UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

SEBASTIAN L. ECCLESTON, 

 Defendant - Appellant. 

No. 20-2119 

(D.C. Nos. 1:19-CV-01201-JB-CG & 

1:95-CR-00014-JB-CG-2) 

(D. N.M.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

_________________________________ 

Before HARTZ, KELLY, and HOLMES, Circuit Judges. 

_________________________________ 

More than twenty-five years ago, Sebastian L. Eccleston pleaded guilty to using a 

firearm during a crime of violence. See 18 U.S.C. § 924(c).1

 The Supreme Court 

recently held that the provision known as the residual clause defining a “crime of 

violence,” § 924(c)(3)(B), is unconstitutionally vague. See United States v. Davis, 

139 S. Ct. 2319, 2336 (2019). Mr. Eccleston sought relief under 28 U.S.C. § 2255, 

arguing that, after Davis, his § 924(c) conviction lacked a valid predicate crime of 

*

 This order is not binding precedent except under the doctrines of law of the case, 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. 

1

 Mr. Eccleston pleaded guilty to two counts under § 924(c), one predicated on 

carjacking and the other predicated on a Hobbs Act violation. Only the count predicated 

on the Hobbs Act violation is relevant to our decision. Therefore, any reference to 

Mr. Eccleston’s § 924(c) conviction is to the one predicated on a Hobbs Act violation. 

FILED 

United States Court of Appeals 

Tenth Circuit 

August 26, 2022

Christopher M. Wolpert 

Clerk of Court

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violence. Even after Davis, though, the provision known as the elements clause defining 

a “crime of violence,” § 924(c)(3)(A), remains valid. And the district court concluded 

that Mr. Eccleston’s predicate crime of violence, Hobbs Act robbery in violation of 

18 U.S.C. § 1951(a), is a valid predicate under the elements clause. So the district court 

denied Mr. Eccleston’s § 2255 motion. Mr. Eccleston seeks a certificate of appealability 

(COA) to appeal the district court’s decision. We deny a COA and dismiss this matter. 

1. Mr. Eccleston’s Arguments. 

To obtain a COA, Mr. Eccleston must show “that reasonable jurists could debate 

whether (or, for that matter, agree that) the [motion] should have been resolved in a 

different manner or that the issues presented were adequate to deserve encouragement to 

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks 

omitted). He does not dispute that Hobbs Act robbery is a categorical crime of violence 

under the elements clause. See United States v. Melgar-Cabrera, 892 F.3d 1053, 1060 & 

n.4 (10th Cir. 2018). He instead argues that the district court erred twice on its way to 

concluding that he had been convicted of Hobbs Act robbery. First, he argues the court 

erred in concluding that the Hobbs Act is divisible into separate offenses for robbery, 

attempted robbery, and conspiracy to commit robbery. Second, even if the Hobbs Act is 

divisible into these three robbery-based offenses, he argues, the court erred in concluding 

that he had been convicted of completed robbery rather than attempt or conspiracy to 

commit robbery. 

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2. The Divisibility of the Hobbs Act. 

 The extent of the Hobbs Act’s divisibility matters because it shapes the analysis of 

whether a violation of that statute qualifies as a crime of violence under the elements 

clause, an analysis known as the categorical approach. See United States v. Taylor, 

142 S. Ct. 2015, 2020 (2022). A crime of violence under the elements clause is a felony 

that “has as an element the use, attempted use, or threatened use of physical force against 

the person or property of another.” § 924(c)(3)(A). The categorical approach does not 

involve an inquiry into the facts of a particular crime: “The only relevant question is 

whether the federal felony at issue always requires the government to prove—beyond a 

reasonable doubt, as an element of its case—the use, attempted use, or threatened use of 

force.” Taylor, 142 S. Ct. at 2020. 

 If a predicate conviction arises from a divisible statute—that is, a statute defining 

multiple crimes by listing alternative elements—then courts will decide if the conviction 

qualifies as a crime of violence by using the modified categorical approach. See Mathis 

v. United States, 579 U.S. 500, 505 (2016). The modified categorical approach allows 

courts to consult certain documents—for example, the charging document, plea 

agreement, and transcript of the plea colloquy—to decide “what crime, with what 

elements, a defendant was convicted of.” Id. at 505–06. This inquiry focuses “on the 

elements, rather than the facts, of a crime.” Descamps v. United States, 570 U.S. 254, 

263 (2013). “Although the record may reveal factual details of the offense, a court may 

use the modified approach only to determine which alternative element in a divisible 

statute formed the basis of the defendant’s conviction.” United States v. Titties, 852 F.3d 

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1257, 1266 (10th Cir. 2017) (brackets and internal quotation marks omitted). Once the 

court identifies the crime of conviction, it can then use the categorical approach to 

determine if that crime is a crime of violence under the elements clause. See Mathis, 

579 U.S. at 506. 

A statute is divisible if it “sets out one or more elements of the offense in the 

alternative.” Descamps, 570 U.S. at 257. A statute is not necessarily divisible, however, 

merely because it “is framed in the disjunctive.” Titties, 852 F.3d at 1267. A statute is 

divisible only if its alternative components are elements and not means. Id. “‘Elements’ 

are the constituent parts of a crime’s legal definition—the things the prosecution must 

prove to sustain a conviction.” Mathis, 579 U.S. at 504 (internal quotation marks 

omitted). Means, by contrast, are “various factual ways of committing some component 

of the offense.” Id. at 506. 

