PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

ABASI S. BAKER, 

 Defendant - Appellant.

No. 20-3062 

_________________________________ 

Appeal from the United States District Court 

for the District of Kansas 

(D.C. Nos. 2:16-CV-02460-JWL & 

2:11-CR-20020-JWL-1) 

_________________________________ 

Howard A. Pincus, Assistant Federal Public Defender (Virginia L. Grady, Federal Public 

Defender, with him on the briefs), Denver, Colorado for Defendant-Appellant 

Daniel N. Lerman, Attorney (Stephen R. McAllister, former United States Attorney, 

District of Kansas, James Brown and Jared Maag, Assistant United States Attorneys, 

District of Kansas; Nicholas L. McQuaid, Acting Assistant Attorney General; and Robert 

A. Zink, Acting Deputy Assistant Attorney General; Kenneth A. Polite, Jr., Assistant 

Attorney General, and Lisa H. Miller, Deputy Assistant Attorney General, with him on 

the briefs), United States Department of Justice, Criminal Division, Appellate Section, 

Washington, DC, for Appellee 

_________________________________ 

Before HARTZ, HOLMES, and EID, Circuit Judges. 

_________________________________ 

HOLMES, Circuit Judge. 

_________________________________ 

FILED

United States Court of Appeals

Tenth Circuit

September 26, 2022

Christopher M. Wolpert

Clerk of Court

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Defendant-Appellant Abasi S. Baker (“Mr. Baker”) appeals from the district 

court’s denial of his second or successive motion pursuant to 28 U.S.C. § 2255, 

challenging his convictions under 18 U.S.C. § 924(c). After we authorized this 

motion based on the Supreme Court’s 2019 decision in United States v. Davis, ---

U.S. ----, 139 S. Ct. 2319, 2336 (2019), and the district court denied it, we granted 

Mr. Baker a certificate of appealability (“COA”) on the following issue: 

In light of the contention that Hobbs Act 

robbery can be accomplished by 

threatening injury to intangible 

property, was United States v. MelgarCabrera, 892 F.3d 1053, 1064-66 (10th 

Cir. 2018) (holding that Hobbs Act 

robbery qualifies as a crime of violence 

under the elements clause of 

§ 924(c)(3)(A)), wrongly decided 

because Hobbs Act robbery would not 

qualify as a crime of violence either 

categorically under § 924(c)(3)(A) or 

under § 924(c)(3)(B) after United States 

v. Davis[]? 

Order, No. 20-3062, at 1 (10th Cir., filed June 10, 2020). Rather than directly 

address this issue, however, Mr. Baker, in his supplemental opening brief,1 requests 

that we exercise our discretion to “expand” the COA to cover the following, reframed 

issue:

1

 We appointed the Office of the Federal Public Defender for the District 

of Colorado to represent Mr. Baker in his appeal, pursuant to 18 U.S.C. 

§ 3006A(a)(2)(B). See Aplt.’s Combined Opening Br. and Appl. for a COA; Order, 

No. 20-3062 at 2 (10th Cir., filed June 10, 2020). We also established the parties’ 

briefing schedule and specifically ordered Mr. Baker’s counsel to file a supplemental 

opening brief within sixty days of our order, which counsel did.

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Is Mr. Baker entitled to § 2255 relief 

because (a) the offenses relating to Hobbs 

Act robbery that underlie his § 924(c) 

convictions could have been committed 

by a threat to property; (b) the modified 

categorical approach does not rule out this 

possibility; (c) this court has no binding 

precedent that prevents it from holding 

that Hobbs Act robbery by a threat to 

property (whether tangible or intangible) 

does not satisfy § 924(c)’s force [i.e., 

elements] clause;[2] and (d) he can show 

his convictions rest on § 924(c)’s 

unconstitutional residual clause? 

Aplt.’s Suppl. Opening Br. at 2. In other words, Mr. Baker effectively attempts: (1) 

to argue that Hobbs Act robbery, when accomplished through threats to injure any 

property—tangible or intangible—is not a crime of violence under § 924(c)(3)(A), 

and (2) our decision in United States v. Melgar-Cabrera, where we held Hobbs Act 

robbery categorically qualifies as a crime of violence under § 924(c)(3)(A), see 892 

F.3d 1053, 1060 n.4 (10th Cir. 2018), does not bar his argument because it is 

inapposite. 

Moreover, during the pendency of this appeal, the Supreme Court decided 

United States v. Taylor, --- U.S. ----, 142 S. Ct. 2015 (2022), holding that attempted

Hobbs Act Robbery is not a crime of violence. We ordered supplemental briefing in 

light of Taylor, see Order, No. 20-3062, at 1 (10th Cir., filed June 23, 2022), and in 

Mr. Baker’s brief, he requests that we either summarily vacate his § 924(c) 

2 As will become apparent from our discussion, courts and litigants alike 

refer synonymously to the language of § 924(c)(3)(A) as either the “elements or force 

clause.” Melgar-Cabrera, 892 F.3d at 1060. 

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conviction charged in Count 11—which is predicated on his conviction for attempted

Hobbs Act robbery—or remand the case to the district court to allow him to amend 

his § 2255 motion to make a Taylor-like argument. Aplt.’s Suppl. Br. Filed PostTaylor at 5.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s 

dismissal of Mr. Baker’s § 2255 motion, deny Mr. Baker’s request to expand the 

COA and dismiss that portion of this matter, and remand the case to allow the 

district court to determine in the first instance whether it is lawful and otherwise 

appropriate to permit Mr. Baker to amend his § 2255 motion to make a Taylor-like 

argument as to Count 11.

