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 Offi ce of Scott M. Davidson, Ph.D., Esq., Albuquerque, New Mexico, for Defendant-Appellant. C. Paige Messec, Assistant United States A ttorney (Damon P. Martinez, United States Attorney, with her on the brief), Albuquerque, New Me xico, 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 Court2 Salvador. He was extradited in 2013 and su bsequently 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 viol ence. He appeals, contending that Hobbs Act robbery, the underlying crime for which he was charged, is not categorically a crime of violence. Before addressi ng the Hobbs Act issue, howeve r, we consider an additional matter that neither Mr. Melgar-Cabrera nor the government raised: th e 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) de scribes the sentencing factors that must be proved in order to impose a consecutive sent ence of death, life imprisonment or a term of years” for someone who causes death wh ile using a firearm to commit a crime of violence). We do so because the El Salva dor Supreme Court gran ted extradition of Mr. Melgar-Cabrera only after holding that he co uld not be charged with or convicted of a § 924(c) crime. The government subsequent ly re-indicted Mr. Melgar-Cabrera and charged him with violating § 9 24(j), and he was convicted of that “crime” rather than a § 924(c) offense. We ordered supplemental br iefing 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 puni shed 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 sec ond robbery, one of the men shot and killed Stephanie Anderson, a waitress at the restau rant. 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 coun t 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 viol ence 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 ro bbery and for using a gun in relation to that crime. In addition, the government charged Mr. Melg ar-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 fl ed to El Salvador. The United States requested his extradition on Oc tober 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 involvi ng § 924(c) because it concluded that neither crime was “included in the list of crimes of the Bilateral Ex tradition Treaty.” ROA vol. 1 at 328. Accordingly, the court granted ex tradition for only two offenses: “committing aggravated murder while using and carrying a firearm during an d in relation to a crime of violence and aiding and abetting . . . [and] interfer[ing] with in terstate commerce by robbery and violence and aiding and abetting.” Id. at 342.4 Once back in the United Stat es, Mr. Melgar-Cabrera filed a motion to dismiss all counts on which the Salva doran Supreme Court did no t grant extradition. The government agreed and filed its own motion to dismiss. The government explained:
2. Pursuant to the Treaty, the Gove rnment of the United States has obligations governed by the Rule of Sp ecialty, as set forth in Article IV of the Treaty, to the effect that a de fendant shall not be tried or punished for any crime or offense other than those for which extradition is granted.
3. The Salvadoran Supreme Court extr adited Defendant on the offenses charged in Count 4 and Counts 3 and 13 of the Sec ond 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 char ges remaining, the government asserted, were two counts of Hobbs Act robbery (one stemming from each robb ery) in violation of § 1951(a), and one count “which charges Defendant with Committing Felony Murd er 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 felo ny murder charge, arguing that Hobbs Act robbery could not serve as a predicat e “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 convicte d on all three counts. On December 1, 2015, the district court senten ced him to life imprisonment on the § 924(j) felony murder count and twenty years for e ach Hobbs Act robbery count, to run concurrently. He appeals.5 II.

