UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ ________________ 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-C V-00148-CVE-FHM & 4:08-CR-00197-CVE-2) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before HARTZ , BALDOCK , and CARSON , Circuit Judges.

________________ _________________

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). Defe ndant 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 d eclined to issue a certificate of appealability (“COA”). Defendant appeal s. For the following reasons, we decline to issue a COA and dism iss this appeal.

* This order is not binding precedent ex cept under the doctrines of law of the case, res judicata, and collatera l estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. A pp. 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 Court2 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 cr ime 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 c ourt 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 a pplied 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 fi le a second or successive § 2255 motion in district court challenging his § 924(c) c onviction 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 unavaila ble.” 28 U.S.C. § 2255(h)(2). Relying on Davis, Defendant argued th at he was innocent of the § 924(c) charge because Hobbs Act r obbery is not categorically a crime of violence. The district court denied his § 2255 mo tion and did not grant a COA. II. “On appeal from the denial of a § 225 5 motion, ordinarily ‘we review the district court’s findings of fact for clear error and it s conclusions of law de novo.’”3 United States v. Barrett, 797 F.3d 1207, 12 13 (10th Cir. 2015) ( quoting United States v. Rushin, 642 F.3d 1299, 130 2 (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 “r easonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the is sues presented were ‘adequate to deserve encouragement to pr oceed further.’” Sl ack v. McDaniel, 529 U.S. 473, 484 (2000) (quo ting 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 trafficki ng 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 us e, or threatened use of physical force against the person or property of another, or (B) that by its nature, involve s a substantial risk that physical force against the person or property of another ma y be used in the course of committing the offense. § 924(c)(3). In Davis, the Supreme Cour t held that § 924(c)(3)(B)—the “residual clause”—was unconstitutionally vague an d courts must apply the categoricalapproach to determine whether a predicate conviction qualifies as a crime of violence under § 924(c)(3)(A)—the “elements cl ause.” 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 categorica lly a crime of violence. We previously4 rejected this argument in Un ited 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 Defenda nt’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) (holdi ng that given our “binding pr ecedent in Melgar-Cabrera, the constitutionality of . . . § 924(c) convic tions predicated on Hobbs Act robbery is not reasonably debatable.”). For these reasons, we DENY Defendant ’s request for a certificate of appealability and DI SMISS the appeal.

Entered for the Court

Joel M. Carson III Circuit Judge