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 felony 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 This order and judgment is not binding precedent, except under the doctrines 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 judicata, and collateral estoppel. It may be cited, however, for 

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. ** After examining the briefs and appellate record, this 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 Court
2 

household member inflicting great bodily harm”—are not violent felonies under the 

ACCA. We have appellate jurisdiction under 18 U.S.C. § 3742(a) and 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 conviction under the statute qualifies as a crime of 

violence under United State Sentencing Guideline § 4B1.2.1

 Id. at 538-39. This court 

denied a petition for rehearing en banc in this 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 qualify as violent felonies under the ACCA 

and his sentence must stand. Aplt. 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 consideration or an intervening Supreme Court decision that 

is contrary to or invalidates 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 for guidance under another in determining 

whether a conviction qualifies as a violent felony.” United States v. Ramon Silva, 608 

F.3d 663, 671 (10th Cir. 2010) (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