Congress intended” § 924(j) to be 

considered discrete crime but determination of issue not necessary to outcome of case); 

see also United States v. Julian, 633 F.3d 1250, 1253 (11th Cir. 2011) (“The facts that the 

government must prove for a criminal to receive a sentence—including a potential 

sentence of death—under section § 924(j) comprise elements, not sentencing factors.”); 
7 

United States v. Young, 561 F. App’x. 85, 94 (2d Cir. 2014) (unpublished) (observing that 

§ 924(j) “likely indicates that it is a stand-alone offense”). 

Although Mr. Melgar-Cabrera was charged with and convicted of violating 

§ 924(j), he never made an objection, either at trial or on appeal, concerning § 924(j)’s 

status under Battle as a sentencing factor rather than a discrete crime. “While this 

ordinarily constitutes a waiver of the issue . . . our case law unquestionably recognizes 

our inherent power to raise an issue sua sponte as plain error under circumstances 

strongly implying a fundamental defect or error of sufficient magnitude to undermine our 

confidence that justice was served.” United States v. Santistevan, 39 F.3d 250, 256 (10th 

Cir. 1994); see also Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights 

may be considered even though it was not brought to the court’s attention.”). A 

defendant being convicted of a crime that is not a crime certainly qualifies as 

“circumstances strongly implying a fundamental defect.” Santistevan, 39 F.3d at 256. 

Thus, we exercise our discretion to review for plain error. Plain error occurs “when there 

is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously 

affects the fairness, integrity, or public reputation of judicial proceedings.” United States 

v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015), abrogated on other grounds by Beckles 

v. United States, 137 S. Ct. 886 (2017). The government has convinced us there was no 

error here. 

Battle rested on a shaky foundation from the beginning. There, Mr. Battle was 

charged with one count of Hobbs Act robbery and one count of causing the death of a 

person with a firearm during the commission of the robbery, in violation of § 924(c) and 
8 

§ 924(j). Battle, 289 F.3d at 663. The court sentenced Mr. Battle to 240 months 

imprisonment for the Hobbs Act violation and life imprisonment for the violation of 

§ 924(c) and (j), to be served consecutively. Id. A district court generally has discretion 

to impose consecutive sentences, see 18 U.S.C. § 3584, but normally it must state its 

reasons for doing so, see United States v. Rose, 185 F.3d 1108, 1112-13 (10th Cir. 1999). 

In Battle, however, the district court had not done so. We noted that we were not 

compelled to overturn the district court’s decision because § 924(c)(1)(D)(ii) specifically 

forbids the imposition of concurrent sentences for § 924(c) violations and the underlying 

crime of violence. Battle, 289 F.3d at 665. Although Mr. Battle argued that the district 

court had erred when it imposed consecutive sentences without stating its reasons for 

doing so because § 924(j) is a discrete crime from § 924(c), we rejected his argument by 

concluding that § 924(j) was only a sentencing enhancement. Id. at 666. We held 

accordingly that “§ 924(c) unambiguously mandates the imposition of a consecutive 

sentence ‘in addition to’ the punishment ordered for the use of a firearm during the 

commission of a crime of violence where the evidence demonstrates the existence of the 

aggravating sentencing factors set forth in § 924(j).” Id. at 669. 

But as the government pointed out in its supplemental brief, Aple. Supp. Br. at 1, 

10, Battle never discussed, or even cited, the recently decided landmark Supreme Court 

decision of Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Court held 

that “any fact that increases the penalty for a crime beyond the prescribed statutory 

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 

491. Thereafter, in Ring v. Arizona, 536 U.S. 584 (2002), the Court addressed Arizona’s 
9 

sentencing scheme, which allowed a judge to increase a defendant’s maximum 

punishment from life imprisonment to a death sentence by finding an aggravating factor 

beyond a reasonable doubt. Id. at 598. An earlier Supreme Court case had held 

Arizona’s sentencing scheme constitutional after concluding that the additional facts 

found by the judge qualified as sentencing considerations and not “element[s] of the 

offense of capital murder.” Walton v. Arizona, 497 U.S. 639, 649 (1990). Ring held 

Walton to be irreconcilable with Apprendi and “overrule[d] Walton to the extent that it 

allow[ed] a sentencing judge, sitting without a jury, to find an aggravating circumstance 

necessary for imposition of the death penalty.” 536 U.S. at 609. As the Court succinctly 

recognized in Alleyne v. United States, 570 U.S. 99, 116 (2013), an “aggravating fact 

[that] produce[s] a higher range . . . conclusively indicates that the fact is an element of a 

distinct and aggravated crime.” 

