UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. PIYARATH S. KAYARATH, Defendant - Appellant. No. 20-3086 (D.C. Nos. 6:20 -CV-01041-JWB & 6:94-CR-10128-JWB-2 &

6:94-CR-10123-JWB-2) (D. Kansas)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before PHILLIPS , MURPHY , and McHUGH , Circuit Judges.

________________ _________________ Appellant Piyarath Kayarath seeks a ce rtificate of appealability (“COA”) to challenge the district court’s denial of hi s 28 U.S.C. § 2255 motion, which argued Hobbs Act robbery and attempted Hobbs Act robbery are not categorically crimes of violence under 18 U.S.C. § 924(c), and the district c ourt’s denial of his Fe d. R. Civ. P. 60(b) motion, which argued his 18 U.S. C. § 924(j)(1) conviction is vo id due to our decision in United States v. Melgar-Cabrera , 892 F.3d 1053 (10th Cir. 2018).

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 

### July 30, 2020 Christopher M. Wolpert Clerk of Court2 I. BACKGROUND In 1997, Mr. Kayarath was convicted follo wing a jury trial of one count of Hobbs Act robbery in viola tion of 18 U.S.C. § 1951 and one count of carrying and using a firearm during and in relation to a crime of vi olence, as defined by 18 U.S.C. § 924(c), and during the course thereof ca using the death of a person by murder through the use of a firearm in violation of 18 U.S.C. § 924(j)(1). See United States v. Kayarath , 41 F. App’x 255, 256 (10th Cir. 2002). 1 He was sentenced to life imprisonment for the § 924(j)(1) murder conviction. Id. In 2001, Mr. Kayarath file d a 28 U.S.C. § 2255 motion challenging his murder conviction. Id. at 256–57. The district court denied the motion, and a panel of this court denied his subsequent request for a COA. Id. In 2016, Mr. Kayarath moved for authoriza tion from this court to file a second or successive § 2255 motion in orde r to again challenge his § 924(j)(1) murder conviction. He argued the predicate offense underlying hi s murder conviction, namely the Hobbs Act robbery, does not qualify as a crime of violen ce as defined by § 924(c) after the Supreme Court’s decision in United States v. Davis , 139 S. Ct. 2319 (2019). Specifically, he claimed Hobbs Act robbery could qualify as a crime of violence only under § 924(c)(3)’s residual clause, which the Supreme Court, in Davis , invalidated as unconstitutionally vague. 139 S. Ct. at 2336. In January 2020, a panel of this court granted Mr. Kayarath’s

1 At the time Mr. Kayarath was convicted, the provision of § 92 4 now codified at subsection (j)(1) was codi fied at subsection ( i )(1). See Kayarath , 41 F. App’x at 257. We refer to subsection (j)(1) for purposes of this order because that is the current location of the provision at issue.3 authorization to file a second or successive § 2255 motion to challenge his § 924(j)(1) murder conviction in light of Davis

. 2 See 28 U.S.C. § 2255(h)(2). While his motion to file a second or su ccessive § 2255 motion remained pending in this court, Mr. Kayarath filed in the dist rict court a Fed. R. Civ. P. 60(b) motion for relief from judgment in his criminal case. He argued his § 924(j)(1) murder conviction is void following our decision in United States v. Melgar-Cabrera , 892 F.3d 1053 (10th Cir. 2018), which overruled previous authority a nd held that § 924(j) sets forth a “discrete crime” rather than “merely a sentencing en hancement” that applies when a § 924(c) violation results in murder. 892 F.3d at 1060. Based on Melgar-Cabrera , Mr. Kayarath asserted numerous errors arising from his bei ng charged with viola ting both § 924(j) and § 924(c) in the same count of the indictment and the jury’s returning of a general verdict of guilty on that count. 3 After receiving authorization, Mr. Kayarath filed his second or successive § 2255 motion in February 2020. He argued that Hobbs Act robbery does not meet § 924(c)’s definition of a crime of violence under the el ements clause. Because, in his view, Hobbs Act robbery is not a crime of violence unde r § 924(c)’s elements clause and because
Davis precluded it from being a crime of violence under the residual clause, Mr. Kayarath

2 Mr. Kayarath’s motion was abated be tween June 2016 and January 2020. See R. vol. II at 17; see also Order, In re Kayarath , No. 16-3172 (10th Ci r. June 24, 2016).

