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 CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HARTZ , KELLY , and HOLMES , Circuit Judges.

________________ _________________ More than twenty-five years ago, Sebastian L. Ecclest on 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 provisi on 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 relie f 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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 § 92 4(c), one predicated on carjacking and the other predicat ed 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 th e one predicated on a Hobbs Act violation. FILED United States Court of Appeals Tenth Circuit 

### August 26, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 20-2119 Document: 010110730355 Date Filed: 08/26/2022 Page: 12 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 vi olence, 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. Eccl eston must show “that reas onable jurists could debate whether (or, for that matter, ag ree that) the [motion] should have been resolved in a different manner or that the issues presented were adequate to dese rve 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 c onvicted of Hobbs Act robbery. First, he argues the court erred in concluding that the Hobbs Act is di visible into separate offenses for robbery, attempted robbery, and conspiracy to commit ro bbery. Second, even if the Hobbs Act is divisible into these three robbery-based offens es, he argues, the court erred in concluding that he had been convicted of completed robb ery rather than attempt or conspiracy to commit robbery. Appellate Case: 20-2119 Document: 010110730355 Date Filed: 08/26/2022 Page: 23 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 el ements clause is a felony that “has as an element the us e, attempted use, or threatened use of physical force against the person or property of anot her.” § 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 divi sible 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 usi ng the modified categorical approach. See Mathis v. United States , 579 U.S. 500, 505 (2016). The mo dified categorical approach allows courts to consult certain documents—fo r example, the charging document, plea agreement, and transcript of the plea collo quy—to decide “what crime, with what elements, a defendant was convicted of.” Id. at 505–06. This inquiry focuses “on the elements, rather than th e 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 Appellate Case: 20-2119 Document: 010110730355 Date Filed: 08/26/2022 Page: 34 1257, 1266 (10th Cir. 2017) (bra ckets and internal quotati on marks omitted). Once the court identifies the crime of conviction, it can then use the cate gorical 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 st atute 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 comp onents 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 (int ernal 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 aros e under the Hobbs Act, a statute creating criminal liability for a person who in any way or degree obstructs, de lays, or affects commerce or the movement of any article or commodi ty in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or pr operty in furtherance of a plan or purpose to do anything in violation of this section. § 1951(a). The district cour t concluded that the Hobbs Ac t is divisible into three robbery-based offenses: robbery, attempted robb ery, and conspiracy to commit robbery. The district court’s conclusion is correct because these thre e 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 Appellate Case: 20-2119 Document: 010110730355 Date Filed: 08/26/2022 Page: 45 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 fo r Hobbs Act robbery requires proof, in relevant part, of “the unlawful taki ng or obtaining of personal property from the person or in the presence of an other, against his will, by means of actual or threatened force, or violence, or fear of injury, imme diate or future, to his person or property.” § 1951(b)(1). A conviction for attempted Ho bbs Act robbery requires proof that the defendant “intended to unlawfully take or obta in 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 go vernment 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. Eccles ton’s Crime of Conviction. After deciding that the Hobbs Act defines three separate robbery-based offenses, the district court used the modified categoric al approach to conclude that Mr. Eccleston pleaded guilty to completed robbery. The charging document alleges in part that Mr. Eccleston and his codefendant Appellate Case: 20-2119 Document: 010110730355 Date Filed: 08/26/2022 Page: 56 did unlawfully obstruct, delay and a ffect, and attempt and conspire to obstruct, delay and affect commerce and the movement of articles and commodities in such commerce, by robbe ry as that term is defined in § 1951, in that Eccleston and [his c odefendant] 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 in ternal quotation marks omitted). In the plea agreement, Mr. Eccleston admitted a ne arly identical charge that he did unlawfully obstruct, delay and a ffect, and attempt and conspire to obstruct, delay and affect commerce as that term is defined in § 1951, and the movement of articles and commod ities 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 futu re, 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 coun t 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 co nvicted of completed Hobbs Act robbery. 3 Mr. Eccleston argues that the record refu tes the conclusion that he pleaded guilty to completed Hobbs Act robbery. As he unders cores, the charge he pleaded guilty to says

2 The court’s recitation of the count oc casionally varied from the language we have quoted from the plea agreement, but its re citation 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 orde r, 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. Appellate Case: 20-2119 Document: 010110730355 Date Filed: 08/26/2022 Page: 67 that he “did unlawfully obstruct, delay and affect, and attempt and conspire to obstruct, delay and affect commerce.” Id. (emphasis added) (interna l 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 adm itted that he “did unlawfully take and obtain personal property . . . from th e person and in the presence of [the victim] against her will by means of actual and [threaten ed] 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 elem ents 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 to ward 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 applicati on for a COA and dismiss this matter.

Entered for the Court

Jerome A. Holmes Circuit Judge Appellate Case: 20-2119 Document: 010110730355 Date Filed: 08/26/2022 Page: 7