The Eleventh Circuit recognized these principles in United States v. Julian, 663 

F.3d at 1255, when it held that § 924(j) is a discrete crime. It noted that “[t]he distinction 

drawn between elements and sentencing factors in decisions that have interpreted the 

Fifth and Sixth Amendments also supports our interpretation that section 924(j) defines 

elements of a separate offense.” The court also observed that “the Sixth Amendment 

prohibits imposition of a sentence greater than ‘the maximum [a criminal] would receive 

if punished according to the facts reflected in the jury verdict alone.’ Apprendi v. New 

Jersey, 530 U.S. 466, 483 (2000),” and that “[c]apital crimes are no different. See Ring v. 

Arizona, 536 U.S. 584, 589 (2002).” Id. It then pointed out that 
10 

[s]ection 924(j) increases the maximum penalty a defendant may receive 

beyond the sentence applicable to a defendant found to have violated only 

the elements listed in section 924(c). Life imprisonment is the maximum 

sentence a defendant may receive under section 924(c) for using a firearm 

in a crime of violence or drug trafficking offense, United States v. 

Woodruff, 296 F.3d 1041, 1050 (11th Cir.2002), but a defendant may 

receive the death penalty under section 924(j). . . . The United States 

appreciated these constitutional implications of the distinction between 

elements and sentencing factors when it prosecuted Julian. The United 

States treated as elements all of the facts necessary to convict Julian under 

section 924(j) because it charged these facts in the indictment and proved 

them to a jury beyond a reasonable doubt.

Id. (emphasis added).

2

 

The cases cited above persuade us we erred when we held in Battle that § 924(j) 

was merely a sentencing enhancement rather that a discrete crime.3 

III. 

We now turn to the merits of this case. Mr. Melgar-Cabrera contends that Hobbs 

Act robbery does not qualify as a crime of violence under § 924(c)(3) and his conviction 

 

2

 Fortunately, the government in the present case treated § 924(j) as a discrete crime as 

well when it charged the relevant facts in the indictment as elements of a crime. See

ROA vol. 1 at 33-34. In addition, the district court instructed the jury that the 

government was required to prove those elements beyond a reasonable doubt. Compare

District Court’s Jury Instructions on § 924(j), ROA vol. 1 at 971, with Tenth Circuit 

Criminal Pattern Jury Instruction 2.45 (the pattern instructions for a violation of 

§ 924(c)). 

3

 “A panel decision may overrule a point of law established by a prior panel through an 

en banc footnote by obtaining authorization from all active judges on the court.” United 

States v. Atencio, 476 F.3d 1099, 1102 (10th Cir. 2007), overruled in part on other 

grounds by Irizarry v. United States, 553 U.S. 708, 713 n.1 (2008) (citing United States v. 

Meyers, 200 F.3d 715, 721 n. 3 (10th Cir.2000)). This opinion has been circulated to all 

active members of this court, and it is our unanimous decision to overturn the conclusion 

articulated in Battle that 18 U.S.C. § 924(j) is a sentencing factor rather than a discrete 

crime. 
11 

should therefore be vacated. He argues that Hobbs Act robbery fails to categorically 

constitute a crime of violence under what is sometimes called the statute’s elements or 

force clause, § 924(c)(3)(A).4

 We review de novo the district court’s interpretation of 

§ 924(c) and its legal conclusion that a particular offense constitutes a crime of violence. 

United States v. Serafin, 562 F.3d 1105, 1107 (10th Cir. 2009). 

A “crime of violence” is defined as “an offense that is a felony” and 

(A) has 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). To determine whether a predicate crime constitutes a crime of 

violence under § 924(c), we employ the categorical approach. Serafin, 562 F.3d at 

1107. 

Under the categorical approach, we look “only to the fact of conviction and 

the statutory definition of the prior offense, and do not generally consider 

the particular facts disclosed by the record of conviction. That is, we 

consider whether the elements of the offense are of the type that would 

justify its inclusion . . . [as a crime of violence], without inquiring into the 

specific conduct of this particular offender.” 

