UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. JESUS RODRIGUEZ, Defendant - Appellant. No. 17-2149 (D.C. No. 1:16-CR -01982-JAP-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , MATHESON , and EID , Circuit Judges. **

________________ _________________ Jesus Rodriguez pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The district court enhanced his sentence to 15 years in prison under the Armed Career Criminal Act (“ACCA” ), 18 U.S.C. § 924(e), finding that he had been convicted of three prior violent fe lony offenses that qualified him for the enhancement. Mr. Rodriquez challenges his sentence on appeal, arguing that two of the prior offenses, both for violating N.M.S.A. § 30-3-16(C)—“aggravated battery against a

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
** After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### February 13, 2018
Elisabeth A. Shumaker Clerk of Court2 household member inflicting great bodily harm”—are not violent felonies under the ACCA. We have appellate jurisdiction under 18 U.S.C. § 3742(a) a nd 28 U.S.C. § 1291.
In United States v. Ontiveros , 875 F.3d 533 (10th Cir. 2017), this court held that a Colorado statute which required serious bodily injury could not be violated without the use of physical force and therefore a convic tion under the statute qua lifies as a crime of violence under United State Se ntencing Guideline § 4B1.2. 1 Id. at 538-39. This court denied a petition for rehearing en banc in th is case on January 2, 2018, and the mandate issued on January 10, 2018. On appeal, Mr. Rodriguez concedes that, based on Ontiveros , his convictions under the comparable New Mexico statute qu alify as violent felonies under the ACCA and his sentence must stand. Ap lt. Br. at 6-7. He contends Ontiveros was wrongly decided and raises the issue to preserve it for further review. Id. “[A]bsent en banc consider ation or an intervening Supreme Court decision that is contrary to or invalida tes our previous analysis,” United States v. White , 782 F.3d

1 Given the “similarity in language between the ACCA and [the Sentencing Guidelines]” defining “violent felony” and “crime of violence,” respectively, we may “look[] to precedent under one provision fo r guidance under another in determining whether a conviction qualifie s as a violent felony.” United States v. Ramon Silva , 608 F.3d 663, 671 (10th Cir. 20 10) (quotations omitted).3 1118, 1126-27 (10th Cir. 2015)(quotations omitted), this court’s decision in
Ontiveros binds this panel. We therefore affirm Mr. Rodriguez’s sentence.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge