PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PHILLIP ANGEL GARCIA, Defendant - Appellant. No. 17-2019

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. Nos. 1:16-CV-00240-J B-LAM & 1:07-CR-00788-JB-1)

________________ _________________ Submitted on the briefs: * Michael A. Keefe, Assistant Federal Pub lic Defender, Albuquerque, New Mexico, for Appellant. James D. Tierney, Acting United States Atto rney, James R.W. Braun, Assistant United States Attorney, Albuquerque, New Mexico, for Appellee.

________________ _________________ Before TYMKOVICH , Chief Judge, HARTZ and O’BRIEN , Circuit Judges.

________________ _________________ O’BRIEN , Circuit Judge.

________________ _________________

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### December 18, 2017
Elisabeth A. Shumaker Clerk of Court2 More snow is here added to the Johnson avalanche. Johnson v. United States , 135 S. Ct. 2551 (2015) ( Johnson II ). In what has become a common refrain in a host of diverse circumstances, Phillip Angel Ga rcia claims the Ne w Mexico robbery statute does not satisfy the element of viol ent physical force neces sary for an ACCA sentencing enhancement. He is wrong; it does. I. BACKGROUND Garcia originally pled guilty to one count of possessing a firearm and ammunition after having been convicted of a felony, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He moved to withdraw hi s guilty plea, but the judge denied the motion. His crime carried a prison term of up to 10 years, id. § 924(a)(2), but because he had three or more prior “violent felony” convictions, the Armed Career Criminal Act of 1984 (ACCA) increas ed his punishment range to a mandatory 15 years to life. Id. § 924(e)(1). In 2008, the judge sentenced him to a prison term of 188 months. He app ealed; we affirmed. United States v. Garcia , 577 F.3d 1271, 1273 (10th Cir. 2009). That appeal did not raise the ACCA issue, this one does. As noted, the ACCA mandates an enhan ced sentence of imprisonment of not less than 15 years when the violator of § 922(g) has “three previ ous convictions . . . for a violent felony.” 18 U.S.C. § 924(e)(1 ). To fall within the definition of a violent felony, a prior conviction must be “punishable by imprisonment for a term exceeding one year,” id. § 924(e)(2)(B), and must satis fy one of three predicates:3 (1) Under the Elements Clau se, it must have “as an element th e use, attempted use, or threatened use of physical force against the person of another,” § 924(e)(2)(B)(i); (2) Under the Enumerated-Offenses Clause , it must be a categorical match to the generic offenses of “burglary, ars on, or extortion,” § 924(e)(2)(B)(ii); or (3) Under the Residual Clause, it mu st “otherwise involve[] conduct that presents a serious potential risk of physical injury to another,” id. United States v. Harris , 844 F.3d 1260, 1263 (10th Cir. 2017), petition for cert. filed (U.S. Apr. 4, 2017) (No. 16-8616). The Presentence Report concluded Garc ia should be sentenced under the ACCA, using three of his prior felony convi ctions—arson, reside ntial burglary, and possession of a deadly weapon by a prisoner— each of which it identified as a violent felony. The PSR also listed his other prior convictions, in cluding a third-degree robbery conviction under N.M. Stat. Ann. § 30-16-2. It calculated Garcia’s advisory Gu ideline sentencing range at 188 to 235 months. The judge adopted the PSR’s findings and sentenced Garcia at the bottom of this range, 188 months of imprisonment, to be followe d by a three-year term of supervised release. In 2015, the Supreme Court decided Johnson II . The Court held because the Residual Clause was unconstitutionally va gue, “imposing an increased sentence under the residual clause . . . violates the Constitution’s gua rantee of due process.”4 Johnson II , 135 S. Ct. at 2563. It left intact the Elements and Enumerated-Offenses Clauses. Id. On March 30, 2016, Garcia filed a § 2255 motion contending his sentence was unconstitutional under Johnson II . He claimed one of his three predicate convictions, possession of a deadly weapon by a prisoner, only qualified as a violent felony under the then defunct Residual Clause. The government conceded this point, but argued the (later declared and retroactively applied) error was harm less, because, even without the weapon possession conviction Garcia had three qua lifying prior violent felony convictions: a conviction for burglary, an arson co nviction, and a New Mexico robbery conviction. The robbery c onviction, it said, qualified as a violent felony under the Elements Clause and was an apt substitution for the conviction for unlawful weapon possession. The government’s argument presented several complicat ions. In the original sentencing the judge had not expressly relied on the New Mexico robbery conviction as an ACCA qualifying conviction. And