I

In March 2011, Mr. Baker was charged with numerous federal crimes in a 

multi-count indictment, including seven counts of Hobbs Act robbery, in violation of 

18 U.S.C. § 1951; seven counts of using a firearm during and in relation to a crime of 

violence (i.e., the Hobbs Act robberies), in violation of 18 U.S.C. § 924(c); and seven 

counts of being a convicted felon in possession of a handgun, in violation of 18 

U.S.C. § 922(g). See generally United States v. Baker, 713 F.3d 558, 559 (10th Cir. 

2013); see also Case No. 2:11-cr-20020-JWL, Doc. 16 (Indictment, filed Mar. 29, 

2011).3

 Count 11 specifically charged Mr. Baker with a violation of § 924(c) based 

3 Mr. Baker has not included documents from his initial prosecution, such 

as the indictment and jury verdict, in the record on appeal. We take judicial notice of 

these documents from the district court’s docket. See, e.g., Bunn v. Perdue, 966 F.3d 

1094, 1096 n.4 (10th Cir. 2020) (“Some of the relevant . . . filings in district court . . . 

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on a crime-of-violence predicate of attempted Hobbs Act robbery. See Case No. 

2:11-cr-20020-JWL, Doc. 16, at 6; Aplt.’s Suppl. Br. Filed Post-Taylor at 5. 

The charges related to a series of armed robberies in the Kansas City, Kansas, 

area in early 2011. See Baker, 713 F.3d at 560. Following a jury trial, Mr. Baker 

was convicted on all counts, see Case No. 2:11-cr-20020-JWL, Doc. 55 (Jury 

Verdict, filed Sept. 15, 2011), and he was sentenced to a total term of imprisonment 

of 164 years, see id., Doc. 69 (Judgment, entered Jan. 18, 2012). We affirmed 

Mr. Baker’s convictions. See Baker, 713 F.3d at 563. 

Mr. Baker brought his first collateral challenge to his convictions under 28 

U.S.C. § 2255 in 2014, but it was unsuccessful. See Case No. 2:11-cr-20020-JWL, 

Doc. 207 (Dist. Ct. Mem. & Order, entered June 17, 2015) (denying Mr. Baker’s 

petition to vacate, set aside, or correct his sentence). In 2016, Mr. Baker moved for 

authorization to file a second or successive § 2255 motion predicated on the 

purported invalidity of § 924(c)(3)(B), that is, the section’s “residual clause.” See 

Appl. for Leave to File a Successive Mot. under 28 U.S.C. § 2255, No. 16-3131 (10th 

Cir., filed May 20, 2016). Following United States v. Davis, in which the Supreme 

Court invalidated § 924(c)’s residual clause as unconstitutionally vague, we 

authorized Mr. Baker to file a successive § 2255 motion under § 2255(h)(2), as it

would “rel[y] on ‘a new rule of constitutional law, made retroactive to cases on 

collateral review by the Supreme Court, that was previously unavailable.’” R. at 29 

were not included in the record on appeal, but they are accessible from the district 

court docket. We may therefore take judicial notice of the filings.”).

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(10th Cir. Order, filed Jan. 8, 2020) (citing In re Mullins, 942 F.3d 975, 979 (10th 

Cir. 2019)). In the district court, Mr. Baker challenged the validity of his § 924(c)

convictions. Id. at 33–42 (Suppl. Br., filed Feb. 27, 2020). He argued that, given 

that Davis rendered the residual clause “now void,” the only possible foundation for 

declaring his Hobbs Act robbery convictions to be crimes of violence was the 

elements clause, and that “Hobbs Act robbery is not ‘categorically’ a crime of 

violence under the elements clause.” Id. at 35, 38. 

The district court denied Mr. Baker’s motion. Id. at 61–62 (Mem. & Order, 

entered Mar. 25, 2020). The court noted that we have “squarely held that Hobbs Act 

robbery is categorically a crime of violence under the elements clause of 

§ 924(c)(3)(A) because that clause requires the use of force and the force element in 

Hobbs Act robbery ‘can only be satisfied by violent force.’” Id. (quoting MelgarCabrera, 892 F.3d at 1064–65). The court also acknowledged that Mr. Baker 

“argue[d] that Hobbs Act robbery is not a crime of violence because it can be 

accomplished by damaging property,” and that he cited United States v. Bowen, 936 

F.3d 1091 (10th Cir. 2019), for support. Id. at 62. However, Bowen, the district 

court explained, “involved the relationship between 18 U.S.C. § 924(c)(3) and 

witness retaliation—not Hobbs Act robbery”; moreover, Melgar-Cabrera remained 

“binding precedent,” and Mr. Baker failed to show how “the Supreme Court’s 

invalidation of § 924(c)(3)’s [distinct] residual clause [i.e., in Davis] . . . change[d] 

Hobbs Act robbery’s status as a crime of violence.” Id. The court subsequently 

denied Mr. Baker’s request for a COA. Id. at 66–67 (Mem. & Order, entered Apr. 

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10, 2020) (declining to issue a COA because “[r]easonable jurists could not debate 

the court’s decision to deny Mr. Baker’s petition in light of the fact that Hobbs Act 

robbery, under Tenth Circuit precedent, is categorically a crime of violence under the 

elements clause of § 924(c)(3)(A)”). 