3 In a supplement to his Rule 60(b) motion, Mr. Kayarath, citing Miller v. Alabama , 567 U.S. 460 (2012), and Montgomery v. Louisiana , 136 S. Ct. 718 (2016), also argued his life sentence violated the Eighth Amendment because he was eighteen years old and thus di d not have a fully de veloped brain at the time he committed the offense. Mr. Kayarath’s application does not seek a COA to pursue this argument.4 contended he was actually innocent of the § 92 4(j)(1) murder charge. Mr. Kayarath also argued the record showed he was charged with, and convicted of, attempted Hobbs Act robbery, which, following Davis , is not categorically a crime of violence under § 924(c). The district court denied Mr. Kayarath’s § 2255 motion, conc luding our precedent foreclosed his argument that Hobbs Act robbery is not categorically a crime of violence for purposes of § 924(c) and (j)(1). The court ruled Mr. Kaya rath’s arguments concerning attempted Hobbs Act robbery were meritless because the record showed Mr. Kayarath was charged with, and convicted of, robbery , not attempted robbery. The court also dismissed Mr. Kayarath’s Rule 60(b) motion for lack of jurisdic tion on the ground it amounted to a second or suc cessive collateral attack on his § 924(j)(1) conviction that has not been authorized by this court. Finally, the court denied a COA.
II. DISCUSSION Mr. Kayarath filed a notice of appeal and an application seeking a COA to challenge the district court’s order denyin g his § 2255 motion and dismissing his Rule 60(b) motion. A COA will issue “only if the a pplicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court denies § 2255 relief on the merits, this standard typi cally requires an applicant to demonstrate that “‘reasonable jurists would find the dist rict court’s assessment of the constitutional claims debatable or wrong.’” United States v. Springer , 875 F.3d 968, 981 (10th Cir. 2017) (quoting Slack v. McDaniel , 529 U.S. 473, 48 4 (2000)). When the district court denies relief on procedural grounds, such as by dismissing an una uthorized second or successive § 2255 motion, the applicant must de monstrate “‘that jurists of reason would5 find it debatable whether the pe tition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.’” Id. (internal quotation marks omitted) (quoting, ultimately, Slack , 529 U.S. at 484). A. Section 2255 Motion In his application for a COA, Mr. Kayarath argues, as he did in the district court, that Hobbs Act robbery is not categorically a crime of violence for purposes of § 924(c) and thus cannot constitute a predicate offe nse for his § 924(j)(1) murder conviction. Because, in his view, Hobbs Act robbery coul d only constitute a crim e of violence under the residual clause invalidated by the Supreme Court in Davis , Davis compels the conclusion that his § 924(j)(1) conviction is unconstitutional. We are not persuaded. As the di strict court noted, we held in Melgar-Cabrera that Hobbs Act robbery categorically “ is a crime of violence under the elements clause of § 924(c)(3).” 892 F.3d at 1060 n.4 (emphasis added); see also United States v. GarcíaOrtiz , 904 F.3d 102, 109 (10th Cir. 2018) (“[W]e therefore hold that because the offense of Hobbs Act robbery has as an element the use or threatened use of physical force capable of causing injury to a person or pr operty, a conviction for Hobbs Act robbery categorically constitutes a ‘crime of violence’ under section 924(c)’s [elements] clause.”).