Id. at 1107-08 (quoting United States v. West, 550 F.3d 952, 957 (10th Cir. 2008) 

(citations and quotations omitted)). In applying the categorical approach, we 

 

4

 Mr. Melgar-Cabrera alternatively argues that the statute’s residual clause, 

§ 924(c)(3)(B), is void for vagueness under the Supreme Court’s decision in Johnson v. 

United States (Johnson II), 135 S. Ct. 2551 (2015). We recently held that the residual 

clause in § 924(c)(3)(B) is indeed unconstitutionally vague. See United States v. Salas, 

No. 16-2170, slip op. at 11, 2018 WL 2074547 (10th Cir. May 4, 2018). That outcome 

does not affect Mr. Melgar-Cabrera’s appeal given our conclusion that Hobbs Act 

robbery is a crime of violence under the elements clause of § 924(c)(3). 
12 

follow the Supreme Court’s instruction that there must be “a realistic probability, 

not a theoretical possibility,” that the statute at issue could be applied to conduct 

that does not constitute a crime of violence. Gonzales v. Duenas-Alvarez, 549 

U.S. 183, 193 (2007). 

 The “crime of violence” of which Mr. Melgar-Cabrera was convicted was Hobbs 

Act robbery, codified in 18 U.S.C. § 1951. Section 1951(a) makes it a crime to 

“obstruct[], delay[], or affect[] commerce . . . by robbery . . . .” Section 1951(b)(1) 

defines the term “robbery” as follows: 

The term “robbery” means the unlawful taking or obtaining of personal 

property from the person or in the presence of another, against his will, by 

means of actual or threatened force, or violence, or fear of injury, 

immediate or future, to his person or property, or property in his custody or 

possession, or the person or property of a relative or member of his family 

or of anyone in his company at the time of the taking or obtaining. 

 Mr. Melgar-Cabrera makes two arguments for why Hobbs Act robbery fails to 

constitute a crime of violence under § 924(c)(3)(A). First, he asserts that the term “force” 

as used in the definition of robbery in 18 U.S.C. § 1951(b)(1) does not require violent 

force, whereas “physical force” as used in § 924(c)(3)(A) does.5

 Second, he argues that 

unlawfully taking a victim’s property against his or her will “by means of . . . fear of 

 5

 The government contends that Mr. Melgar-Cabrera did not preserve this 

argument and that we should review only for plain error. Because we conclude that the 

district court did not err, we need not determine whether this argument was properly 

preserved. Cf. United States v. Flonnory, 630 F.3d 1280, 1285 (10th Cir. 2011) (“There 

is substantial merit to the government's argument; but because we decide that the court's 

response was not an abuse of discretion, we need not decide whether the issue was 

adequately preserved below.”). 
13 

injury” does not require the attempted or threatened use of physical force. We address 

each argument in turn. 

A. “Force” in § 924(c)(3)(A) 

 Before we can address whether Hobbs Act robbery requires violent force, we must 

first determine whether § 924(c)(3)(A) requires violent force. There are several federal 

statutes that employ the same language as § 924(c)’s force clause. See, e.g., 18 U.S.C. 

§ 924(e)(2)(B)(i) (“the term ‘violent felony’ means any crime punishable by 

imprisonment for a term exceeding one year . . . that—(i) has as an element the use, 

attempted use, or threatened use of physical force against the person of another . . . .”); 18 

U.S.C. § 16(a) (“[T]he term ‘crime of violence’ means—(a) an offense that has as an 

element the use, attempted use, or threatened use of physical force against the person or 

property of another . . . .”); 18 U.S.C. § 921(a)(33)(A) (“The term ‘misdemeanor crime of 

domestic violence’ means an offense that—(i) is a misdemeanor under Federal, State, or 

Tribal law; and (ii) has, as an element, the use or attempted use of physical force . . . .”). 

All of these provisions include the term “physical force,” and one might assume that the 

term means the same thing in each instance. But that assumption would be incorrect. 

In 2010, the Supreme Court was tasked with determining the meaning of the 

words “physical force” as used in 18 U.S.C. § 924(e)(2)(B)(i). See Johnson v. United 

States (Johnson I), 559 U.S. 133, 140 (2010). The Court noted that the word “force” has 

always had a specialized meaning within legal parlance: “its use in describing one of the 

elements of the common-law crime of battery, which consisted of the intentional 

application of unlawful force against the person of another.” Id. at 139 (citing 2 W. 
14 

LaFave & A. Scott, Substantive Criminal Law § 7.15(a), p. 301 (1986 and Supp.2003)). 