On appeal, Mr. Baker filed a pro se opening brief and application for a COA, 

which we granted. See Aplt.’s Combined Opening Br. and Appl. for a COA; Order, 

No. 20-3062, at 1 (10th Cir., filed June 10, 2020). “In accordance with § 2255(c),”

we granted a COA “as to the following issue”: 

In light of the contention that Hobbs Act 

robbery can be accomplished by 

threatening injury to intangible 

property, was United States v. MelgarCabrera[] (holding that Hobbs Act 

robbery qualifies as a crime of violence 

under the elements clause of § 

924(c)(3)(A)), wrongly decided 

because Hobbs Act robbery would not 

qualify as a crime of violence either 

categorically under § 924(c)(3)(A) or 

under § 924(c)(3)(B) after United States 

v. Davis[]? 

Order, No. 20-3062, at 1 (10th Cir., filed June 10, 2020). In other words, by granting 

the COA, we invited a reexamination of the validity and scope of our holding in 

Melgar-Cabrera—more specifically, its crime-of-violence holding concerning the 

elements clause, § 924(c)(3)(A))—against the backdrop of the Supreme Court’s 

decision in Davis, which struck down the other potential basis for a § 924(c)(3)

crime-of-violence determination, the residual clause, § 924(c)(3)(B). 

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Yet, as discussed above, Mr. Baker in his supplemental opening brief 

effectively sidesteps the narrow question as to which we granted a COA—centered 

on the vitality vel non of Melgar-Cabrera’s holding as applied to threats to injure 

intangible property—and asks that we exercise our discretion to “expand” the COA 

to cover his broader argument that Hobbs Act robbery can be accomplished by 

threatening injury to any property, thus it does not satisfy § 924(c)’s elements clause. 

Aplt.’s Suppl. Opening Br. at 2. Particularly, Mr. Baker avers that “Melgar-Cabrera

does not prevent this court from accepting Mr. Baker’s position and neither does any 

other decision of this court.” Id. at 11. For support, Mr. Baker points to United 

States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017), and United States v. Bowen, 936 

F.3d 1091, two cases from our Court that—together with the text from 

§ 1951(b)(1)—ostensibly “lead[] to the unavoidable conclusion that Hobbs Act 

robbery by a threat to property (and an attempted robbery by such means) is not a 

crime of violence under § 924(c)(3)’s force clause.” Id. at 14.

Furthermore, in June 2022, the Supreme Court decided United States v. Taylor, 

--- U.S. ----, 142 S. Ct. 2015, 2020 (2022), holding that attempted Hobbs Act robbery 

is not a crime of violence. We ordered the parties to submit supplemental briefing 

regarding Taylor’s implications (if any) for this case. Order, No. 20-3062, at 1 (10th 

Cir., filed June 23, 2020). Notably, in his supplemental briefing, Mr. Baker does not 

ask us to expand the COA to address his one § 924(c) conviction that is predicated on 

the crime of attempted Hobbs Act robbery, Count 11. Instead, in light of Taylor, 

Mr. Baker requests that we either summarily vacate his conviction on Count 11 or 

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remand the case to the district court to allow him to amend his § 2255 motion to 

make a Taylor-like argument. See Aplt.’s Suppl. Br. Filed Post-Taylor at 5–10.

II

Mr. Baker’s § 2255 motion challenges his § 924(c) convictions. “A motion to 

vacate a sentence under 28 U.S.C. § 2255 ‘is generally the exclusive remedy for a 

federal prisoner seeking to “attack[] the legality of detention.”’” United States v. 

Harris, 844 F.3d 1260, 1263 (10th Cir. 2017) (alteration in original) (quoting Brace 

v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011)). “On appeal from the denial 

of a § 2255 motion,” where “the district court does not hold an evidentiary hearing, 

but rather denies the motion as a matter of law upon an uncontested trial record, our 

review is strictly de novo.” Bowen, 936 F.3d at 1096–97 (first quoting United States 

v. Snyder, 871 F.3d 1122, 1125 (10th Cir. 2017); and then quoting United States v. 

Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015)); accord United States v. Pullen, 913 

F.3d 1270, 1275 (10th Cir. 2019).

Mr. Baker also requests that we expand the COA. “[C]ircuit courts, including 

our own, have recognized that they possess the authority to expand the COA to cover 

uncertified, underlying constitutional claims asserted by an appellant.” United States 

v. Shipp, 589 F.3d 1084, 1087 (10th Cir. 2009). “Expansion of the certificate of 

appealability is merited upon a showing that ‘reasonable jurists would find the 

district court’s assessment of the constitutional claims debatable or wrong.’” 

Hancock v. Trammel, 798 F.3d 1002, 1025 (10th Cir. 2015) (quoting Slack v. 

McDaniel, 529 U.S. 473, 484 (2000)). 

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More specifically, because the COA inquiry “is not coextensive with a merits 

analysis,” the “only question” at the COA stage “is whether the applicant has shown 

that ‘jurists of reason could disagree with the district court’s resolution . . . or that 

jurists could conclude the issues presented are adequate to deserve encouragement to 

proceed further.’” Buck v. Davis, --- U.S. ----, 137 S. Ct. 759, 773 (2017) (quoting 

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)). In fact, if a court of appeals “first 

decid[es] the merits of an appeal, and then justif[ies] its denial of a COA based on its 

adjudication of the actual merits, it is in essence deciding an appeal without 

jurisdiction.” Id. (quoting Miller-El, 537 U.S. at 336–37).

III

A

Section 924(c)(1)(A) mandates a minimum five-year sentence for anyone 

convicted of “us[ing] or carr[ying] a firearm” “during and in relation to any crime of 

violence.” 18 U.S.C. § 924(c)(1)(A)(i); see United States v. King, 632 F.3d 646, 650 

(10th Cir. 2011) (“Section 924(c)(1)(A) imposes a mandatory minimum five-year 

sentence . . . .”). The statute defines “crime of violence” in two ways: the term 

“means an offense that is a felony” and that either (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.” 18 U.S.C. § 924(c)(3). 