in Johnson v. United States , 559 U.S. 133 (2010) ( Johnson I ), the Supreme Court had concl uded “physical force” under the Elements Clause “means violent force—that is, force capab le of causing physical pain or injury to another person.” Id. at 140. Mere offensiv e touching, for example, does not suffice. See id. at 139-42. The government argued Garcia’s robbery conviction qualified under this standard b ecause the use of violent force was a necessary element of New Mexi co robbery. Alternatively, it argued against applying5 the Johnson I standard retroactively to Garcia’s r obbery conviction. Garcia contested these arguments. Before the judge decided Garcia’s § 2255 motion, the government changed course. It withdrew its argum ent about the applicability of Johnson I and conceded “New Mexico’s robbery can be committed w ithout force causing physical pain or injury.” R., Vol. 4 at 57. This mean t the robbery conviction did not qualify as a violent felony under the ACCA’s Elements Cl ause after all. Afte r that concession the Probation Office also revisited its pos ition; it filed a Revised Sentencing Memorandum in which it stated Garcia’s robbery convicti on was not a violent felony and he was therefore eligib le for resentencing. On the same day the judge entered hi s Memorandum Opinion and Order, the government filed a supplemental brief in wh ich it again reversed course. Citing our recently published decision in Harris , 844 F.3d 1260, the government’s second revised position was that the “New Mexico robbery in the third degree is indeed a qualifying violent felony under the ‘forc e clause’ [or “Elements Clause”] of 18 U.S.C. § 924(e)(2)(B)(i).” R., Vol. 4 at 158. It does not appear the judge considered this supplemental brief in reaching a decision. He agreed with Garcia in part; the weapon conviction di d not qualify as a predicate offense under Johnson II . But, he said, the erro r was harmless because the New Mexico robbery convicti on could instead serve as hi s third predicate conviction because N.M. Stat. Ann. § 30-16-2, which pr ohibits theft by use or threatened use of force or violence, qualified as a violent felony under the El ements Clause as6 interpreted by Johnson I . Garcia therefore had thr ee qualifying predicate violent felonies under the ACCA. The judge denied the § 2255 motion. In a separate order, he denied Garcia’s request for a Certificate of Appealability (COA). We later granted a COA and now affirm. II. DISCUSSION 1. Standard of Revi ew and Applicable Law “We review the district court’s lega l rulings on a § 2255 motion de novo and its findings of fact for clear error.” Harris , 844 F.3d at 1263 (brackets and internal quotation marks omitted). “W hether a prior conviction sa tisfies the ACCA’s violent felony definition is a legal que stion we review de novo.” United States v. Titties , 852 F.3d 1257, 1263 (10th Ci r. 2017). “[T]he Govern ment bears the burden of proving a prior conviction qualifies under the ACCA,” see id. at 1272 n.19, and it is the government’s burden to prove the Residual Clause error was harmless, see generally O’Neal v. McAninch , 513 U.S. 432, 437-45 (1995) (stating burden of proving harmlessness of error affecting defendant’s substantia l rights lies with government). To determine this issue, “we apply th e categorical approach, focusing on the elements of the crime of convic tion, not the underlying facts.” Harris , 844 F.3d at 1263. Thus, we must determ ine whether the New Mexico r obbery statute “has as an element the use, attemp ted use, or threatened use of physical force against the person of another.” Id. at 1263-64 (quoting § 924(e)(2)(B)(i)).7 This inquiry requires application of both federal law and [New Mexico] state law. Federal law defines the meaning of the phrase “use, attempted use, or threatened use of physical for ce” in § 924(e)(2)(B )(i). And state law defines the substantive elements of the crime of conviction. . . . A two-step inquiry resolves whethe r [New Mexico’s] robbery statute requires physical force as that term is used in the ACCA: we must identify the minimum “force” required by [N ew Mexico] law for the crime of robbery and then determine if that force categorically fits the definition of physical force. The Supreme Court ha s reminded us that in construing the minimum culpable conduct, such conduct only includes that in which there is a realistic probability, not a theoretical possibility , the state statute would apply. Decisions from the state supr eme court best indicate a realistic probability, supplemented by decisions from the intermediate-appellate courts. Harris , 844 F.3d at 1264 (citations and internal quotation marks omitted). 2. New Mexico’s Robbery Statute The New Mexico robbery statute provides: Robbery consists of the theft of a nything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence. 1

1 In United States v. Lujan , 9 F.3d 890, 891-92 (10th Cir. 1993), we considered whether the defendant’s prior New Mexico robbery conviction qualified as a violent felony for ACCA purposes. In a single- sentence analysis, we stated “[t]he New Mexico robbery statute . . . contains the required element of force [because] ‘[r]obbery consists of the theft of anythi ng of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.’” Id. at 892 (emphasis omitted) (quo ting N.M. Stat. Ann. § 30-16-2 (1978)). Lujan did not discuss or determine the i ssue the Supreme Court resolved in Johnson I : the minimum necessary quantum of force which qualifi es as “physical force” for purposes of a “vio lent felony” conviction as defined in the ACCA. Nor did it scrutinize the elements of New Mexico robbery under that standard. See Harris , 844 F.3d at 1266 (“It is what is required by the ‘use of force, threats, or intimidation’ element [in th e Colorado robbery statute] that is at the center of this appeal .” (emphasis added)). We are therefore not bound by the result or analysis in (continued)8 Whoever commits robbery is guilty of a third degree felony. Whoever commits robbery while armed with a deadly w eapon is, for the first offense, guilty of a second degree felony and, for second and subsequent offenses, is guilty of a first degree felony. N.M. Stat. Ann. § 30-16-2. 2 A third-degree robbery conviction unde r this statute includes two essential elements: (1) the theft of anything of va lue, from the person of another or from the immediate control of another; (2) by the us e or threatened use of force or violence. 3

Lujan

. Cf. United States v. Hathaway , 318 F.3d 1001, 1006 (10th Cir. 2003) (“Although we are bound by the precedent of prior panels, a s uperseding contrary decision by the Supreme Court always cont rols our analysis.” (internal quotation marks omitted)).

2 The statute provides for both third de gree robbery, and for first or second degree robbery when the offender is armed w ith a deadly weapon. The parties agree Garcia was convicted of third degree robbe ry, so we only address that statutory provision.

3 The parties do not argue that the alte rnate language contained in the first element (theft of an object from a person, as opposed to theft of an object in the person’s immediate control) defines separate crimes. And although it appears there are four different means of satisfying th e second element (use of force, use of violence, threatened use of force, and threatened use of violence), the parties do not ask us to treat these as se parate crimes for the purpose of our analysis. In fact, Garcia focuses entirely on the actual us e of force or violence and presents no argument at all concerning whet her the “threatened use of force” or “threatened use of violence” would satisfy the ACCA’s defin ition. We therefore decline to consider the issue. See Harris , 844 F.3d at 1271 (Ebel, J., conc urring, stating where neither the defendant nor the government addresse d threat or intimidation language in Colorado robbery statute, it wa s unnecessary to reach the i ssue). This leaves the two other apparent means of satisfying the sec ond element: use of force, and use of violence. But the parties ag ree these terms are used inte rchangeably in the statute and “do not substantively st ate an alternative means of committing the offense.” State v. Curley , 939 P.2d 1103, 1104 (N.M. Ct. App. 1997). We accept the concession, which leaves us free of a “d ivisible” statute problem; we may simply apply the categorical approach to examine the prohibited us e of force or violence.9 Under the categorical approach, we focus on “the least of the acts criminalized” under the state statute. Moncrieffe v. Holder , 569 U.S. 184, 190-91 (2013) (emphasis added) (brackets and internal quotation marks omitted). 3. Supreme Court’s Defini tion of “Physical Force” We will address the New Mexico courts ’ construction of § 30-16-2, but first we look to the Supreme Court’s discussion of “physical force” for purposes of the Elements Clause in § 924(e)(2)(B)(i). It provides the groundwork for evaluating the New Mexico statute. See Harris , 844 F.3d at 1264.
In Johnson I , the Court determined “the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” Johnson I , 559 U.S. at 140. The Court ackno wledged that for common-law battery the “force” element could be “satisfied by even the sli ghtest offensive touching.” Id. at 139. But, it said, the ACCA demands more. The prope r definition of the term as used in the ACCA (taken in the context of defining a violent felony) did not suggest Congress intended to adopt a de minimis , common-law meaning for purposes of the Elements Clause. Id. at 139-40. Instead, the Court emphasized the clear “connotation of strong phys ical force” in the ACCA ’s statutory language. Id. at 140. As an example of physical or violent forc e which would amount to more than mere offensive touching, the Johnson I Court identified “a slap in the face.” 559 U.S. at 143. In a later case, United States v. Castleman , 134 S. Ct. 1405 (2014), Justice Scalia, Johnson I ’s author, provided additional ex amples of actions which exceed “mere offensive touching” and, similar to a slap in the face, are “capable of causing10 physical pain or injury.” Id. at 1421 (Scalia, J., concu rring). He cited “hitting, slapping, shoving, grabbing, pinc hing, biting, and hair pulling.” Id. (brackets and internal quotation marks omitted). 4 Reduced to its esse nce the ACCA requires violent physical force. He re there is no physical force debate, only the requirement of violent force—force capable of causing in jury or pain. Signi ficantly, the Court’s definition of “violent force” doe s not require the force used to actually cause physical pain or injury, only that it be capable of doing so. Id. We will later return to that salient point. 4. United States v. Harris
Our recent Harris decision provides an analy tical template. In it we applied the ACCA’s “physical force” standard to a Colorado robbery statute (with elements very similar to those of N. M. Stat. Ann. § 30-16-2). See Harris , 844 F.3d at 1266. The Colorado Statute required the defendant “[1] knowingly [took] anything of value from the person or presence of another [2] by the use of fo rce, threats, or intimidation.” Id. (quoting Colo. Rev. Stat. § 18-4-301(1) (2016) (emphasis omitted)). We looked at Colorado decisions to discover how the statute is construed and applied in actual cases, “where the rubber meets the road.” In reaching this result, we cited People v. Borghesi , 66 P.3d 93, 99 (Colo. 2003) (en banc), a double-jeopardy case in which the Colorado Supreme Court

