UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. SHAMON DOMINIC PACHECO, Defendant - Appellant. No. 17-2115 (D.C. Nos. 1:16-C V-00341-WJ-CG and 1:03-CR-2367-WJ-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , BALDOCK , and BACHARACH , Circuit Judges.

________________ _________________ Shamon Dominic Pacheco ap peals from a district court order that denied his 28 U.S.C. § 2255 motion to vacate his arme d-career criminal sentence. Exercising jurisdiction under under 18 U.S.C. § 37 42 and 28 U.S.C. § 1291, we affirm.
B ACKGROUND In 2005, Pacheco pled guilty to being a felon in possession of a firearm or ammunition, in violation of 18 U.S.C. § 922(g)(1). The presentence report (PSR) indicated that Pacheco qualified for the manda tory minimum fifteen-year sentence under

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 6, 2018
Elisabeth A. Shumaker Clerk of Court2 the Armed Career Criminal Act (ACCA), as he had three or more prior violent felony convictions, 18 U.S.C. § 924(e). Specifically , the PSR identified mu ltiple predicate New Mexico convictions for crimes committed on th ree different occasions: (1) aggravated assault with a deadly weapon, see N.M. Stat. Ann. § 30-3-2(A ), and shooting at or from a motor vehicle, see id. § 30-3-8(B); (2) another aggravat ed assault and another vehicular shooting; and (3) aggravated batt ery against a household member, see id. § 30-3-16. At sentencing, the district court adopted the PS R’s finding that Pacheco qualified as an armed-career criminal and sentenced him to fi fteen years’ imprisonment. But neither the PSR nor the district court addressed what clause of the ACCA governed Pacheco’s

sentence. See 18 U.S.C. § 924(e)(2)(B) (defining “viole nt felony” as an offense that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the elemen ts clause); (2) “is burglary, arson, or extortion, [or] involves use of explosives” (the enumerated-o ffenses clause); or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another” (the residual clause)). In 2016, Pacheco sought § 2255 relief from his sentence based on the Supreme Court’s determination that the ACCA’s re sidual clause violates due process. See Samuel Johnson v. United States , 135 S. Ct. 2551, 2557 (2015); see also Welch v. United States , 136 S. Ct. 1257, 1265 (2 016) (holding that Samuel Johnson applies retroactively to cases on collateral review). The district court de nied relief, concluding that Pacheco’s two convictions for aggravated assault and one co nviction for aggravated battery fell under the ACCA’s elements clause, rather than the invalidated residual clause. This court3 granted Pacheco a certificat e of appealability on the Samuel Johnson issue, to which we

now turn. D ISCUSSION I. Standards of Review “Whether a prior conviction satisfies th e 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). In conducting our review, “we apply the categorical approach, focusing on the elements of the crime of conviction, not the underlying facts.” United States v.
Harris , 844 F.3d 1260, 1263 (10th Cir. 2017). But if a statute is divisible, such that it “sets out one or more elements of the offe nse in the alternative, ” then the modified categorical approach applies. Descamps v. United States , 570 U.S. 254, 257 (2013). The modified categorical approach permits us to “look[ ] to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Mathis v. United States , 136 S. Ct. 2243, 2249 (2016). II. Aggravated Assault We begin with Pacheco’s two convictions fo r aggravated assault. In New Mexico, [a]ggravated assault consists of either: A. unlawfully assaulting or striking at another with a deadly weapon; B. committing assault by threatening or menacing another while wearing a mask, hood, robe or other covering up on the face, head or body, or while disguised in any manner, so as to conceal identity; or C. willfully and intentionally assaulti ng another with intent to commit any felony.4 Whoever commits aggravated assault is guilty of a fourth degree felony. N.M. Stat. Ann. § 30-3-2. This “statute is a divisible statute because it sets out alternative elements for aggravated assault in three subsections.” United States v. Maldonado-Palma , 839 F.3d 1244, 1247 (10th Cir. 2016). Because Pacheco acknowledges he was convicted of the deadly-weapon versi on of aggravated assault, see N.M. Stat. Ann. § 30-3-2(A), the modified cate gorical approach is satisfied, and we must “apply the categorical approach and examine onl y the elements of [§ 30-3-2(A)], without regard to [Pacheco’s] specific conduct,” Maldonado-Palma , 839 F.3d at 1247, 1248. As set forth above, subsection (A) provides that “[a]ggravated assault consists of . . . unlawfully assaulting or striking at another with a deadly weapon[. ]” N.M. Stat. Ann. § 30-3-2(A). 1 For this statute to satisfy the AC CA’s elements clause, it must require

“ violent force—that is, force capable of causi ng physical pain or injury to another person.” Curtis Johnson v. United States , 559 U.S. 133, 140 (2010).
In Maldonado-Palma , this court held that subsection (A) meets the Curtis Johnson standard of violent force. 839 F.3d at 1250 . Critical to the court’s reasoning was that aggravated assault with a d eadly weapon requires “actual us e” of a weapon “capable of producing death or great bodily harm or infl icting dangerous wounds in an assault.” Id. (internal quotation marks omitted). Although Maldonado-Palma applied the elements clause of § 2L1.2 of the U. S. Sentencing Guidelines, it is instructive “in determining

1 Although subsection (A) pros cribes either “unlawfully assaulting or striking at another,” these are alterna tive means of committing assault, rather than elements of the crime, and thus, they do not tri gger modified-categorical analysis. See Maldonado-Palma , 839 F.3d at 1248 n.4.5 whether a conviction qualifies as a violent felony” under the ACCA. United States v. Ramon Silva , 608 F.3d 663, 671 (10th Cir. 2010) (internal quotation marks omitted). 2 Nevertheless, Pacheco su ggests that we declare Maldonado-Palma wrongly decided so that we might follow the Si xth Circuit’s contrary decision in United States v. Rede-Mendez , 680 F.3d 552, 558 (6th Cir. 2012) ( holding that § 30-3-2(A) does not categorically satisfy the elements clause of Gu ideline § 2L1.2). But we are not at liberty as a panel to overrule th is circuit’s precedent. See United States v. Springer , 875 F.3d 968, 974-75 (10th Cir. 2017). 3 In short, Maldonado-Palma directs that § 30-3-2(A) convictions have as an element violent force. We therefore conc lude that Pacheco’s two aggravated-assault convictions satisfy the ACCA’s elements clause, and therefore, the Supreme Court’s invalidation of the ACCA’s residual clau se had no bearing on his sentence.

2 Like the ACCA’s elements clause, the § 2L1.2 elements clause asks whether the crime of conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another,” U.S. Se ntencing Guidelines Manual § 2L1.2 cmt. n.2 (U.S. Sentencing Comm’n 2015); see also 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” under the ACCA as any crime that “has as an element the use, attempted use, or threatened use of physi cal force against the person of another”).

3 To the extent Pacheco attempts to manufacture an intra-circuit split by arguing that Maldonado-Palma conflicts with United States v. King , 979 F.2d 801 (10th Cir. 1992), we are unpersuaded. In King , this court held that New Mexico conspiracy convictions do not include a threatened use of physical force for purposes of the ACCA’s elements clause becau se a conspiracy “is complete upon the formation of the intent to commit a felony, and does not require that any action be taken on that intent.” Id. at 803. King ’s holding is plainl y inapplicable to Maldonado-Palma or the case at bar, neither of which involves a conspiracy conviction.6 III. Aggravated Battery Against a Hous ehold Member Having found two qualifyi ng ACCA convictions, we now turn to Pacheco’s conviction for aggravated batte ry against a household member. 4 The applicable statute consists of a definitional subsection followed by alternative subsections establishing the crime as either a misdemeanor or felony based on the resulting harm: A. Aggravated battery against a house hold member consists of the unlawful touching or application of force to th e person of a household member with intent to injure that person or another. B. Whoever commits aggravated ba ttery against a household member by inflicting an injury to that person that is not likely to cause death or great bodily harm, but that does cause pa inful temporary disfigurement or temporary loss or impairment of the f unctions of any member or organ of the body, is guilty of a misdemeanor. C. Whoever commits aggravated ba ttery against a household member by inflicting great bodily harm or doing so with a deadly weapon or doing so in any manner whereby great bodily harm or death can be inflicted is guilty of a third degree felony. N.M. Stat. Ann. § 30-3-16. This statute is divisible “on its face,” as it “carr[ies] different punishments.” Mathis , 136 S. Ct. at 2256. Thus, we must “review the record ma terials to discover which . . . alternative[ ] played a part in [Pache co’s] prior conviction.” Id. The only document used to identify Pachec o’s prior convictions was the PSR. The PSR states that Pacheco co mmitted “Aggravated Battery Ag ainst a Household Member (Deadly Weapon),” for wh ich he was sentenced to “3 year s imprisonment, plus [a] 1 year firearm enhancement.” R., Vol. III at 13. In an accompanying section, the PSR recites

4 Because we ultimately c onclude that Pacheco’s aggr avated-battery conviction satisfies the ACCA’s elements clause, we n eed not decide whethe r his convictions for shooting at or from a motor vehicle likew ise qualify him for an ACCA sentence.7 the facts of the crime “[a]cco rding to Court documents.” Id. at 14. At sentencing, Pacheco’s counsel did not obj ect to the PSR, and counsel acknowledged that Pacheco “was sentenced to a series of [state] felonies .” R., Vol. IV at 4. Although a PSR is generally not an approved source for asce rtaining the facts underlying a conviction, see United States v. Rooks , 556 F.3d 1145, 1148 n.4 (10th Cir. 2009), we may look to the PSR to ascertain what statute formed th e basis of the defendant’s conviction, see United States v. Sykes , 598 F.3d 334, 339 (7th Cir. 2010); see, e.g. , United States v. West , 550 F.3d 952, 956-57 (10th Cir. 2008) (stating that a PSR can establish “the factual existence of [ACCA] predicat e convictions” where defense co unsel “fail[s] to object to the information regarding th[o ]se convictions already contained in the PSR” (emphasis omitted)), partially overruled on other grounds by Chambers v. United States , 555 U.S. 122 (2009). Consequently, we focus our a ttention on subsections (A) and (C), for the felony version of aggravated ba ttery against a household member. Although subsection (A) alternatively pr oscribes “the unlawful touching or application of force to the person of a househ old member,” those proscriptions are merely “alternative methods of committing one o ffense” and do not implicate modified categorical analysis. Mathis , 136 S. Ct. at 2256 (brackets and internal quotation marks omitted). Subsection (C), on the other hand, “define[s] multiple crimes,” id. at 2249. Indeed, New Mexico’s uniform jury instru ctions for aggravated battery against a household member indicate that there are two alternate elements in subsection (C), depending on whether the defendant “used a . . . deadly weapon,” NMRA, Crim. UJI 14- 392, or either “caused great bodily harm” or “acted in a way that would likely result in8 death or great bodily harm,” id. 14-393. See Mathis , 136 S. Ct. at 2248 (explaining that elements “are what the jury must find beyond a reasonable doubt to convict the defendant” or “what the defendant necessa rily admits when he pleads guilty”). Given that subsection (C) is thus divisible, we ordinar ily would apply the modified categorical approach and look to the fact s of Pacheco’s offense to determine which element he was convicted under and whethe r the resulting crime satisfies the ACCA’s elements clause. But as mentioned above, the only source for those facts is Pacheco’s PSR. And despite the PSR’s characterizatio n of the offense as “Aggravated Battery Against a Household Member (D eadly Weapon),” R., Vol. III at 13, we cannot tell what court documents the probation officer used to determine that Pacheco’s conviction was for the deadly-weapon version of aggravated battery, rather than the great-bodilyharm/death version. “We must therefore turn to the plain language of the . . . statute itself to determine if, standing alone, it woul d support the [ACCA] enhancement.” United States v. Perez-Vargas , 414 F.3d 1282, 1285 (10th Cir. 2005) (declining to conduct a modified categorical analysis where “the PSR [wa]s the only source of information about the crime” and the probation officer had deri ved that information from unspecified “court documents” (internal quot ation marks omitted)), abrogated on other grounds by United
States v. Ontiveros , 875 F.3d 533, 536 (10th Cir. 2017); accord United States v. Hockenberry , 730 F.3d 645, 666-67 (6th Cir. 2013 ) (noting the distinction between “rely[ing] on unchallenged PS R findings to establish the existence of prior convictions”9 and using PSR findings “t o establish the specific nature of a conviction” (second emphasis added)). 5 We begin with “the least of the ac ts criminalized by” subsection (C). United
States v. Hammons , 862 F.3d 1052, 1054 (10th Ci r. 2017). Pacheco argues that committing aggravated battery against a household member “in any manner whereby great bodily harm or death can be inflic ted,” N.M. Stat. Ann. § 30-3-16(C), does not require violent force because it can be “satis fied with proof of me re touching, however slight,” Aplt. Opening Br. at 4. We disa gree with Pacheco’s characterization of the statute. Aggravated battery against a hous ehold member requires that the touching be done with an “intent to injure,” N.M. Stat. Ann. § 30-3-16(A), and in “any manner whereby great bodily harm or death can be inflicted,” id. § 30-3-16(C). It is beyond cavil that a person cannot touch someone with an in tent to injure and in a manner that can inflict great bodily harm or death without applying “force capable of causing physical pain or injury,” Curtis Johnson, 559 U.S. at 140.