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In United States v. Davis, the Supreme Court held that clause (B)—the 

“residual clause”—is unconstitutionally vague. 139 S. Ct. at 2336. After Davis, 

then, a criminal conviction qualifies as a predicate “crime of violence” under 

§ 924(c) only if it meets the terms of clause (A)—the “elements clause”—that is, only 

if it “has as an element the use, attempted use, or threatened use of physical force 

against the person or property of another.” Id. at 2324 (quoting § 924(c)(3)).

“To prevail on appeal, [a petitioner] must establish that his conviction[s] 

cannot be sustained under § 924(c)’s elements clause.” United States v. Muskett, 970 

F.3d 1233, 1238 (10th Cir. 2020), cert. denied, 147 S. Ct. 1710 (2021). To determine 

whether a given crime qualifies under § 924(c)(3)’s elements clause, “we apply the 

categorical approach,” which looks “only to the fact of conviction and the statutory 

definition of the prior offense, and do[es] not generally consider the particular facts 

disclosed by the record of conviction.” Bowen, 936 F.3d at 1102 (first citing United 

States v. Ontiveros, 875 F.3d 533, 535 (10th Cir. 2017); and then quoting United 

States v. Serafin, 562 F.3d 1105, 1107–08 (10th Cir. 2009)); accord Muskett, 970 

F.3d at 1239. “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 [a] particular offender.” Melgar-Cabrera, 892 F.3d at 

1061 (omission and first alteration in original) (quoting Serafin, 562 F.3d at 1107–

08). 

We compare the scope of conduct covered by the predicate crime’s elements 

with § 924(c)(3)(A)’s definition of “crime of violence”—and, crucially, “we 

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‘presume that [an offender’s] conviction rested upon nothing more than the least of 

the acts criminalized, and then determine whether even those acts are encompassed 

by [§ 924(c)(3)(A)].’” Bowen, 936 F.3d at 1102 (quoting Moncrieffe v. Holder, 569 

U.S. 184, 190–91 (2013)); see Muskett, 970 F.3d at 1239 (“Under th[e] framework 

[of the categorical approach], we must first identify the minimum force required to 

commit the [offense at issue], and then ‘determine if that force categorically fits the 

definition of physical force’ [in § 924(c)(3)(A)].” (quoting Ontiveros, 875 F.3d at 

535–36)). 

In this appeal, we are concerned with whether Hobbs Act robbery categorically 

qualifies as a crime of violence under § 924(c)(3)(A). Hobbs Act robbery is defined 

as follows: 

Whoever in any way or degree 

obstructs, delays, or affects commerce 

or the movement of any article or 

commodity in commerce, by robbery or 

extortion or attempts or conspires so to 

do, or commits or threatens physical 

violence to any person or property in 

furtherance of a plan or purpose to do 

anything in violation of this section 

shall be fined under this title or 

imprisoned not more than twenty years, 

or both.

18 U.S.C. § 1951(a). The statute further defines “robbery” as 

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 

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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. 

 

Id. § 1951(b)(1).

B 

The original issue as to which we granted a COA was, in pertinent part, whether 

“[i]n light of the contention that Hobbs Act robbery can be accomplished by threatening 

injury to intangible property, was [Melgar-Cabrera] . . . wrongly decided because Hobbs 

Act robbery would not qualify as a crime of violence . . . categorically under 

§ 924(c)(3)(A).” Order, No. 20-3062, at 1 (10th Cir., filed June 10, 2020) (emphasis 

added). And as we have explained above, Mr. Baker further requests that “we expand the 

COA to include” the reframed question he poses: that is, whether Hobbs Act robbery is 

not a crime of violence because the offenses involving Hobbs Act robbery that underlie 

his § 924(c) convictions could have been committed by a threat to any property, which 

purportedly does not satisfy § 924(c)’s elements clause. Aplt.’s Suppl. Opening Br. at 3. 

He writes that “[w]hat is true to threats to tangible property is also true as to threats to 

intangible property.” Id. at 27; see also id. at 28 (“[A] threat to damage either tangible or 

intangible property can be made without the threat of the violent force needed to satisfy 

§ 924(c)’s force clause” (emphasis added)). 

Mr. Baker does not opt to challenge the vitality of Melgar-Cabrera. Instead, he 

suggests that Melgar-Cabrera’s holding is inapposite and contends that, regardless of that 

case, his offenses of Hobbs Act robbery are not crimes of violence; accordingly, they 

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would not support his convictions for violating 18 U.S.C. § 924(c). Id. at 10. 

Specifically, he writes that “Hobbs Act robbery (or its attempt) by a threat to any 

property—whether tangible or intangible—is not a crime of violence of § 924(c).” Id. at 

10–11. And, as for Melgar-Cabrera, Mr. Baker thinks “Melgar-Cabrera did not consider 

the argument” he makes on appeal: that decision, he avers, “merely rejected other 

arguments for why Hobbs Act robbery does not satisfy the force clause.” Id. at 10. 

Having carefully considered Mr. Baker’s arguments, however, we are not 

persuaded. We conclude that Melgar-Cabrera is controlling here—both as to the original 

issue regarding which we granted a COA, and as to the question Mr. Baker presents in his 

expansion request. As to the expansion request, we need not adjudicate the merits of Mr. 

Baker’s reframed question—and indeed cannot properly do so, see Buck, 137 S. Ct. at 

773—in order to determine that the rejection of this question is not reasonably debatable 

under Melgar-Cabrera. With that analytical limitation recognized, we conclude that 

Melgar-Cabrera’s holding is fatal to both his appeal and his request for an expansion of 

the COA. 