In Melgar-Cabrera , we rejected several arguments Mr. Kayarath now raises in his application. For instance, Mr. Kayarath assert s that robbery, as defined in the Hobbs Act, requires the use or threatened use of only de minimis force. However, we concluded it requires the use or threatened use of violen t force, satisfying § 9 24(c)’s use-of-force6 requirement. See Melgar-Cabrera , 892 F.3d at 1061–65 (citing, inter alia , Johnson v. United States , 559 U.S. 133 (2010)). Mr. Kayarath also contends Hobbs Act robbery, because it may be accomplished by placing another in fear of injury, does not require the use of physical force. We re jected a similar argument in Melgar-Cabrera , concluding that taking property from a person by placing him in fear of injury is accomplished by threatening the applicati on of physical force. See id. at 1065–66; see also García-Ortiz , 904 F.3d at 107 (“[T]he ‘fear of injury’ co ntemplated by the statute must be like the ‘force’ or ‘violence’ described in the clause s preceding it.”). Subseq uent decisions have likewise rejected Mr. Kayarath’s assertion that Hobbs Act robbery does not satisfy § 924(c)’s use-of-force requirement because it may be accomplished by threatening injury to property. See García-Ortiz , 904 at 107; United States v. Rojas , 748 F. App’x 777, 779 (10th Cir. 2018); United States v. Dubarry , 741 F. App’x 568, 570 (10th Cir. 2018). In sum, Melgar-Cabrera held Hobbs Act robbery satis fies § 924(c)’s elements clause and is thus categorically a crime of violence for purposes of that provision. Mr. Kayarath’s arguments challenging this holding have been consistently rejected, and the Supreme Court’s decision in Davis , on which Mr. Kayarath relied for authorization to commence this proceeding, does not call it into question. See United States v. Myers , 786 F. App’x 161, 162–63 (10th Cir. 2019). Given th is precedent, no jurist of reason would find the district court’s determ ination debatable or wrong. As he did in the district court, Mr. Kayarath also argues that the Hobbs Act robbery count of the indictment charged him with attempted Hobbs Act robbery and that the trial court’s jury instructions demonstr ate the jury found hi m guilty of attempted7 Hobbs Act robbery. He contends attempted Hobbs Act robbery does not qualify as a crime of violence under § 924(c) after Davis . The district court ru led this argument was meritless because the record showed Mr. Kaya rath was indicted for, and found guilty of, robbery, not attempted robbery. No jurist of reason would find the distri ct court’s ruling debatable or wrong. As recited by the trial court in its jury instruc tions, the indictment’s Hobbs Act count alleged Mr. Kayarath “did unlawfully . . . obstruc t, delay[,] and affe ct commerce and did attempt to obstruct, delay[,] and affect commerce,” but it proceeds to allege he did so “ by robbery ,” not attempted robbery, and further specifies he “ did take and obtain ” property from another, rather than merely attempting to do so. R. vol. IV at 34 (emphasis added). “This language alleges robbery; it cannot re asonably be construed as alleging attempted robbery.” United States v. Coyazo , 95 F. App’x 261, 266 (1 0th Cir. 2004). Moreover, the trial court instructed the jury that th e indictment charged Mr. Kayarath “with robbery ,” explaining that the Hobbs Act criminalizes “obstruct[ing], delay[ing,] or affect[ing] interstate commerce . . . by robbery .” R. vol. IV at 36 (emphasi s added). The court further instructed the jury that, to find Mr. Kayara th guilty of the Hobbs Act count, it must find he “obtained or took” another’s property “against the victim’s will, by means of actual or threatened force, violence, or fear of injury,” which, the c ourt informed th e jury, is the definition of “‘[ r ] obbery .’” Id. at 37–38 (emphasis added). An d, the judgment entered by the court describes the offense of conviction as “Interference With Commerce By Threats or Violence,” making no mention of an attempt component. Id. at 67. The jury8 instructions and the judgment thus confir m Mr. Kayarath was convicted of Hobbs Act robbery, not attempte d Hobbs Act robbery. See Coyazo , 95 F. App’x at 266–67. Mr. Kayarath points out both the indictme nt and jury instructions regarding the § 924(j)(1) murder count define d murder in accordan ce with 18 U.S.C. § 1111, stating that murder