Before we turn to the merits of Mr. Me lgar-Cabrera’s appeal, we address whether § 924(j) is a separate crime in order to cl arify 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 firear m 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 “discret e 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 § 9 24(c), the district court noticed this oddity and held that § 924(c) did not create a discrete crime, st ating that “[w]hen Congress devoted several pages to phrasing Sec. 922 wh ich creates the unlawful acts, it is difficult to accept an argument that Congress impliedl y intended to create an offe nse 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 examina tion 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 se parate 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 federa l felony,” before holding that a defendant could not be punished under both § 924(c)(1) and the enhanc ed punishment provision for6 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 intend ed § 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 cour se 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). No tably, 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 ha s 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 sche me already set out in § 924(c)”), vacated on other grounds , 536 U.S. 953 (2002). Other circuits, how ever, 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 Ci r. 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) comp rise elements, not sentencing factors.”);7 United States v. Young , 561 F. App’x. 85, 94 (2d Cir. 2014) (unpublishe d) (observing that § 924(j) “likely indicates that it is a stand-alone offense”). Although Mr. Melgar-Cabrera was charge d 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 issu e . . . 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 erro r of sufficient magnitude to undermine our confidence that jus tice 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 tho ugh it was not brought to th e 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 fo r plain error. Plain error occurs “when there is (1) error, (2) that is plai n, 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 govern ment has convinced us there was no error here. Battle rested on a shaky foundation from th e beginning. There, Mr. Battle was charged with one count of H obbs Act robbery and one count of causing the death of a person with a firearm during the commission of th e robbery, in viola tion of § 924(c) and8 § 924(j). Battle , 289 F.3d at 663. The court sent enced Mr. Battle to 240 months imprisonment for the Hobbs Act violation a nd 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 d one so. We noted that we were not compelled to overturn the dist rict 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 onl y 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 orde red for the use of a firearm during the commission of a crime of violence where the evidence demonstrates the existence of the aggravating sentencing factor s 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, an d proved beyond a reasonable doubt.” Id. at 491. Thereafter, in Ring v. Arizona , 536 U.S. 584 (2002), the Court addressed Arizona’s9 sentencing scheme, which allowed a judge to increase a defendant’s maximum punishment from life imprisonment to a deat h 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 recogn ized these principles in United States v. Julian , 663 F.3d at 1255, when it held that § 924(j) is a di screte crime. It noted that “[t]he distinction drawn between elements and sentencing factor s in decisions that have interpreted the Fifth and Sixth Amendments also supports our interpretation that section 924(j) defines elements of a separate offe nse.” The court also observe d that “the Sixth Amendment prohibits imposition of a sentence greater than ‘the maximum [a criminal] would receive if punished according to the facts re flected in the ju ry verdict alone.’ Apprendi v. New Jersey , 530 U.S. 466, 483 (20 00),” and that “[c]apital crimes are no different. See Ring v. Arizona , 536 U.S. 584, 589 (2002).” Id. It then pointed out that10 [s]ection 924(j) increases the maximum penalty a defendant may receive beyond the sentence applicable to a defe ndant found to have violated only the elements listed in section 924(c ). Life imprisonment is the maximum sentence a defendant may receive unde r 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 Ci r.2002), but a defendant may receive the death penalty under section 924(j). . . . The United States appreciated these constitutional implic ations 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-C abrera 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 th e indictment as elem ents of a crime. See ROA vol. 1 at 33-34. In addition, the dist rict 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 Instru ction 2.45 (the pattern inst ructions for a violation of § 924(c)). 3 “A panel decision may overru le a point of law establishe d by a prior panel through an en banc footnote by obtaining authorizatio n from all active judges on the court.” United States v. Atencio , 476 F.3d 1099, 1 102 (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 opini on has been circulated to all active members of this court, and it is our una nimous 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 dist rict court’s interpretation of § 924(c) and its legal conclusion that a particul ar 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 “a n offense that is a felony” and (A) has as an element the use, attempted use, or th reatened use of physical force against the person or property of another, or (B) that by its nature, involves a substa ntial risk that phys ical 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 pr edicate 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 o ffense, 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, 95 7 (10th Cir. 2008) (citations and quotations omitted)). In applying the categorical approach, we

4 Mr. Melgar-Cabrera alternatively argue s 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 appe al given our conclusion that Hobbs Act robbery is a crime of violence under th e 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 c ould 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. Me lgar-Cabrera was convicted was Hobbs Act robbery, codified in 18 U.S.C. § 19 51. Section 1951(a) makes it a crime to “obstruct[], delay[], or aff ect[] 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 pr esence 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 pr operty, 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 pr operty against his or her will “by means of . . . fear of

5 The government contends that Mr. Me lgar-Cabrera did not preserve this argument and that we should re view only for plain error. Be cause we conclude that the district court did not err, we need not de termine 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 argum ent; 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 atte mpted or threatened use of p hysical 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 langua ge as § 924(c)’s force clause. See, e.g. , 18 U.S.C. § 924(e)(2)(B)(i) (“the term ‘violent fe lony’ 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 fo rce against the person of another . . . .”); 18 U.S.C. § 16(a) (“[T]he term ‘crime of viol ence’ 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 us e or attempted use of physical force . . . .”). All of these provisions include the term “phys ical force,” and one might assume that the term means the same thing in each instance. But that assu mption 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 C ourt noted that the word “force” has always had a specialized meani ng within legal parlance: “its use in describing one of the elements of the common-law crime of batte ry, which consisted of the intentional application of unlawful force ag ainst 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 th e statutory definition of “violent” felony. “Even by itself,” the Court noted, “the wo rd ‘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 n oun ‘felony,’ its connotation of st rong physical force is even clearer.” Id. Thus, as used in § 924(e)(2)(B)(i), the word “force” mean s “violent force.” The Court faced a similar i ssue 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. § 92 2(g)(9), which makes it a crime for a person who has been convic ted 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 atte mpted use of physical force, or the threatened use of a dead ly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim15 shares a child in common, by a pers on 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, pare nt, or guardian of the victim. 18 U.S.C. § 921(a)(33)(A). The government alleged that Mr. Cas tleman’s misdemeanor crime of domestic violence (i.e., his predicate crime for a conv iction under § 922(g)) was a conviction in 2001 for “‘intentionally or kn owingly 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. Castle man and the Sixth Circuit affirmed. Id. The Supreme Court granted certiorari and re versed. In so doing, the Court applied the exact argument th at 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 cr ime of domestic violence.’” Id . at 1410. It distinguished Johnson I as follows:
In Johnson, we considered whether a batte ry conviction was a “violent felony” under the Armed Career Crim inal 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 th e crime of battery was “satisfied by even the slightest offensive touching.” 559 U.S., at 139, 130 S. Ct. 1265 (citing 3 W. Blackstone, Commentar ies 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 “f orce” into ACCA's definition of a16 “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 fro m 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, 1 30 S. Ct. 1265. But here, the common-law meaning of “forc e” 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,’” wh ich “is a term of art encompassing acts that one might not characterize as ‘viole nt’ in a nondomestic context.” Id. at 1411 (internal citations omitted) (quoting Johnson I , 559 U.S. at 140). Turning to the Tennessee stat ute, the Court held that it was divisible, applied the modified categorical approach, and determined that Mr. Cas tleman pled guilty to having “intentionally or knowingly cause[d] bodily in jury 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 cu t, abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impair ment 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 caus e bodily injury without applying force in the common-law sense.” 6 Id. at 1415. Accordingly, the C ourt held that Mr. Castleman’s