But instead of prescribing the common-law definition to § 924(e)’s use of the word 

“force,” the Court elected to use the ordinary meaning of the word, concluding that “the 

phrase ‘physical force’ means violent force—that is, force capable of causing physical 

pain or injury to another person.” Id. at 140 (citing Flores v. Ashcroft, 350 F.3d 666, 672 

(7th Cir. 2003)). 

The Court listed several reasons for coming to this conclusion but the main reason 

was that the word “force” was being used in the statutory definition of “violent” felony. 

“Even by itself,” the Court noted, “the word ‘violent’ in § 924(e)(2)(B) connotes a 

substantial degree of force.” Id. The Court further stated that “[w]hen the adjective 

‘violent’ is attached to the noun ‘felony,’ its connotation of strong physical force is even 

clearer.” Id. Thus, as used in § 924(e)(2)(B)(i), the word “force” means “violent force.” 

The Court faced a similar issue five years later in United States v. Castleman, 134 

S. Ct. 1405 (2014), but came to a different conclusion. Castleman concerned the 

meaning of “physical force” as used in § 921(a)(33)(A)’s definition of “misdemeanor 

crime of domestic violence.” In 2008, Mr. Castleman was caught selling firearms on the 

black market and was subsequently indicted under 18 U.S.C. § 922(g)(9), which makes it 

a crime for a person who has been convicted of a misdemeanor crime of domestic 

violence to ship, possess, or receive firearms affecting interstate commerce. A 

misdemeanor crime of domestic violence is defined as an offense that 

has, as an element, the use or attempted use of physical force, or the 

threatened use of a deadly weapon, committed by a current or former 

spouse, parent, or guardian of the victim, by a person with whom the victim 
15 

shares a child in common, by a person who is cohabiting with or has 

cohabited with the victim as a spouse, parent, or guardian, or by a person 

similarly situated to a spouse, parent, or guardian of the victim. 

18 U.S.C. § 921(a)(33)(A). 

The government alleged that Mr. Castleman’s misdemeanor crime of domestic 

violence (i.e., his predicate crime for a conviction under § 922(g)) was a conviction in 

2001 for “‘intentionally or knowingly caus[ing] bodily injury to’ the mother of his child, 

in violation of Tenn. Code Ann. § 39-13-111(b) (Supp. 2002).” Castleman, at 1409. 

“Castleman moved to dismiss the § 922(g)(9) charges, arguing that his Tennessee 

conviction did not qualify as a ‘misdemeanor crime of domestic violence’ because it did 

not ‘ha[ve], as an element, the use . . . of physical force,’ § 921(a)(33)(A)(ii).” Id. The 

district court agreed with Mr. Castleman and the Sixth Circuit affirmed. Id. 

The Supreme Court granted certiorari and reversed. In so doing, the Court applied 

the exact argument that it rejected in Johnson I, concluding that Congress “incorporated 

the common-law meaning of ‘force’—namely, offensive touching—in § 921(a)(33)(A)’s 

definition of a ‘misdemeanor crime of domestic violence.’” Id. at 1410. It distinguished 

Johnson I as follows: 

In Johnson, we considered whether a battery conviction was a “violent 

felony” under the Armed Career Criminal Act (ACCA), § 924(e)(1). As 

here, ACCA defines such a crime as one that “has as an element the use . . . 

of physical force,” § 924(e)(2)(B)(i). We began by observing that at 

common law, the element of force in the crime of battery was “satisfied by 

even the slightest offensive touching.” 559 U.S., at 139, 130 S. Ct. 1265 

(citing 3 W. Blackstone, Commentaries on the Laws of England 120 

(1768)). And we recognized the general rule that “a common-law term of 

art should be given its established common-law meaning,” except “where 

that meaning does not fit.” 559 U.S., at 139, 130 S. Ct. 1265. We declined 

to read the common-law meaning of “force” into ACCA's definition of a 
16 

“violent felony,” because we found it a “comical misfit with the defined 

term.” Id., at 145, 130 S. Ct. 1265; see United States v. Stevens, 559 U.S. 

