UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

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UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

MARCO A. HENDRICKSON, a/k/a 

Angele Marco Hendrickson, 

 Defendant - Appellant. 

No. 20-5060 

(D.C. Nos. 4:20-CV-00148-CVE-FHM & 

4:08-CR-00197-CVE-2) 

(N.D. Okla.) 

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ORDER DENYING CERTIFICATE OF APPEALABILITY*

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Before HARTZ, BALDOCK, and CARSON, Circuit Judges. 

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Defendant-Appellant Marco Hendrickson is serving a sentence for Hobbs Act 

robbery, in violation of 18 U.S.C. § 1951, and possession of a firearm in furtherance 

of a crime of violence, in violation of 18 U.S.C. § 924(c). Defendant filed a pro se 

motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255—

which the district court denied. The district court also declined to issue a certificate 

of appealability (“COA”). Defendant appeals. For the following reasons, we decline 

to issue a COA and dismiss this appeal. 

* This order is not binding precedent except under the doctrines of law of the 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

FILED 

United States Court of Appeals 

Tenth Circuit 

December 11, 2020

Christopher M. Wolpert 

Clerk of Court
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I. 

In 2009, the district court sentenced Defendant to 271 months’ imprisonment 

after Defendant pleaded guilty to (1) Hobbs Act robbery in violation of 18 U.S.C. 

 § 1951 and (2) possession of a firearm in furtherance of a crime of violence in 

violation of 18 U.S.C. § 924(c). Defendant received a consecutive sentence of 151 

months for count one and 120 months for count two. 

Some ten years after the district court sentenced Defendant, the Supreme 

Court, in United States v. Davis, 139 S. Ct. 2319, 2336 (2019), announced a new rule 

of Constitutional law when it concluded that § 924(c)(3)(B) was unconstitutionally 

vague. We determined the Davis rule applied retroactively to cases on collateral 

review. See United States v. Bowen, 936 F.3d 1091, 1097–98 (10th Cir. 2019). 

Defendant then sought authorization to file a second or successive § 2255 motion in 

district court challenging his § 924(c) conviction and sentence under Davis. We 

granted Defendant authorization because his motion relied on “a new rule of 

constitutional law, made retroactive to cases on collateral review by the Supreme 

Court, that was previously unavailable.” 28 U.S.C. § 2255(h)(2). 

Relying on Davis, Defendant argued that he was innocent of the § 924(c) 

charge because Hobbs Act robbery is not categorically a crime of violence. The 

district court denied his § 2255 motion and did not grant a COA. 

II. 

“On appeal from the denial of a § 2255 motion, ordinarily ‘we review the 

district court’s findings of fact for clear error and its conclusions of law de novo.’” 
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United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quoting United States 

v. Rushin, 642 F.3d 1299, 1302 (10th Cir. 2011)). But Defendant must obtain a COA 

before we will conduct such a review. 28 U.S.C. § 2253(c)(1). To obtain a COA, 

Defendant must show that “reasonable jurists could debate whether . . . the petition 

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) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). 

III. 

Section 924(c) prohibits the use or carry of a firearm “during and in relation to 

any crime of violence or drug trafficking crime” or possession of a firearm “in 

furtherance of any such crime.” § 924(c)(1)(A). The statute defines a crime of 

violence as: 

An offense that is a felony and— 

(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. 

§ 924(c)(3). In Davis, the Supreme Court held that § 924(c)(3)(B)—the “residual 

clause”—was unconstitutionally vague and courts must apply the categoricalapproach to determine whether a predicate conviction qualifies as a crime of violence 

under § 924(c)(3)(A)—the “elements clause.” 139 S. Ct. at 2329–36. 

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 
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rejected this argument in United States v. Melgar-Cabrera, where we explicitly held 

that Hobbs Act robbery is categorically a crime of violence under 

§ 924(c)(3)(A)—the elements clause. 892 F.3d 1053, 1060–66 (10th Cir. 2018). 

And despite numerous arguments like Defendant’s, neither we nor the Supreme Court 

have reversed Melgar-Cabrera. See e.g. United States v. Toki, 822 F.App’x 848, 853 

(2020) (unpublished) (holding that given our “binding precedent in Melgar-Cabrera, 

the constitutionality of . . . § 924(c) convictions predicated on Hobbs Act robbery is 

not reasonably debatable.”). 

For these reasons, we DENY Defendant’s request for a certificate of 

appealability and DISMISS the appeal. 

Entered for the Court 

Joel M. Carson III 

Circuit Judge