In Melgar-Cabrera, we were faced with the question of whether Hobbs Act 

robbery is a crime of violence under § 924(c)’s elements clause, and we resolved it

clearly, “employ[ing] the categorical approach,” to “conclu[de] that Hobbs Act 

robbery is a crime of violence under the elements clause of § 924(c)(3).” 892 F.3d at

1060 n.4, 1061 (emphasis added). In other words, we concluded in Melgar-Cabrera

that Hobbs Act robbery is categorically a crime of violence. Id. at 1061. That we 

reached this crime-of-violence determination under a categorical approach is 

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important for present purposes because it means that, in effect, we concluded that 

every act—including the least of the acts—criminalized by Hobbs Act robbery 

constitutes a crime a violence. See, e.g., Moncrieffe, 569 U.S. at 191 (noting that in 

the categorical approach “we must presume that the conviction” was grounded on 

“[nothing] more than the least of th[e] acts” that the statute criminally punished

(alteration in original) (quoting Johnson v. United States, 559 U.S. 133, 137 (2010))). 

In our subsequent published decisions, we have left no doubt regarding the 

categorical scope of our holding in Melgar-Cabrera. In United States v. Jefferson

(Jefferson I), for instance, we observed that Melgar-Cabrera “decided Hobbs Act 

robbery is categorically a ‘crime of violence’ under § 924(c)(3)(A)’s elements clause 

because the clause requires the use of violent force, i.e., force capable of causing 

physical pain or injury to another person, and the force element in Hobbs Act robbery 

can be satisfied only by violent force.” 911 F.3d 1290, 1296 (10th Cir. 2018), cert. 

granted, judgment vacated in part on other grounds, 140 S. Ct. 861 (2020). We 

reiterated our characterization of Melgar-Cabrera’s holding after the Supreme Court 

remanded the same case (i.e., Jefferson) for reasons not bearing on Melgar-Cabrera. 

See United States v. Jefferson (Jefferson II), 989 F.3d 1173, 1175 (10th Cir. 2021) 

(“This [remand] language does not open up the entire case for reconsideration. 

Instead, it requires us to consider only the applicability of the First Step Act. As a 

result, our only job on remand is to determine whether the First Step Act affords 

Jefferson relief . . . .”). Specifically, Jefferson II referred to “our holding in . . . 

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Melgar-Cabrera . . . that Hobbs Act robbery is categorically a crime of violence 

under . . . § 924(c)(3)(A).” Id. at 1175 n.1.4

4 Likewise, numerous unpublished panel decisions from this Court—

though not binding—have characterized Melgar-Cabrera’s holding as categorical. 

See, e.g., United States v. Nguyen, 845 F. App’x 791, 792 (10th Cir. 2021) 

(unpublished) (citing Melgar-Cabrera as holding “that the force element of a Hobbs 

Act robbery ‘[can] only be satisfied by violent force,’ and, therefore, Hobbs Act 

robbery is categorically a crime of violence under the elements clause of 

§ 924(c)(3)(A)” (quoting United States v. Nguyen, 744 F. App’x 550, 552 (10th Cir. 

2018) (unpublished))); United States v. Hendrickson, 831 F. App’x 421, 422–23 

(10th Cir. 2020) (unpublished) (“Defendant maintains that under Davis, he is 

innocent of the § 924(c) charge because Hobbs Act robbery is not categorically a 

crime of violence. We previously rejected this argument in United States v. MelgarCabrera, where we explicitly held that Hobbs Act robbery is categorically a crime of 

violence under § 924(c)(3)(A)—the elements clause. And despite numerous 

arguments like Defendant’s, neither we nor the Supreme Court have reversed 

Melgar-Cabrera.” (citations omitted)); United States v. Toki, 822 F. App’x 848, 853 

(10th Cir. 2020) (unpublished) (“[I]n Melgar-Cabrera, we categorically held that 

Hobbs Act robbery is a crime of violence based on the elements of the offense. . . . 

We conclude that under our binding precedent in Melgar-Cabrera, the 

constitutionality of [the defendants’] § 924(c) convictions predicated on Hobbs Act 

robbery is not reasonably debatable.” (citations omitted)), cert. granted, judgment 

vacated on other grounds, 142 S. Ct. 57 (2021) and 142 S. Ct. 58 (2021); United 

States v. Robinson, 757 F. App’x 781, 783 (10th Cir. 2019) (unpublished) 

(“Appellant’s argument is that Hobbs Act robbery is not a qualifying crime of 

violence under § 924(c). However, this argument is precluded by our decision in

United States v. Melgar-Cabrera, . . . in which we held that Hobbs Act robbery is 

categorically a crime of violence because it includes as an element the use or 

threatened use of violent force, and thus the invalidation of the separate residual 

clause does not change this crime’s status as a crime of violence.”); United States v. 

Pasley, 731 F. App’x 819, 821 (10th Cir. 2018) (unpublished) (noting our holding in 

Melgar-Cabrera “that Hobbs Act robbery is categorically a crime of violence under 

§ 924(c)(3)(A)”); cf. United States v. Myers, 786 F. App’x 161, 162–63 (10th Cir. 

2019) (unpublished) (“[E]ven if Davis ‘appeared to suggest’ that Hobbs Act robbery 

might not be a crime of violence under § 924(c)(3)(A), and we could reconsider 

Melgar-Cabrera, we would reach the same conclusion: Hobbs Act robbery is a crime 

of violence under the elements clause of § 924(c) . . . .”).

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Additionally, Mr. Baker’s own admissions on appeal make clear that, no 

matter his efforts, his appeal and request to expand the COA cannot overcome

Melgar-Cabrera’s holding. Mr. Baker acknowledges that we should employ the 

categorical approach in determining whether Hobbs Act robbery is a “crime of 

violence” and that Hobbs Act robbery is not a divisible crime. See Aplt.’s Suppl. 

Opening Br. at 17 (“The determination of whether Hobbs Act robbery satisfies the 

[elements] clause is made without respect to the particular facts of Mr. Baker’s case. 

Instead, this court employs the familiar categorical approach.”); id. at 18–19 (“The 

modified categorical approach cannot be used as to Hobbs Act robbery. The Hobbs 

Act is divisible between robbery and extortion . . . . But Hobbs Act robbery is not 

further divisible.”). In effect, then, Mr. Baker acknowledges that either Hobbs Act 

robbery is a crime of violence, or it is not, as judged by the minimum conduct made 

culpable by its terms. See Bowen, 936 F.3d at 1102; Muskett, 970 F.3d at 1239. 

Mr. Baker’s admissions are incompatible with the notion that Melgar-Cabrera

somehow left untouched a separate class of Hobbs Act robberies involving threats 

against property that we may now assess with fresh eyes to determine if that class of 

crimes qualifies as a crime of violence. 

To be sure, Mr. Baker says that we can avoid Melgar-Cabrera by recognizing 

that the case did not specifically grapple with his arguments here. See, e.g., Aplt.’s 

Suppl. Opening Br. at 28, 30–31. As his reasoning goes, because Melgar-Cabrera 

did not consider the possibility that Hobbs Act robbery can be accomplished through 

threats or “fear of injury” directed towards intangible or tangible property, we can 

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hold that Hobbs Act robberies committed by such threats are not qualifying crimes of 

violence under § 924(c)(3)(A). See id. at 38–39 (explaining that “Melgar-Cabrera

did not address an argument based on a threat to intangible property” and “this court 

did not resolve the issue Mr. Baker raises here in Melgar-Cabrera”); Aplt.’s Reply 

Br. at 6, 10 (claiming that, because Melgar-Cabrera did not consider an argument 

“that involved the fear of injury to property,” it does not constitute binding precedent 

on that particular argument). However, we are constrained to reject this line of 

reasoning. 

“[U]nless and until the holding of a prior decision is overruled by the Supreme 

Court or by the en banc court, that holding is the law of this Circuit regardless of 

what might have happened had other arguments been made to the panel that decided 

the issue first.” Thompson v. Weyerhaeuser Co., 582 F.3d 1125, 1130 (10th Cir. 

2009) (alteration in original and capitalization added) (quoting Cohen v. Office 

Depot, Inc., 204 F.3d 1069, 1076 (11th Cir. 2000)); see also United States v. 

Manzanares, 956 F.3d 1220, 1225 (10th Cir. 2020) (“[W]e cannot overrule the 

judgment of another panel of this court. We are bound by the precedent of prior 

panels absent en banc reconsideration or a superseding contrary decision by the 

Supreme Court.” (quoting In re Smith, 10 F.3d 723, 724 (10th Cir. 1993) (per 

curiam))), cert. denied, 141 S. Ct. 1396 (2021). In other words, the fact that the 

defendant in Melgar-Cabrera did not provide the same or similar argument as 

Mr. Baker’s argument here is of no moment; we are bound to follow Melgar-Cabrera

absent a contrary decision by the Supreme Court or en banc reconsideration of 

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Melgar-Cabrera. And on that point, Mr. Baker does not contend that any Supreme 

Court decision, nor an en banc decision of this Court, abrogates Melgar-Cabrera’s 

holding. 

Furthermore, Mr. Baker’s reliance on United States v. Bowen and United 

States v. O’Connor to bolster his position is unavailing. See Aplt.’s Suppl. Opening 

Br. at 10–13. Mr. Baker claims that, under those two decisions, his specific 

“convictions for Hobbs Act robbery . . . are not crimes of violence under § 924(c)’s 

force clause.” Id. at 10. Those two decisions, Mr. Baker avers, establish that Hobbs 

Act robbery is not categorically a crime of violence under § 924(c)’s elements clause 

“because it can be committed by a threat to harm property that does not involve a 

threat to use violent force.” Id. at 21. 

However, as a panel of our court has persuasively reasoned, “[w]e already 

have stated that Bowen does not call into question Melgar–Cabrera’s holding that 

Hobbs Act robbery is categorically a crime of violence.” United States v. Hopkins, 

2022 WL 2610345, at *7 (10th Cir. July 8, 2022) (unpublished) (citing Jefferson II, 

989 F.3d at 1175 n.1). “‘[I]n Bowen, we held the federal witness-retaliation statute 

. . . does not qualify as a crime of violence under § 924(c)(3)(A) because it includes 

witness retaliation through non-violent property damage,’ such as ‘spray painting a 

car.’” Id. (alteration in original and capitalization added) (omission in original) 

(quoting Jefferson II, 989 F.3d at 1175 n.1). “But the same is not true of Hobbs Act 

robbery” since it “necessarily entails the use or threatened use of violent force 

against a person or property.” Jefferson II, 989 F.3d at 1175 n.1 (emphasis omitted). 

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Thus, Bowen did not abrogate or restrict Melgar-Cabrera’s holding, and Mr. Baker’s 

reliance on Bowen is unavailing.

As to O’Connor, we observed that “[b]ecause Hobbs Act robbery encompasses 

threats to property and generic robbery excludes threats that are limited to property, 

the minimum conduct necessary to constitute Hobbs Act robbery does not 

categorically fall within generic robbery.” O’Connor, 874 F.3d at 1155. 

Accordingly, we ruled that Hobbs Act robbery is not a crime of violence under 

U.S.S.G. § 4B1.2(a)(1). Id. at 1158. In reaching that holding, we rejected the 

government’s argument that it would be “incongruous” to conclude that “Hobbs Act 

robbery constitutes a crime of violence in relation to § 924(c)(3)(A) but not U.S.S.G. 

§ 4B1.2(a)(1).” Id. We explained that the two “provisions are not mirror images” of 

each other:

The force clause under § 4B1.2(a)(1)—

the clause applicable here—provides 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.” By contrast, the 

force clause in § 924(c)(3)(A) includes 

any crime that “has as an element the 

use, attempted use, or threatened use of 

physical force against the person or 

property of another.” 

Id. (first quoting U.S.S.G. § 4B1.2(a)(1); and then quoting 18 U.S.C. § 924(c)(3)(A)). 

Thus, O’Connor found “[t]here 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. 

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§ 4B1.2(a)(1), which is limited to force against a person.” Id. Under a similar logic, 

it does not ineluctably follow that because Hobbs Act robbery is not a crime of 

violence as defined in U.S.S.G. § 4B1.2(a)(1) that it is not a crime of violence as 

defined in § 924(c)(3)(A). In sum, O’Connor, like Bowen, did not disturb our 

holding in Melgar-Cabrera as to whether Hobbs Act robbery is categorically a crime 

of violence under § 924(c)(3)(A). So, Mr. Baker’s reliance on O’Connor is 

misplaced.

* * *

Accordingly, based on the foregoing analysis, we conclude that Mr. Baker’s 

arguments are unavailing. We uphold the district court’s dismissal of Mr. Baker’s 

§ 2255 motion as to the issue upon which we granted COA—which questioned the 

vitality of Melgar-Cabrera’s holding as applied to threats to injure intangible 

property.

5

 Furthermore, applying the Supreme Court’s well-defined COA 

5 Notably, the Fourth Circuit rejected an argument that “because Hobbs 

Act robbery may be accomplished by threatening another with injury to intangible

property, such as shares of stock in a corporation, Hobbs Act robbery does not 

qualify as a crime of violence under the [elements] clause.” United States v. Mathis, 

932 F.3d 242, 265 (4th Cir. 2019). The Fourth Circuit explained that “fear of injury” 

“necessarily ‘involves the threat to use [physical] force.’” Id. at 266 (alteration in

original) (quoting United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016)); cf. 

United States v. Anglin, 846 F.3d 954, 965 (7th Cir.) (noting that a defendant’s 

argument “that a [Hobbs Act] robber[y] hypothetically could [be committed by] 

put[ting] his victim in ‘fear of injury’ without using or threatening force” was 

“contrary to [the circuit’s] precedents”), cert. granted, judgment vacated on other 

grounds, 138 S. Ct. 126 (2017). A panel of the Third Circuit similarly rejected 

defendants’ “hypotheticals” of committing Hobbs Act robbery “through fear of injury 

to intangible property,” noting that the hypotheticals “misconstrue the Hobbs Act 

robbery definition, and they misconstrue the definition of ‘physical force’ under 

Section 924(c)(3)(A).” United States v. Monroe, 837 F. App’x 898, 899–900 (3d 

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framework, we deny Mr. Baker’s request to expand the COA: he fails to persuade us 

that “reasonable jurists would find the district court’s assessment of the constitutional 

claims debatable or wrong.” Trammel, 798 F.3d at 1025 (quoting McDaniel, 529 

U.S. at 484).

C

In June 2022, the Supreme Court decided United States v. Taylor. Taylor held 

that attempted Hobbs Act robbery was categorically not a crime of violence under 

§ 924(c)(3)(A). See 142 S. Ct. at 2024. However, Taylor left no room for reasonable 

debate that the crime-of-violence status of the completed offense of Hobbs Act 

robbery was not of analytical concern there; indeed, the Court expressly 

acknowledged that the issue was not before it. See id. at 2020 (“Whatever one might 

say about completed Hobbs Act robbery, attempted Hobbs Act robbery does not 

satisfy the elements clause.”). Therefore, Taylor does not implicate our holding in 

Melgar-Cabrera, which expressly addressed completed Hobbs Act robbery. 

Taylor’s holding is nevertheless of keen interest to Mr. Baker because his 

Count 11 conviction under § 924(c) is predicated on attempted Hobbs Act robbery.

See Case No. 2:11-cr-20020-JWL, Doc. 16, at 6; Aplt.’s Suppl. Br. Filed Post-Taylor

at 5. But Mr. Baker’s problem is that Taylor has no place in this appeal.

Cir.) (unpublished), cert. denied, 142 S. Ct. 247 (2021). Moreover, in a prior 

unpublished decision, this Court specifically held that Hobbs Act robbery is a crime 

of violence, notwithstanding the defendant’s argument that it is not because Hobbs 

Act robbery encompasses creating fear of harm to intangible property. See United 

States v. Dubarry, 741 F. App’x 568, 569–70 (10th Cir. 2018) (unpublished). 