460, 474, 130 S. Ct. 1577, 176 L.Ed.2d 435 (2010) (“[A]n unclear 

definitional phrase may take meaning from the term to be defined”). In 

defining a “‘violent felony,’” we held, “the phrase ‘physical force’” must 

“mea[n] violent force.” Johnson, 559 U.S., at 140, 130 S. Ct. 1265. But 

here, the common-law meaning of “force” fits perfectly: The very reasons 

we gave for rejecting that meaning in defining a “violent felony” are 

reasons to embrace it in defining a “misdemeanor crime of domestic 

violence.” 

Id. As the Court explained, one reason for its departure from Johnson I was that while 

“the word ‘violent’ or ‘violence’ standing alone ‘connotes a substantial degree of force,’ 

that is not true of ‘domestic violence,’” which “is a term of art encompassing acts that 

one might not characterize as ‘violent’ in a nondomestic context.” Id. at 1411 (internal 

citations omitted) (quoting Johnson I, 559 U.S. at 140). 

Turning to the Tennessee statute, the Court held that it was divisible, applied the 

modified categorical approach, and determined that Mr. Castleman pled guilty to having 

“intentionally or knowingly cause[d] bodily injury to the mother of his child.” Id. at 

1414 (internal quotations omitted). After reasoning that “[u]nder Tennessee law, ‘bodily 

injury’ is a broad term: It ‘includes a cut, abrasion, bruise, burn or disfigurement; 

physical pain or temporary illness or impairment of the function of a bodily member, 

organ, or mental faculty,’” id. (quoting Tenn. Code Ann. § 39–11–106(a)(2) (1997)), the 

Court stated that “[i]t is impossible to cause bodily injury without applying force in the 

common-law sense.”6

 Id. at 1415. Accordingly, the Court held that Mr. Castleman’s 

 6

 The Court noted that Justice Scalia, in his concurrence, believed that the forms of 

injury listed in the relevant Tennessee statute “necessitate[d] violent force, under 

Johnson’s definition of that phrase.” Id. In response, the majority stated, “whether or not 
17 

conviction under Tenn. Code Ann. § 39-11-106(a)(2) did qualify as a misdemeanor crime 

of domestic violence under 18 U.S.C. § 922(g)(9). Id. at 1416. 

Castleman and Johnson I demonstrate that before a court can determine whether a 

predicate crime falls within a particular statute’s elements clause, it must first determine 

whether the statute’s use of the word “force” requires “violent force,” as Johnson I

determined was the case for § 924(e)(2)(B)(i), or instead whether it requires the commonlaw meaning of force, as Castleman determined was the situation in § 921(a)(33)(A). 

The statute at issue in this case, § 924(c)(3)(A), defines the term “crime of violence” as 

“an offense that is a felony” and “has as an element the use, attempted use, or threatened 

use of physical force against the person or property of another . . . .” The Supreme Court 

has not yet defined the word “force” in § 924(c)(3)(A), and, surprisingly, neither have 

we. We turn to that question. 

We conclude that the word “force” as used in § 924(c)(3)(A) means “violent 

force,” just as the Court held in Johnson I in regard to § 924(e)(2)(B)(i). The similarities 

between the two statutes are obvious. Both contain a form of the word “violent” (i.e., 

“crime of violence” and “violent felony”), and the Court has determined that “the word 

‘violent’ . . . connotes a substantial degree of force.” Johnson I, 559 U.S. at 140. 

Moreover, the Court observed that “[w]hen the adjective ‘violent’ is attached to the noun 

‘felony,’ its connotation of strong physical force is even clearer.” Id. While the word 

felony is not part of the phrase “crime of violence,” it is a necessary element of its 

 

that is so—a question we do not decide—these forms of injury do necessitate force in the 

common-law sense.” Id. 
18 

definition. See § 924(c)(3) (“the term ‘crime of violence’ means an offense that is a 

felony and . . . .” (emphasis added)). Thus, for virtually the same reasons the Court held 

that physical force as used in § 924(e)(2)(B)(i) means violent force instead of the 

common-law meaning of force, we too hold that physical force as used in § 924(c)(3)(A) 

“means violent force—that is, force capable of causing physical pain or injury to another 

person.” Johnson I, 559 U.S. at 140. 