4 Although a concurring opinion is not bi nding on us, we may consider it for its persuasive value. See Bryan A. Garner, et al., The Law of Judicial Precedent 183 (2016). We find Justice Scalia’s concurrence in Castleman persuasive on the quantum of force required to constitute “violent” force.11 discussed whether Colorado robbe ry is a crime against the pe rson or against property. The Borghesi court noted the common-law defi nition of robbery employed by the Colorado legislature, noting “it is the ‘violence’ that distinguishes common law larceny from robbery” and “‘the gravamen of the offense of robbery is the violent nature of the taking.’” 5 Harris , 844 F.3d at 1266-67 (quoting Borghesi , 66 P.3d at 99, 100-01). Relying on this langua ge, we concluded robbery in Colorado “categorically matches the definition of physical for ce assigned by the Supreme Court in Johnson I .” Harris , 844 F.3d at 1268 (internal quotation marks omitted). 5. New Mexico Case Law Since Johnson I , some federal circuit courts have decided a robbery statute which criminalizes the use of any physical force, however mi nimal, to overcome the victim’s resistance and seize her propert y—including merely grabbing the victim’s purse or bumping, nudging, or jostling the victim in orde r to obtain it—does not meet the violent force required by the ACCA. See, e.g. , United States v. Yates , 866 F.3d 723, 730-31 (6th Cir. 2017) (collecting cases). By contrast, convictions under robbery statutes requiring mo re than minimal actual fo rce are violent felonies. See id. at 731-32. The questi on is, on which side of th is line does § 30-16-2 fall? That, of course, depends on how New Mexi co courts have applied the statutory language. Honoring the Harris protocol, we now undertake that analysis, starting with the general and then m oving to the specific. In Harris, we found strongly

5 Unlike the New Mexico statute, the Colorado statute did not use the word “violence”.12 persuasive the Colorado Supreme Court’s st atement “robbery in Colorado requires a ‘violent taking,’” which we determined was “consistent with the physical force required by the ACCA’s elements clause.” Harris , 844 F.3d at 1266. The government finds an analogue to the Colorado case, Borghesi, in the New Mexico Supreme Court’s case of State v. Bernal , 146 P.3d 289 (N.M. 2006). As in Borghesi , the New Mexico court in Bernal set out to determine whether a defendant may lawfully be convicted for more than one count of robbery by attempting to take the same property from more than one person. Id. at 293. As did the Colorado Supreme Court, the New Mexico Supreme Court, relying in part on prior New Mexico cases, 6 resolved the matter by asking wh ether robbery is a crime against property or against persons. And, like th e Colorado Supreme Court, the New Mexico Supreme Court concluded its robbe ry statute protects persons. See id. at 296 (“Robbery is not merely a property crime, but a crim e against a person.”). In reaching these conclusions, the New Mexico Supreme C ourt discussed the nature of robbery under New Mexico law in terms very similar to those used by the Colorado Supreme Court in Borghesi . The court repeatedly re ferred to “violence” as a distinguishing characteristic of a robbery offense, stating “robbery is a crime designed to punish the use of violence” and “t he robbery statute cl early is designed to