 Mr. Eccleston’s predicate conviction arose under the Hobbs Act, a statute creating 

criminal liability for a person who 

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. 

§ 1951(a). The district court concluded that the Hobbs Act is divisible into three 

robbery-based offenses: robbery, attempted robbery, and conspiracy to commit robbery. 

The district court’s conclusion is correct because these three crimes comprise 

different elements. See United States v. Washington, 653 F.3d 1251, 1263 n.12 (10th Cir. 

2011) (recognizing that, “under the Hobbs Act, conspiracy and attempt appear as distinct 

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crimes within the same statutory provision”); see also Taylor, 142 S. Ct. at 2019 (“The 

Hobbs Act makes it a federal crime to commit, attempt to commit, or conspire to commit 

a robbery with an interstate component.”). A conviction for Hobbs Act robbery requires 

proof, in relevant part, of “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.” 

§ 1951(b)(1). A conviction for attempted Hobbs Act robbery requires proof that the 

defendant “intended to unlawfully take or obtain personal property by means of actual or 

threatened force” and that “he completed a ‘substantial step’ toward that end.” Taylor, 

142 S. Ct. at 2020. And the “elements of conspiracy center on a defendant’s agreement 

to commit a crime and do not require the government to prove the elements of the 

underlying substantive crime itself.” Brown v. United States, 942 F.3d 1069, 1075 

(11th Cir. 2019) (per curiam); see also United States v. Wright, 506 F.3d 1293, 1297–98 

(10th Cir. 2007) (outlining the elements of a conspiracy). Reasonable jurists could not 

debate that the Hobbs Act defines separate crimes of robbery, attempted robbery, and 

conspiracy to commit robbery. 

3. Determining Mr. Eccleston’s Crime of Conviction. 

After deciding that the Hobbs Act defines three separate robbery-based offenses, 

the district court used the modified categorical approach to conclude that Mr. Eccleston 

pleaded guilty to completed robbery. The charging document alleges in part that 

Mr. Eccleston and his codefendant 

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did unlawfully obstruct, delay and affect, and attempt and conspire to 

obstruct, delay and affect commerce and the movement of articles and 

commodities in such commerce, by robbery as that term is defined in 

§ 1951, in that Eccleston and [his codefendant] did unlawfully take and 

obtain personal property . . . from [the victim] against her will by means of 

actual and threatened force, violence, and fear of injury, immediate and 

future, to her person and a person in her company. 

R. vol. 1 at 167 (brackets, ellipsis, and internal quotation marks omitted). In the plea 

agreement, Mr. Eccleston admitted a nearly identical charge that he 

did unlawfully obstruct, delay and affect, and attempt and conspire to 

obstruct, delay and affect commerce as that term is defined in § 1951, and 

the movement of articles and commodities in such commerce, by robbery 

as that term is defined in § 1951, in that Eccleston[] did unlawfully take and 

obtain personal property . . . from the person and in the presence of [the 

victim] against her will by means of actual and [threatened] force, violence, 

and fear of injury, immediate and future, to her person and a person in her 

company. 

Id. at 168 (brackets, ellipsis, and internal quotation marks omitted). During the plea 

colloquy the district court described the count in these same terms before Mr. Eccleston 

pleaded guilty.2

 Based on the charging document, the plea agreement, and the plea 

colloquy, the district court concluded that Mr. Eccleston had been convicted of completed 

Hobbs Act robbery.3

 Mr. Eccleston argues that the record refutes the conclusion that he pleaded guilty 

to completed Hobbs Act robbery. As he underscores, the charge he pleaded guilty to says 

2

 The court’s recitation of the count occasionally varied from the language we 

have quoted from the plea agreement, but its recitation of the charge is identical to the 

plea agreement in all relevant respects. 

3

 The district court also considered the presentence report. Mr. Eccleston asserts 

that the court erred in doing so. But in a postjudgment order, the court concluded that the 

other relevant documents sufficiently show Mr. Eccleston pleaded guilty to Hobbs Act 

robbery. That conclusion, as we will explain, is beyond debate. 

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that he “did unlawfully obstruct, delay and affect, and attempt and conspire to obstruct, 

delay and affect commerce.” Id. (emphasis added) (internal quotation marks omitted). 

But the elements he pleaded guilty to are those of completed robbery and not of 

attempted robbery or conspiracy to commit robbery. He admitted that he “did unlawfully 

take and obtain personal property . . . from the person and in the presence of [the victim] 

against her will by means of actual and [threatened] force, violence, and fear of injury, 

immediate and future, to her person and a person in her company.” Id. (ellipsis and 

internal quotation marks omitted). Those are the relevant elements of completed robbery. 

See § 1951(b)(1). He did not admit to entering into an agreement to violate the law (an 

element of conspiracy) or merely to taking a substantial step toward committing robbery 

(an element of attempt). Given the charging document, the plea agreement, and the plea 

colloquy, no reasonable jurist could debate the conclusion that Mr. Eccleston pleaded 

guilty to completed Hobbs Act robbery, a categorical crime of violence under the 

elements clause, see Melgar-Cabrera, 892 F.3d at 1060 & n.4. 

4. Conclusion. 

 We deny Mr. Eccleston’s application for a COA and dismiss this matter. 

Entered for the Court 

Jerome A. Holmes 

Circuit Judge 

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