committed in the perpetration of a robbery or attemptedrobbery is firstdegree murder. See 18 U.S.C. § 924(j) (cross-referencin g § 1111’s definition of murder). These attenuated references to attempted robb ery do not alter the an alysis. Although the murder count of the indictment stated a mu rder committed during an attempted robbery would qualify for § 924(j)(1) liability, it specifically allege d Mr. Kayarath’s liability was based on “the robbery ” underlying the Hobbs Act count. R. vol. IV at 35 (emphasis added). Further, the trial court instructed the jury that, to find Mr. Kayarath guilty of the murder charge, it must find that he “ robbed ,” not attempted to rob, another and “[d]uring the robbery ,” not attempted robbery, caused the death of another by murder. Id. at 44 (emphasis added). More importa ntly, the mere fact attempted robbery is mentioned in relation to the definition of murder for purpose s of the § 924(j)(1) count does not change the fact that both the indictment and the inst ructions relating to th e Hobbs Act count refer specifically to robbery, not attempted robbery. Because we conclude no jurist of reason wo uld find the district court’s ruling that Mr. Kayarath was charged with, and convic ted of, Hobbs Act robbery rather than attempted Hobbs Act robbery deba table or wrong, we need not address the district court’s alternative ruling that atte mpted Hobbs Act robbery does not constitute a crime of violence under § 924(c).9 B. Rule 60(b) Motion In evaluating the denial of a Rule 60(b) mo tion in a habeas case, “[o]ur first task . . . is to consider . . . the issues raised in the motion in order to determine whether it represents a second or successive [habeas motion or] a ‘true’ Rule 60(b) motion.” Spitznas v. Boone , 464 F.3d 1213, 1224 (10th Cir. 2006). A prisoner may not file a second or successive § 2255 motion unless he first obtains an order from this court authorizing the district cour t to consider the motion. See Springer , 875 F.3d at 972. Absent such authorization, a district court lacks jurisdiction to address the merits of a second or successive § 2255 motion and must e ither dismiss the motion or transfer it to this court if doing so is in the interests of justice. Id. The district court determined Mr. Kayarath ’s motion amounted to an unauthorized second or successive § 2255 motion. Mr. Kayara th does not contest this determination in his application but, instead, continues to pr ess the merits of the motion, arguing his § 924(j)(1) conviction is void in light of Melgar-Cabrera ’s holding that § 924(j) sets forth a discrete crime rather th an a sentencing enhancement. No jurist of reason would find the distri ct court’s procedural ruling debatable or wrong. Mr. Kayarath’s Rule 60(b) motion am ounts to a second or successive § 2255 motion. Not only does he fail to contest the point in his application, but there is no question the motion “in substance or effect asse rts . . . a federal basis for relief from [his] underlying conviction,” rendering it a sec ond or successive § 2255 motion. Spitznas , 464 F.3d at 1215; see also United States v. Mazun , 369 F. App’x 876, 878 (10th Cir. 2010) (explaining a motion requiring a court to conc lude a criminal judgment is void “is the10 proper subject of § 2255 motion, not a Rule 60(b) motion”). Nor is there any doubt Mr. Kayarath has not been authorized to bring this argument in a second or successive § 2255 motion. His argument does not implicate Davis , so our order authorizing a § 2255 motion in light of that decision does not aid him. And, a panel of this court previously denied Mr. Kayarath authorization to assert this same argument in a sec ond or successive § 2255 motion. See Order, In re Kayarath , No. 18-3225 (10th Cir. Oct. 29, 2018).
III. CONCLUSION Accordingly, we DENY Mr. Kayarath’s application for a COA and DISMISS the appeal.

Entered for the Court
Carolyn B. McHugh Circuit Judge