6 Garcia notes that Bernal post-dates his robbery convic tion. He argues to the extent Bernal departs from prior New Mexico cases, it did not define the crime of robbery at the time of his prior conviction and therefore should not be considered in interpreting the quantum of force. But Bernal did not so much depart from those prior New Mexico cases as it interpreted them. We therefore find this argument without merit.13 protect citizens from violence.” Id. It is “distinct from la rceny because it requires, and is designed to punish, the element of force.” Id.
Harris and Bernal provide strong persuasive aut hority in favor of concluding § 30-16-2 is a crime involving violent forc e. But they are not dispositive of the question. Bernal does not provide a specific disc ussion of the quantum of force required to satisfy the statute. Also, our i nquiry is statute-specif ic and requires more than mere reliance on Harris ’s discussion of Colorado la w. Unlike the Colorado law summarized in Harris , New Mexico has issued severa l nuanced decisions specifically addressing the quantum of force required for a robbery conviction. We must carefully consider these cases. The only published New Mexico Suprem e Court case offering direct guidance appears to be State v. Clokey , 553 P.2d 1260, 1260 (N.M. 1976). In Clokey , the New Mexico Supreme Court held “the evidence s upported the verdict of the jury that the snatching of the purse was accompanied by force suffici ent to convert the crime from larceny to robbery. ” Id. (emphasis added). Unfortunatel y, in its terse decision, the New Mexico Supreme Court did not discuss th e specific facts, inst ead referring only, and quite generically, to the unquoted f acts recited in the defendant’s docketing

statement. See id. Recently, however, a judge of the United St ates District Court for the District of New Mexico located and quoted from th e forty-year-old docketing statement cited
in Clokey . The government does not challenge Garcia’s use of and quotation from this factual statement, which reads as follows:14 [t]he complaining witness was walkin g toward the [d]efendant and was carrying a purse under her left arm. The purse was not fastened to her person, nor was it in the grasp of her hand. The [d]efendant allegedly ran toward the complaining w itness and with his left hand pushed the purse through the woman’s arm, grabbed the purs e and ran. It is alleged that in so doing the [d]efendant touched the inside of the woman’s arm, causing the woman to stumble. The woman was in her seven ties and tottered unsteadily when she wa lked. There was no resistance offered by the woman whose purse was taken; there was no struggle for the purse; and the [d]efendant, in the compla ining witness’s words, “s natched” the purse in one continuous motion and ran. United States v. King , 248 F. Supp. 3d 1062, 1070 (D.N.M. 2017) (quoting New Mexico v. Clokey , No. 2479, Docketing Statemen t at 1-2 (N.M. App. filed Mar. 22, 1976)). In the abse nce of objection we will take judicial notice of the facts the District of New Mexico quoted in King

. This statement of facts indicates the defendant “tou ched” the inside of the woman’s arm. We know that mere “touching ” is insufficient to satisfy the violent force standard. Johnson I , 559 U.S. at 139-40. On the other hand, the “touch” was forceful enough to cause the victim to st umble, and the defendant “pushed the purse through the woman’s arm.” Could this quant um of force represen t a “shov[e]” or a “grab[]” capable of causing physical pain or injury? Castleman , 134 S. Ct. at 1421 (internal quotation marks omitted). 7 We are doubtful, but it may have been a force capable of causing pain or injury by setting in motion a chain of events leading to

7 Justice Scalia’s concurring opini on included grabbing and shoving as examples of violent force. His examples , while persuasive, are not included in the majority opinion. See note 4, supra .15 that result. 8 The force used was suffi cient for the assailant to seize a purse from the victim and, quite predictably, it was sufficient to cause he r to stumble. On the other hand, Clokey may be viewed as involving mere jo stling of the victim to dislodge her property rather than the use of “v iolent force” suffi cient to satisfy Johnson I and the ACCA violence standard. See, e.g. , Yates , 866 F.3d at 733-34 (concluding Ohio robbery does not constitute a crime of viol ence, because snatching a purse without any resistance from the victim can constitute sufficient use of fo rce to violate the statute). The lack of an express analysis by the New Mexico Supreme Court in Clokey leaves us uncertain. The c ourt viewed the facts in the light most favorable to the
state, Clokey , 553 P.2d at 1260, but we do not know which fact s it found sufficiently persuasive to support its c onclusion that the statutory “force or violence” element was satisfied. A more detaile d analysis would have been us eful. In addition, as we will see, Clokey ’s summary result does not address the nuanced approach adopted in later, more precise ly reasoned New Mexico cases. Since Clokey does not resolve our issue, we turn next to cases from the New Mexico Court of Appeals.

