UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. VERNON LEE BAKER, Defendant - Appellant. No. 17-2174 (D.C. Nos. 1:16-CV-0 0715-PJK-GBW & 1:08-CR-01680-PJK-1) (D. N.M.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY *

________________ _________________ Before MATHESON , EID , and CARSON , Circuit Judges.

________________ _________________ Vernon Lee Baker seeks to appeal the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set asi de or correct his sentence. In his motion, Baker claims his sentence, imposed under the A rmed Career Criminal Act (“ACC A”), 18 U.S.C. § 924(e), is unconstitutional as a result of the Supreme Court’ s invalidation of ACCA’s residual clause in Johnson v. United States , 135 S. Ct. 2551, 2563 (2015). In order to appeal the district court’s deci sion, Baker must first obtain a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1 )(B). For the reasons set forth below, we deny a COA and dismiss this matter.

* This order is not binding prece dent except under the doctrine s of law of the case, res judicata, and collateral esto ppel. It may be cited, howeve r, for its persuasive value consistent with Fed. R. App. P . 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### September 6, 2018
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND Baker was convicted in 2011 by a federal jury of being a felon in possession of a firearm and ammunition in viola tion of 18 U.S.C. § 922(g)(1). This crime ordinarily carries a prison term of up to 10 years, id. § 924(a)(2), but Baker was sentenced to nearly 20 years of imprisonment under A CCA § 924(e), which applies whe n a defendant who violates § 922(g) “has three previous convictions . . . for a v iolent felony or a serious drug offense, or both.” Id. § 924(e)(1). 1 ACCA defines a “violent felony” as “ any crime punishable by imprisonment for a term exceeding one year” that: (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (elements clause); (2) “is burglary, arson, or extortion, [or] involves use of explosives” (enumerated clause); or (3) “otherwise involves conduct that presents a serious potenti al risk of physical injury to another” (residual clause). Id. § 924(e)(2)(B)

. The sentencing court concluded Baker had at least three prior convic tions for a “violent felony” und er this definition, based on his two convictions for armed ro bbery and a conviction for aggr avated battery with a deadly weapon under New Mexico law. In 2015, in Johnson , the Supreme Court invalidated ACCA’s residual clause as unconstitutionally vague, but left the elements and enumerated clauses untouched.
See 135 S. Ct. at 2563. The Supreme Court subsequently made Johnson retroactive to cases on collateral review. See Welch v. United States , 136 S. Ct. 1257, 1265 (2016).

1 Baker unsuccessfully appealed h is conviction but did not chal lenge his ACCA sentencing enhancement. See United States v. Baker , 485 F. App’x 964 (10th Cir. 2012).3 Baker timely filed a § 2255 motio n to vacate his sentence under Johnson , arguing that he should be rese ntenced without the ACCA enhancement beca use both armed robbery and aggravated battery w ith a deadly weapon as defined by New Mexico law qualify as a “violent felony” on ly under ACCA’s now-unconstitut ional residual clause. The magistrate judge recommended the district court deny Baker’ s motion based on his determination that both of Bak er’s crimes qualify as violent fe lonies under ACCA’s elements clause. 2 After considering Baker’s objecti ons, the district court adopte d the magistrate judge’s recommendation and denied a COA. Bak er now seeks to ap peal the district court’s decision. We construe B aker’s notice of appeal as a re quest to this court for the required COA and look to the issu es raised in his opening brief in deciding whether to grant this request. See Fed. R. App. P. 22(b)(2); 10th Cir. R. 22.1(A).
STANDARD FOR OBTAINING A COA To obtain a COA from this court , Baker must make “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), by d emonstrating that “jurists of reason could disagree with the d istrict court’s resolution of h is constitutional claims or that jurists could conclude the issues presented are adequate t o deserve encouragement to proceed further.” Buck v. Davis , 137 S. Ct. 759, 773 (2017 ) (internal quotation marks omitted). In other words , the applicant must show that the dis trict court’s resolution was