B. Does Hobbs Act Robbery Require Violent Force? 

 Mr. Melgar-Cabrera contends that Hobbs Act robbery can be committed with mere 

offensive touching, a degree of force below that which is required of § 924(c), and that it 

therefore does not qualify as a “crime of violence” under § 924(c)(3)(A). We disagree. 

While Mr. Melgar-Cabrera is correct in his assertion that Hobbs Act robbery is defined as 

common-law robbery that affects interstate commerce, see United States v. Peterson, 236 

F.3d 848, 851 (7th Cir. 2001), abrogated on other grounds by Taylor v. United States, 

136 S. Ct. 2074 (2016); United States v. Harrington, 108 F.3d 1460, 1471 (D.C. Cir. 

1997); United States v. Nedley, 255 F.2d 350, 357 (3d Cir. 1958), he is incorrect in his 

assertion that common-law robbery can be committed without violent force. See United 

States v. Harris, 844 F.3d 1260, 1268 (10th Cir. 2017). Offensive touching has never 

sufficed to satisfy the force element of robbery. 

On the contrary, the force element of robbery has traditionally been 

identified with strong or violent force. See 3 Edward Coke, Institutes *68 

(defining robbery as “a felony by the common law, committed by a violent 

assault, upon the person of another, by putting him in fear, and taking from 

his person his money or other goods of any value whatsoever”); 4 William 

Blackstone, Commentaries *241 (defining robbery as “the felonious and 

forcible taking, from the person of another, of goods or money to any value, 
19 

by violence or putting him in fear”); see also, e.g., McCloskey v. People, 5 

Parker's Crim. 299, 307 (N.Y.Sup.Ct.1862) (“The property must be taken 

by violence to the person, which means more than a simple assault and 

battery.”). Nor has this common law meaning changed in the intervening 

centuries. See Black's 1443 (9th ed.2009) (defining robbery as “[t]he 

illegal taking of property from the person of another, or in the person's 

presence, by violence or intimidation”); id. at 717 (defining “physical 

force” as “[f]orce consisting in a physical act, esp[ecially] a violent act 

directed against a robbery victim.”). 

United States v. Pena, 161 F. Supp. 3d 268, 276 (S.D.N.Y. 2016). 

 We faced a similar issue in Harris, 844 F.3d at 1262, when we had to determine 

whether Colorado’s robbery statute (a statute that tracked the elements of common-law 

robbery) qualified as a “violent felony” under § 924(e)(2)(B)(i). We discussed how the 

Colorado Supreme Court had held that common-law robbery required a taking by 

“violence or intimidation.” Id. at 1266 (quoting People v. Borghesi, 66 P.3d 93, 99 

(Colo. 2003)). And we concluded by stating that the word “force” in Colorado’s robbery 

statute “categorically matches the definition of ‘physical force’ assigned by the Supreme 

Court in Johnson I.” Id. at 1268. Thus, Harris stands for the proposition that the force 

element in common-law robbery statutes (e.g., the Hobbs Act) can only be satisfied by 

violent force. Accordingly, we reject Mr. Melgar-Cabrera’s first argument. 

C. “Fear of Injury” in Hobbs Act Robbery 

Mr. Melgar-Cabrera’s second argument, to which he devotes only one paragraph 

in his brief, is that “Hobbs Act robbery can be committed by causing the victim to part 

with his property due to ‘fear of injury’” and robbery by such means does not require as 

an element the use or attempted use of violent physical force. Aplt. Br. at 15. For this 

argument, Mr. Melgar-Cabrera relies on United States v. Perez-Vargas, 414 F.3d 1282 
20 

(10th Cir. 2005), for the proposition that placing a victim in fear of injury by threatening 

the indirect application of physical force is not sufficient to constitute the threatened use 

of physical force because it “focuses on the result of a defendant’s conduct, i.e., bodily 

injury,” id. at 1285, and not the means of inflicting it. 

As we recognized in United States v. Ontiveros, 875 F.3d 533, 536 (10th Cir. 

2017), the Supreme Court abrogated Perez-Vargas “[to] the extent that [it] holds that 

indirect force is not an application of ‘physical force.’” Id. at 538. We reasoned that 

Castleman had rejected the logic of Perez-Vargas when it stated the following: 

 [U]se of force ... is not the act of sprinkling the poison; it is the act of 

employing poison knowingly as a device to cause physical harm. That the 

harm occurs indirectly, rather than directly (as with a kick or punch), does 

not matter. Under [petitioner's] logic, after all, one could say that pulling 

the trigger on a gun is not a use of force because it is the bullet, not the 

trigger, that actually strikes the victim. 