8 Castleman , 134 S. Ct. at 1415 (“That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter.”); cf. United States v. Vail-Bailon , 868 F.3d 1293, 1298-1302 (11th Cir. 2017) (en banc) (holding battery statute satisfied the “capable of causing pain or in jury” standard, even though conviction did not require perpetrator to spec ifically intend the physical harm that actually resulted); Douglas v. United States , 858 F.3d 1069, 1072 (7th Cir. 2017) (stating under ACCA there is no “ separate intent element attached to the degr ee of injury. It is enough to ‘use’ force.”), petition for cert. filed (U.S. Oct. 31, 2017) (No. 17-6619).16 The earliest of the cases cited by the parties is State v. Sanchez , 430 P.2d 781 (N.M. Ct. App. 1967). In it, the victim was using a restroom in a bar. The defendant put his fist against the vict im’s back and pulled his walle t from his pants pocket. On these facts, the Court of App eals decided there was insuffici ent force or fear of force to justify a robbery conviction. Id. at 782. According to the Court of Appeals, wher e the state relies on the use of force, the issue is “not how much force was used, but whether th e force was sufficient to compel the victim to part with his property.” Id. Similar language can be found in other New Mexico cases, see, e.g. , State v. Martinez , 513 P.2d 402, 403 (N.M. Ct. App. 1973) (“The amount or degree of for ce is not the determinative factor.”). Martinez immediately follows this language by the statement “ [e]vidence of jostling or causing the victim to fall as property is take n is a sufficient showing to establish the use of force.” 9 Id. (emphasis added). But courts have not simply relied on a st ate court’s statement that the degree of force used is immaterial to a conviction; they have also examined the state cases to

9 This is inconsistent with Sanchez , 430 P.2d at 782, which indicates touching or jostling is not sufficient force for a robbery conviction. Compare also the Committee Commentary to the New Mexico pattern jury instruction for robbery, NMRA UJI 14-1620, which states the amount of force used to commit robbery is “immaterial.” When such la nguage is used to describe state statutes—holding no specific quantum of force is required to commit a robbery—it precludes the use of convictions under the Elements Clause of the ACCA. See, e.g. , United States v. Mulkern , 854 F.3d 87, 93 (1st Cir. 2017) (robb ery conviction under Maine statute was not a violent felony under the ACCA because “Maine’s highest court recognizes that ‘ any physical force’ suffices to satisfy th e ‘physical force’ element [of the robbery statute]”).17 see what level of forc e was actually deemed su fficient in practice. See, e.g. , United States v. Gardner , 823 F.3d 793, 803-04 (4th Cir. 2016) (analyzing North Carolina cases); United States v. Vail-Bailon , 868 F.3d 1293, 1306 ( 11th Cir. 2017) (“[T]he real-world examples of Florida felony batte ry we are aware of all involve conduct that clearly required the use of physical force.”). We w ill do the same. Although our focus is on the statutory elem ents, the facts are relevant to a determination of how those elements are actually applied in the state’s c ourts and hence would be realistically applied there. As will be seen, the New Me xico courts have required a greater quantum of force for a robbery conviction than the above language might suggest. Significantly, where the eviden ce showed less force was involved, they have not hesitated to reverse.
In Sanchez , finding the force used was not su fficient to satis fy the robbery statute, the court explained, The situation here is comparable to those pickpocket or purse snatching cases, where even though th ere was some touching or jostling involved as the property was taken, the crime was larceny because of the absence of force or fear. Sanchez , 430 P.2d at 782 (c itations omitted). The primary point made here appears to be the bathroom theft was not robbery because force (although physical ) was not used to overcome the victim’s resistance. But we can also glean fro m the applied facts in Sanchez that “force,” for purposes of a New Mexico robbery conviction, invol ves something more than incidental “touching or jostling.”18 In State v. Curley , 939 P.2d 1103 (N.M. Ct. App. 1997), which is a decision involving a purse snatching, the court provided a detailed analysis of the quantum of force required for robbery. The recited facts were: [T]he victim was walking out of a ma ll with her daughter when Defendant grabbed her purse and ran away. The victim desc ribed the incident as follow[s]: “I had my purse on my left si de . . . and I felt kind of a shove of my left shoulder where I had my purse strap with my thumb through it and I kind of leaned-was pushed-toward my daughter, and this person came and just grabbed the strap of my purse and continued to run.” The victim used the words “grab” or “pull” to descri be the actual taking of the purse and “shove” or “push” to describe what De fendant did as he grabbed or “pulled [the purse] from her arm and hand.” Ho wever, there was also evidence that the victim’s thumb was not through the strap of the purse, but was rather on the bottom of the purse. The purse st rap was not broken, and the victim did not testify that she struggled with De fendant for the purse in any way or that any part of her body offered a ny resistance or even moved when the purse was pulled from her arm and hand. Defendant presented evidence that he was drunk and did not re member the incident at all. Id. at 1104. The trial court refused to give a lesser included offense (l arceny) instruction on these facts, but the New Mexico Court of Appeals reversed. It said if the defendant’s shove was exclude d from the quantum of force (because the defendant was drunk and may not have in tentionally shoved the victim), the remaining force would not have been sufficient to constitute robbery, only larceny. See id. at 1105. The court went on to explain if the defe ndant “shoved the victim to help himself relieve her of the purse, and the shove an d Defendant’s other force in grabbing the purse had that effect,” the fa cts would establish robbery. Id. at 1107. Curley holds intentionally shoving a person ( one of Justice Scalia’s ex amples of violent force, see Castleman , 134 S. Ct. at 1421) would be sufficie nt to satisfy the element of force19 for robbery, but merely snatching a purse without any resistance from the victim would not. 10 This is consistent with the government’s understanding that a New Mexico robbery conviction requires the use of violent force (force capable of causing pain or injury), as defined in Johnson I