2 The magistrate judge also agre ed with the government that ano ther of Baker’s previous convictions, for aggrava ted assault against a househol d member using a deadly weapon, qualifies as a “violent felony” under the elements clau se and could serve as a predicate offense for applying A CCA if needed. B aker did not o bject to this proposed finding and does not challenge the district court’s adoption of it on appeal.4 either “debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). We decide whether Baker has made this sho wing by “a preliminary, though n ot definitive, consideration” of the merits of t he issues on which he seeks a COA. Miller-El v.
Cockrell , 537 U.S. 322, 338 (2003).
STANDARDS OF REVIEW We recently clarified that § 22 55 motions seeking relief under Johnson are to be analyzed under a two-step, h armless-error framework. See United States v. Driscoll , 892 F.3d 1127, 1132 (10th Cir. 2018). At st ep one, the court d etermines error, that is “whether the sentencing court erred by relying on the residual clause to enhance [the defendant’s] sentence.” Id. This is a matter of historical f act to be determined based on the sentencing record or, if the record is unclear, the control ling law at the time of sentencing. See id. ; United States v. Snyder, 871 F.3d 1122, 1128-29 (10th Cir. 2017),
cert. denied , 138 S. Ct. 1696 (2018 ). The defendant bears the burden of pr oof at this step, and “must prove that the se ntencing court, more likely th an not, relied on the residual clause to enhance his sentence under the ACCA.” Driscoll , 892 F.3d at 1135. If the defendant carries this burden , then at step two the court c onsiders whether the sentencing court’s error is harmless. Id. at 1132. The government bears the burden of proof on this question, see United States v. Garcia , 877 F.3d 944, 948 (10th Cir. 2017), petition for cert. filed (U.S. June 18, 2018) (No. 17-94 69), which it can satisfy by showing that “even with the Johnson error, [the defendant] has three predicate convictions to support his enhan ced sentence as an armed career criminal,” Driscoll , 892 F.3d at 1135-36. The harml essness determination is made under curre nt law because5 it considers whether the current classification of the defendan t as a career criminal is correct notwithstanding any Johnson error at the time of sentencing. See Garcia, 877 F.3d at 948-56 (applying cu rrent law in determining that Johnson error was harmless). The district court did not have the benefit of Driscoll when it denied Baker’s motion for relief under Johnson and hence it did not follow this framewo rk. In particular, neither the district court nor t he parties addressed the initia l question of whether it is more likely than not that the sentencing court relied on the re sidual clause in sentencing Baker in 2011. 3
The district court’s denial of re lief nonetheless fits neatly i nto the Driscoll framework because it rests on the court’s determination that Ba ker has three predicate convictions for violent felonies u nder ACCA’s elements clause. In other words, using
Driscoll ’s terminology, the district c ourt held that any reliance by th e sentencing court on the residual clause was harmless because Baker has at least thr ee predicate offenses under ACCA and thus is properly servin g an enhanced sentence as a car eer criminal. A court need not decide whether there was in fact error at the time of sentencing if it can determine the potential error was harmless. See Davis v. Ayala , 135 S. Ct. 2187, 2193

3 The government belatedly touche d on this issue in its respons e to Baker’s objections to the magistrate j udge’s recommendation, arguing fo r the first time that Baker’s § 2255 motion was not timely because he had not shown t hat the sentencing court relied on the residual clau se in enhancing Baker’s senten ce. The district court declined to resolve this argum ent, stating that doing so would at minimum require that Baker be given an opportunity to respond and that in any event it was unnecessary in light of its determination that B aker’s prior offenses qualifie d as violent felonies under ACCA.6 (2015) (reversing grant of habeas corpus relief because “[a]ssu ming without deciding that a federal constitutional error o ccurred, the error was harmless ”). Accordingly, our task in considering whether to grant a CO A here is to determine whether reasonable jurists could debate the district court’s conclusion that Baker has at least three predicate convictions for violent felonies under A CCA’s elements clause. Our standards for addressing this question are well-established . “Whether a prior conviction satisfies . . . ACCA’s violent felony definition is a legal question we review de
novo.” United States v. Titties , 852 F.3d 1257, 1263 (10th Cir. 2017). We determine whether a state conviction “has a s an element the use, attempte d use, or threatened use of physical force against the pers on of another” by looking to fed eral law to define this phrase and to state law to defi ne the substantive elements of t he offense. United States v.
Harris , 844 F.3d 1260, 1263-64 (10th Ci r. 2017) (internal quotation m arks omitted), cert. denied , 138 S. Ct. 1438 (2018). In con ducting our review of the rele vant state law, “we apply the categorical approach, fo cusing on the elements of the crime of conviction, not the underlying facts.” Id. at 1263. But if a state statute i s divisible, such that it “se ts out one or more elements of the offens e in the alternative,” then t he modified categorical approach applies. Descamps v. United States , 570 U.S. 254, 257 (2013). Under this approach, we may “l ook[ ] to a limited cl ass of documents (for example, the indictment, jury instructions, or plea agreem ent and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Mathis v. United States , 136 S. Ct. 2243, 2249 (2016).7 Once the crime of conviction is d etermined, we “focus on the le ast of the acts criminalized” under the re levant state statute, Garcia , 877 F.3d at 949 (internal quotation marks and emphasis omitted), to de termine, in the case of ACCA’ s elements clause, whether the crime has as an ele ment the use, attempted use or t hreatened use of physical force against another. “Physical force” in this context means “ violent force—that is, force capable of causing physical p ain or injury to another per son.” Johnson v. United
States , 559 U.S. 133, 140 (2010).
ANALYSIS In his opening brief, Baker renews his argument that armed robb ery and aggravated assault with a deadly weapon, as defined by New Mexi co law, do not qualify as violent felonies under ACCA’s elements clause. The district court rejected these arguments and denied Baker’s mo tion based our precedent and New Mexico law. Reasonable jurists would not deba te the district court’s decisi on. A. Armed robbery convictions Baker was convicted of armed robbe ry under N.M. Stat. Ann. § 30 -16-2. It provides: Robbery consists of the theft o f anything of value from the per son of another or from the immediat e control of another, by use or threatened use of force or violence

. Whoever commits robbery is guilty of a third degree felony. Whoever commits robbery while arm ed with a deadly weapon is, fo r the first offense, guilty of a sec ond degree felony and, for second and subsequent offenses, is guilty of a first degree felony. N.M. Stat. Ann. § 30-16- 2 (emphasis added).8 In United States v. Garcia , issued after the district c ourt ruled but before Baker filed his brief in this court, we considered whether a convicti on under N.M. Stat. Ann. § 30-16-2 qualifies as a violent felony under ACC A’s elements c lause. The robbery conviction in that case was for t hird degree robbery—that is, r obbery without being armed with a deadly weapon. 877 F.3d at 949 n.2. Applying the categorical approach, we reviewed how New Mexico courts have discussed and applied th e statutory “force or violence” element of this offense. Id. at 950-56. Based on this review and the Supreme Court’s definition of “physical force” as used in ACCA, we conc luded—like the district court in this case—that third-deg ree or “simple” robbery under N.M. Stat. Ann. § 30-16-2 categorically has as an element t he use or threatened use of ph ysical force against another person and thus is a violent felo ny under ACCA’s elements claus e. Id. at 956. If simple robbery under N.M. Stat . Ann. § 30-16-2 qualifies as a violent felony under the elements clause, then Baker’s conviction under the sa me statute for robbery “while armed with a d eadly weapon” does as well. Accordingly, reasonable jurists could not debate that Baker’s New Mexico armed ro bbery convictions we re convictions for violent felonies under ACCA. 4

4 Baker acknowledged in his brief that Garcia forecloses this court from holding that New Mexico armed robbery does not satisfy ACCA’s elements clause. See Tootle v. USDB Commandant , 390 F.3d 1280, 1283 (10th Cir. 2004) (“We are bound by the precedent of prior pan els absent en banc reconsideration or a s uperseding contrary decision by the Supreme Court.” (internal quotation marks omitt ed)). He reports that he nonetheless raised and argued th is issue in order to preserve i t in case Garcia is overturned.9 B. Conviction for aggravated battery with a deadly weapon The parties agree Baker was convi cted of felony aggravated batt ery with a deadly weapon under N.M. Stat. Ann. § 3 0-3-5. It provi des as relevant here: “Aggravated battery consists of the unlawfu l touching or application of for ce to the person of another with intent to injure that person or anot her. . . . Whoever com mits aggravated battery . . . with a deadly wea pon . . . is guilty of a third d egree felony.” Id. § 30-3-5(A), (C). New Mexico defines a deadly weapon as “any firearm, wheth er loaded or unloaded; or any weapon which is capable of producing death or great bodi ly harm.” Id. § 30-1-12. Baker argues aggravated battery with a deadly wea pon under this authority does not require proof of “violent forc e” against the person of anot her because it may be committed by unlawfully touching the person of another with a d eadly weapon, such as the butt of a pistol, with the int ent to injure a third person rather than the person being touched. In othe r words, Baker argues th at without the unlawfu l touching with a deadly weapon and the intent to injure b eing directed at the same pers on, this offense does not require proof of “the use, attempted use, or threat ened use of physical force ag ainst the person of another” as necessary t o satisfy ACCA’s element claus e. Baker cites no authority in sup port of this contention. And even assuming his hypothetical presents a realis tic probability of conduct that w ould violate the New Mexico statute, see Garcia , 877 F.3d at 956 (“We are concerned with realistic probabilities, not theoretical possibilities, of conviction und er the statute”), his conclusion that this scenario does not at le ast threaten the use of physic al force against another is contrary to our precedent.10 In United States v. Maldonado-Palma , 839 F.3d 1244 (10th Cir. 2016),
cert. denied , 137 S. Ct. 1214 (201 7), for example, we he ld that under New M exico law “[e]mploying a weapon that is cap able of producing death or gre at bodily harm or inflicting dangerous wounds in a n assault necessarily threatens the use of physical force, i.e., ‘force capable of causing ph ysical pain or injury to anot her person.’” 5 Id. at 1250 (quoting Curtis Johnson , 559 U.S. at 140). S imilarly, we held in United States v. Taylor , 843 F.3d 1215 (10th Cir. 2016), cert. denied , 137 S. Ct. 1608 (2017), that “the use of a dangerous weapon during an assau lt or battery always constitute s a sufficient threat of force to satisfy the elements clause.” 6 Id. at 1224 (internal quotation marks omitted). This is so, among other things, b ecause intentionally touching another with a deadly weapon “could at least put the vic tim on notice of the possibil ity that the weapon will be used more harshly in the future , thereby constituting a threate ned use of force.” United
States v. Ramon Silva , 608 F.3d 663, 672 (10th Cir. 2 010) (internal quotation marks omitted). It is not debatable under this pr ecedent that touching a person with a deadly weapon, even while intending to i njure a third person, necessar ily threatens the use of

5 Baker argues Maldonado-Palma is distinguishable because it was analyzing whether a conviction for aggrava ted assault qualified as a crim e of violence under the enumerated clause of U.S. Sente ncing Guidelines § 2L1.2. In fa ct, the language quoted above was part of the court’s an alysis of whether aggravated as sault with a deadly weapon satisfies § 2L1.2’s eleme nts clause, which employs simil ar language as ACCA’s elements clause. 839 F.3d at 1 248-1250. We also have approved the use of precedents under each of these clauses as gui dance in interpreting the oth er. See id. at 1248.

6 We also noted in Taylor that the definition of “dangero us weapon” at issue there is “very similar” to the defin ition of “deadly weapon” under Ne w Mexico law. See 843 F.3d at 1223.11 physical force against one or b oth of these persons. Thus, we conclude that reasonable jurists could not debate that a ggravated battery with a deadly weapon under N.M. Stat. Ann. § 30-3-5(A), (C) “ has as an element the use, attempted use , or threatened use of physical force against the pers on of another,” 18 U.S.C. § 924( e)(2)(B)(i), and thus serves as a third prior violent felony conviction for sentencing enhan cement under ACCA.
CONCLUSION For the foregoing reas ons, reasonable jurist s could not debate that Baker had at least three predicate convictio ns for sentencing enhancement un der ACCA and that the district court therefore proper ly denied his motion for relief under § 2255. Accordingly, we deny a COA and di smiss this matter. Entered for the Court

Joel M. Carson Circuit Judge