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Recall that the COA before us did not contemplate a separate and independent 

crime-of-violence analysis for the offense of attempted Hobbs Act robbery. Rather,

our COA simply asked whether a Hobbs Act robbery—without distinguishing 

between a completed or an attempted offense—which involved a threat to injure 

intangible property was categorically a crime of violence under § 924(c)(3)(A). And, 

importantly, prior to Taylor, Mr. Baker never advocated for such a separate and 

independent analysis for attempted Hobbs Act robbery. More specifically, prior to 

Taylor, though Mr. Baker mentioned that he had been convicted of attempted Hobbs 

Act robbery at numerous points in his briefing, he never made a separate argument 

for relief confined to his attempted Hobbs Act robbery conviction. See, e.g., Aplt.’s 

Suppl. Opening Br. at 14, 16–17. 

In other words, while Mr. Baker argued that the completed act of Hobbs Act 

robbery is not categorically a crime of violence, he did not suggest—as the 

government points out—that his conviction for attempted Hobbs Act robbery should

be analyzed separately on the crime-of-violence issue. See Aplee.’s Resp. Br. at 22 

n.8 (“[Mr. Baker] does not contend that there is any difference between attempted 

and completed Hobbs Act robbery for purposes of determining whether those 

predicates qualify as crimes of violence under Section 924(c)(3)(A). Rather, he 

contends that ‘Hobbs Act robbery (and its attempt) by a threat to property does not 

satisfy § 924(c)’s force clause.’” (quoting Aplt.’s Suppl. Opening Br. at 11)); see also 

Aplee.’s Resp. Br. Filed Post-Taylor at 8 (explaining that Mr. Baker did not contend 

there is any difference between attempted and completed Hobbs Act robbery for 

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purposes of the appellate issues before us). Therefore, Mr. Baker has not preserved 

such an attempt-based, crime-of-violence argument for purposes of this appeal. See 

Heard v. Addison, 728 F.3d 1170, 1175 (10th Cir. 2013) (“We do not reach 

[petitioner’s argument] in this case, however, because . . . we conclude that 

[petitioner] never raised such a claim, in his petition or otherwise, before the federal 

district court.”); Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (“[W]e 

routinely have declined to consider arguments that are not raised, or are inadequately 

presented, in an appellant’s opening brief.”). 

Notably, Mr. Baker does not argue now for an expansion of the COA in light 

of Taylor. Instead, through his supplemental briefing, Mr. Baker asks that we either 

summarily vacate his Count 11 conviction on the grounds that it is fatally infirm due 

to Taylor, or alternatively, remand the proceedings to the district court to allow him 

to amend his § 2255 motion to make a Taylor-like argument in the first instance. 

Aplt.’s Suppl. Br. Filed Post-Taylor at 5–10. Because, as we have noted, the issue of 

whether, standing alone, the offense of attempted Hobbs Act robbery is a crime of 

violence was never properly raised in this appeal—that is, we did not grant a COA 

regarding that issue—and, moreover, because Mr. Baker has failed to brief the issue

and has not sought an expansion of the COA to include the issue, we reject 

Mr. Baker’s request to summarily vacate his Count 11 conviction based on Taylor.

That said, we remand this action to the district court to determine whether it is 

legally permissible and otherwise appropriate to allow Mr. Baker to amend his 

§ 2255 motion to advance a Taylor-like argument. See, e.g., Kerr v. Hickenlooper, 

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824 F.3d 1207, 1217 (10th Cir. 2016) (“Appellate courts have ‘discretion to remand 

issues . . . to the trial court when that court has not had the opportunity to consider 

the issue in the first instance.’” (quoting Salmon Spawning & Recovery All. v. U.S. 

Customs & Border Prot., 550 F.3d 1121, 1134 (Fed. Cir. 2008))); cf. Tabor v. Hilti, 

Inc., 703 F.3d 1206, 1227 (10th Cir. 2013) (“Where an issue has not been ruled on by 

the court below, we generally favor remand for the district court to examine the 

issue.”). 

More specifically, among the issues that the district court must decide on 

remand is whether such an amendment would be timely. See 28 U.S.C. § 2255(f); 

United States v. Mathisen, 822 F. App’x 752, 753–54 (10th Cir. 2020) (unpublished)

(discussing the statute of limitations for § 2255 motions and amendments to such 

motions). And, relatedly, the court must assess whether the amendment relates back 

to Mr. Baker’s original § 2255 motion. See FED. R. CIV. P. 15(c)(1)(B) (“An 

amendment to a pleading relates back to the date of the original pleading when . . . 

the amendment asserts a claim or defense that arose out of the conduct, transaction, 

or occurrence set out—or attempted to be set out—in the original pleading . . . .”); 

United States v. Roe, 913 F.3d 1285, 1296 (10th Cir. 2019) (noting that an amended 

§ 2255 motion can relate back to the date of the original § 2255 motion through the 

workings of Federal Rule of Civil Procedure 15(c)(1)(B) in certain “constrained” 

circumstances); id. at 1298 (explaining that “the operative question for purposes of 

the applicability of Rule 15(c)(1)(B)’s relation-back provision is whether ‘the 

original and amended [motions] state claims that are tied to a common core of 

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operative facts.’” (quoting United States v. Trent, 884 F.3d 985, 992–93 (10th Cir. 

2018)). 

To be clear, however, in ordering this remand, it is not our intention to offer 

any opinion—and we do not do so—on whether Mr. Baker should be permitted to 

amend his § 2255 motion to include a Taylor-like argument or on the outcome of any 

resulting proceeding, if such an amendment is permitted. In the first instance, we 

leave those matters for the district court’s resolution. 

IV

For the foregoing reasons, we AFFIRM the district court’s dismissal of 

Mr. Baker’s § 2255 motion, DENY Mr. Baker’s request to expand the COA and 

DISMISS that portion of this matter, and REMAND the case for further proceedings 

consistent with this opinion. 

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