. 11
The Curley court explained “robbery is committ ed when attached property is snatched or grabbed by sufficient force so as to overcome the resistance of attachment.” Id. at 1105. The Curley court specifically re jected the so-called Massachusetts rule, which finds sufficient force present “as long as [a] person is aware of the application of force which re lieves the person of property and the taking is therefore, at least to some de gree, against the vi ctim’s will.” Id. ; see also Harris ,

10 Garcia relies on dicta from Curley setting out general principles to distinguish larceny from robbery, including language which indicates using force to remove items attached to a victim’s cl othing with her knowledge could support a robbery conviction. See Curley , 939 P.2d at 1106. But this dicta, which also includes the force involved in jostling the vi ctim, is much broader than the actual application the robbery statute has received in New Mexico courts. Garcia does not cite a New Mexico case upholding a robbery conviction under t hose facts, and the dicta in Curley about items attached to clothing seem s inconsistent with language in Bernal , 146 P.3d at 296, which indicates the robbery statute is designed to punish violent force directed against a person, ra ther than solely protecting property.

11 We are not persuaded by cases such as Gardner , 823 F.3d at 803-04, which concluded that North Carolina robbery wa s not a violent felony under the ACCA by relying in part on a North Carolina cas e upholding “a conviction when a defendant pushed the shoulder of an electronics stor e clerk, causing her to fall onto shelves while the defendant took possession of a te levision.” Shoving a person and causing her to fall involves fo rce capable of producing pain or injury. Cf. United States v. Thomas , 849 F.3d 906, 909 (10th Cir.) (“[A]ggr essive pushing . . . is sufficient [to satisfy the condition of violent force] under Johnson .”), cert. denied , 86 USLW 3716 (U.S. Oct. 10, 2017) (No. 16-9389).20 844 F.3d at 1267-68 (finding it significant to a violent-force inquiry Colorado does not follow the Massachus etts approach). In his concurrence in Castleman , Justice Scalia included “grabbing” as an example of violent force. Castleman , 134 S. Ct. at 1421. He may have been referring to grabbing a body part rather than the victim’s property. But where the victim is clinging to her property and resi sting the force used to take it away a distinction between grabbing the person or her property seems immaterial to the violent force inquiry. A direct/indirect te st is useless. The Supreme Court has recognized physical force “need not be applie d directly to the body of the victim” to be capable of producing bodily injury. Id. at 1414-15 (internal quotation marks omitted). We agree with th e Seventh Circuit; the proper focus is not on whether “the force employed [is] of such a degree as to cause (or threaten) more serious injuries,” but whether the force used has “the capacity to inflict phys ical pain, if not concrete physical injury, upon the victim.” United States v. Jennings , 860 F.3d 450, 457 (7th Cir. 2017), petition for cert. filed (U.S. Nov. 17, 2017) (No. 17-6835). Other New Mexico cases illustrate how force applied through struggle over property is capable of causing pain or injury. In State v. Segura , 472 P.2d 387 (N.M. Ct. App. 1970), the fo rce used was held sufficien t for a robbery conviction where the defendant grabbed a shopping bag from the vict im and pulled it away from her so hard it caused the vict im to fall on the ground. See id. at 387-88. Force sufficient to cause a victim to fall to the ground is cert ainly force capable of causing pain or injury.21 In State v. Verdugo , 164 P.3d 966 (N.M. Ct. App. 2007), the New Mexico Court of Appeals found sufficient force to support a robbery conviction where the defendant “drove up [alongsid e the victim] while she was walking in a parking lot, and that he grabbed her purse from her arm. She testified that she struggled to retain control of the purse, but that the strap eventually broke.” Id. at 974. This level of force was not minimal; jerking on a purse fro m a moving car was certainly capable of causing physical pain or injury to the victim. 