6 The Court noted that Justice Scalia, in hi s concurrence, believed that the forms of injury listed in the relevant Tennessee st atute “necessitate[d] violent force, under Johnson’s definition of that phrase.” Id. In response, the majority stated, “whether or not17 conviction under Tenn. Code A nn. § 39-11-106(a)(2) did qualify as a misdemeanor crime of domestic violence unde r 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 statut e’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 situa tion 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” an d “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 § 92 4(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 c ontain 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 ad jective ‘violent’ is a ttached to the noun ‘felony,’ its connotation of strong ph ysical 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 ne cessitate force in the common-law sense.” Id.18 definition. See § 924(c)(3) (“the term ‘crime of vi olence’ means an offense that is a felony and . . . .” (emphasis added)). Thus, for virtually the same re asons 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 Hobb s Act robbery can be committed with mere offensive touching, a degree of force below th at which is required of § 924(c), and that it therefore does not qualify as a “crime of viol ence” under § 924(c)(3)(A). We disagree. While Mr. Melgar-Cabrera is correct in his a ssertion that Hobbs Act robbery is defined as common-law robbery that affects interstate commerce, see United States v. Peterson , 236 F.3d 848, 851 (7 th 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. 19 58), 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 for ce 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 valu e whatsoever”); 4 William Blackstone, Commentaries *241 (defining robbery as “the felonious and forcible taking, from the person of anot her, of goods or m oney 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.1 862) (“The property must be taken by violence to the person, which mean s 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 pr operty from the person of anot her, or in the person's presence, by violence or intimidation”); id. at 717 (defining “physical force” as “[f]orce consisting in a phys ical 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 statut e that tracked the elements of common-law robbery) qualified as a “vio lent 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 th at 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 Ac t) 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’” an d 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 128220 (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 constitu te 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 appli cation 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 di rectly (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 fo rce 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 issu e 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 whet her the causation of “bodily injury,” a term defined broadly under Tennesse e law, would “necessitate violent force under Johnson's definition of that phrase” in ACCA. 134 S. Ct. at 1414. But the Court's formal reserva tion 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 for ce clause, § 924(e)(2)(B)(i). Indeed, the Court relied significantly on Johnson in rejecting a proffered limitation21 on the term “physical force.” See Castleman , 134 S. Ct. at 1414 (“[A]s we explained in Johnson , ‘physical force’ is simp ly ‘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 cau se bodily injury without using force ‘capab le of’ producing that re sult”). Accordingly, by applying the combination of Johnson and Castleman , we conclude that ACCA’s phrase “use of physical forc e” 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 th e 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 robb ery by putting someone in fear of injury does not necessarily constitute the threat ened use of physical force be cause 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 Hobb s Act necessarily cons titutes 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 Ci r. 2017), we held that Hobbs Act robbery was not a “crime of violence” unde r 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 o ffense is a crime of violence if it “has as an element the use, attempted use, or threatened use of ph ysical 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 element22 Accordingly, we affirm.

the use, attempted use, or threatened use of physical force against the person or property of another” (em phasis added)). O’Connor pointed out this distinction in its holding and limited it accordingly: “There is nothing incongruous about hol ding that Hobbs Act robbery is a crime of violence for purpose s of 18 U.S.C. § 924(c)(3)(A), which includes force against a person or property, but not fo r 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 betw een our opinion here and O’Connor

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