Ontiveros, 875 F.3d at 537 (quoting Castleman, 134 S. Ct. at 1415, (external 

quotation marks and brackets omitted)). We noted that “[a]lmost every circuit that 

has looked at this issue has determined that Castleman’s logic is applicable to the 

‘physical force’ requirement as used in a felony crime of violence.” Id. (citing 

cases). We found one case in particular extremely persuasive and quoted its 

reasoning at length: 

To be sure, Castleman did not construe ACCA’s force clause, and it 

expressly reserved the question of whether the causation of “bodily injury,” 

a term defined broadly under Tennessee law, would “necessitate violent 

force under Johnson's definition of that phrase” in ACCA. 134 S. Ct. at 

1414. But the Court's formal reservation does not foreclose application of 

the relevant aspects of its reasoning, which did not rest on any distinction 

between § 922(g)(9) and ACCA's force clause, § 924(e)(2)(B)(i). Indeed, 

the Court relied significantly on Johnson in rejecting a proffered limitation 
21 

on the term “physical force.” See Castleman, 134 S. Ct. at 1414 (“[A]s we 

explained in Johnson, ‘physical force’ is simply ‘force exerted by and 

though concrete bodies’”); cf. id. at 1416–17 (Scalia, J., concurring in part 

and concurring in the judgment) (“[I]t is impossible to cause bodily injury 

without using force ‘capable of’ producing that result”). Accordingly, by 

applying the combination of Johnson and Castleman, we conclude that 

ACCA’s phrase “use of physical force” includes force applied directly or 

indirectly. 

Id. at 537-38 (quoting United States v. Reid, 861 F.3d 523, 528-29 (4th Cir. 2017)). We 

concluded by stating, “[w]e agree with the Fourth Circuit and hold that Castleman’s logic 

applies to ‘physical force’ in the context of violent felonies.” Id. at 538. 

Because the terms “physical force” as used in both § 924(c) and § 924(e)(2)(B)(i) 

are identical, we apply Ontiveros to this case. To the extent Mr. Melgar-Cabrera contends 

that committing Hobbs Act robbery by putting someone in fear of injury does not 

necessarily constitute the threatened use of physical force because it can be done through 

indirect force, Ontiveros has foreclosed his argument. See United States v. Hill, 832 F.3d 

135, 140-44 (7th Cir. 2016) (applying Castleman to § 924(c) and holding that placing 

someone in “fear of injury” under the Hobbs Act necessarily constitutes the threatened 

use of physical force); see also United States v. Kendall, 2017 WL 6273210, at *5-6; 876 

F.3d. 1264, 1270-71 (10th Cir. 2017) (applying Ontiveros to the definition of crime of 

violence under USSG § 4B1.2).7

 

7

 We note that one of our recent cases seems to be at odds with our conclusion here. In 

United States v. O’Connor, 874 F.3d 1147, 1158 (10th Cir. 2017), we held that Hobbs 

Act robbery was not a “crime of violence” under U.S.S.G. § 4B1.2(a)(1). But while § 

4B1.2(a)(1) has language similar to § 924(c)(3)(A), it is not identical. Compare U.S.S.G. 

§ 4B1.2(a)(1) (stating that an offense is a crime of violence if it “has as an element the 

use, attempted use, or threatened use of physical force against the person of another”), 

with § 924(c)(3)(A) (stating that an offense is a crime of violence if it “has as an element 
22 

 Accordingly, we affirm. 

 

 

the use, attempted use, or threatened use of physical force against the person or property

of another” (emphasis added)). O’Connor pointed out this distinction in its holding and 

limited it accordingly: “There is nothing incongruous about holding that Hobbs Act 

robbery is a crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A), which includes 

force against a person or property, but not for purposes of U.S.S.G. § 4B1.2(a)(1), which 

is limited to force against a person.” Id. (citing United States v. Andino-Ortega, 608 F.3d 

305, 310-12 (5th Cir. 2010)). Thus, we see no inconsistencies between our opinion here 

and O’Connor.