12 Grabbing, along with striking th e victim, was at issue in State v. Martinez , 513 P.2d 402 (N.M. Ct. App. 1973). In Martinez , the New Mexico Court of Appeals found sufficient force to su stain a robbery conviction wh ere the perpetrator grabbed dollar bills in the breast pocket of the vict im’s jacket, ripping the jacket, and hit the

12 Garcia argues Verdugo ’s facts are comparable to those described in United States v. Bell , 840 F.3d 963, 966 (8th Cir. 2016), in which the Eighth Circuit held a prior Missouri state conviction for second- degree robbery did not constitute a “crime of violence” for Guideline sentencing pu rposes. The Eighth Circuit, citing a Missouri Court of Appeals decision con cerning purse-snatching, concluded “in Missouri a defendant can be convicted of second-degree robbery when he has physical contact with a victim but does not n ecessarily cause physical pain or injury.” Id. The court acknowledged this is not the same as the Johnson I standard, which targets whether the force is capable of causing physical pain or injury. Id. It finessed this distinction by pointi ng to a “reasonable probability” Missouri could apply its statute, or had alr eady done so, to conduct falli ng short of violent force. Id. (internal quotation marks omitted). We do not find this anal ysis persuasive. Garcia also points to United States v. Swopes , 850 F.3d 979 (8th Cir. 2017) (per curiam), which applied Bell to the violent-felony inqui ry under the ACCA and granted the defendant relief unde r the plain-error standard. See id. at 980-81. But on June 17, 2017, the Eighth Circuit granted en banc review a nd vacated its prior decision in Swopes

.22 victim, knocking him ag ainst a railing. See id. at 402-03. This case also clearly describes violent forc e as described in Johnson I

. We acknowledge language in the New Mexico cases sugge sting any quantum of force which overcomes resistance w ould be sufficient to support a robbery conviction. But what is said is less important than what is done. As we have seen, New Mexico’s appellate courts do not apply this standard blindly. Defendants who have used a minimal level of physical forc e to take a victim’s property have seen their convictions reversed. See Sanchez and Curley . We are concerned with realistic probabilities, not theoretical possibilities, of convic tion under the statute. Harris , 844 F.3d at 1264. And the cases affirmi ng convictions which clearly discuss the quantum of force describe fo rce sufficient to satisfy the Johnson I definition. In sum, we conclude robbery as defi ned in N.M. Stat. Ann. § 30-16-2, authoritatively discussed in Bernal , and actually applied in the New Mexico courts, categorically matches the definition of “p hysical force” the Supreme Court assigned
in Johnson I . Robbery under this statute has as an element the use or threatened use of physical force against another person. Thus, robbery under § 30-16-2 is a violent felony under the ACCA’s Elements Clause in § 924(e)(2)(B)(i), and may be used as the third predicate violent felony convic tion to uphold Garcia’s enhanced sentence under the ACCA.23 III. CONCLUSION We affirm the District judge’s or der denying Garcia’s § 2255 motion. Garcia’s motion for an expedited decision is denied as moot.