5 This court recently determined that a defendant’s prior conviction satisfied the ACCA’s enumerated-offenses clause by relyi ng on the probation offi cer’s consideration of “the underlying charging documents and/or jury instructions . . . without any objection from [the defendant].” See United States v. Snyder , 871 F.3d 1122, 1130 (10th Cir. 2017), petition for cert. filed , (U.S. Dec. 19, 2017) (No. 17 -7157). In contrast, as we have explained, Pacheco’s PSR was based on a review of unspecified court documents. Thus, Snyder does not mandate our acceptance of th e PSR’s statement that Pacheco was convicted of deadly-weap on aggravated battery. Moreov er, we are required to resolve any conflict between Snyder ’s reliance on a PSR and Perez-Vargas ’s rejection of the same in favor of Perez-Vargas

. See Haynes v. Williams , 88 F.3d 898, 900 n.4 (10th Cir. 1996) (“[W]hen faced w ith an intra-circuit conflict, a pa nel should follow earlier, settled precedent over a subsequent deviation therefro m.”). Finally, we note that the government urges an examination of each of “the altern atives under Subsection (C)” to determine whether Pacheco’s aggravated-b attery conviction satisfies th e ACCA’s elements clause. Aplee. Br. at 17.10 Next, Pacheco asserts that th e degree of force required by Curtis Johnson cannot be measured in terms of the resulting harm. He reasons that “[i]njury is not a necessary element” of the crime. Ap lt. Opening Br. at 30. But the New Mexico uniform jury instruction on aggravated battery against a household member (without a deadly weapon) expressly designates as an “element” whether “[t]he defendant . . . acted in a way that would likely result in death or great bodily harm.” NMRA, Crim. UJI 14-393. Further, Curtis Johnson defines the requisite quantum of fo rce—“violent force”—in terms of the potential resulting harm—“physical pain or injury.” 559 U.S. at 140 (emphasis omitted). And in Ontiveros , this court indicated that the minimum force required to satisfy Curtis Johnson should be based on “the effect of th e force” and not “the mechanism by which the force is imparted.” 875 F.3d at 536 (internal qu otation marks omitted) (citing United States v. Castleman , 134 S. Ct. 1405 (2014)). We therefore conclude that the least of the acts criminalized by N.M. Stat. Ann. § 30-3-16(C), “commit[ting] aggravated batter y against a household member . . . in any manner whereby great bodily ha rm or death can be inflic ted,” satisfies the ACCA’s elements clause. As for § 30-3-16(C)’s more stringent alte rnatives, they also qualify. If a person “commits aggravated battery against a hous ehold member by inflicting great bodily harm,” N.M. Stat. Ann. § 30- 3-16(C), that actual and “inten tional causation of serious bodily harm[ ] easily meet[s] the standard fo r ‘violent force.’” Ontiveros , 875 F.3d at 538 (emphasis omitted); accord United States v. Vail-Bailon , 868 F.3d 1293, 1303 (11th Cir. 2017) (“conclud[ing] that intentiona l force—even of the touching variety—that11 in fact causes great bodily harm . . . nece ssarily constitutes force that is capable of causing pain or injury” and thereby satisfies Curtis Johnson ’s requirement of “violent force” (emphasis and internal quotation marks omitted)). Finally, if a person “commits aggravated battery against a household member by . . . doing so with a deadly weapon,” N.M. Stat. Ann. § 30-3-16(C), “the use of a dangerous weapon during an assa ult or battery always constitutes a sufficient threat of force to satisfy the elements clause,” United States v. Taylor , 843 F.3d 1215, 1224 (10th Cir. 2016) (internal quotation marks omitted); see also Maldonado-Palma , 839 F.3d at 1250 (noting that under New Mexico law, a deadly weapon is any firearm or weapon capable of causing death, great bod ily harm, or dangerous wounds, and that “[e]mploying [such] a weapon . . . necessa rily threatens” violent force under Curtis Johnson ); State v. Neatherlin , 154 P.3d 703, 708 (N.M. Ct. App. 2007) (observing that a conviction for aggravated batte ry with a deadly weapon re quires a “showing that an object was used as a deadly weapon” (emphasis added)). Given that the entirety of § 30-3-16(C) sa tisfies the ACCA’s elements clause, we conclude that the Supreme Court’s invalidati on of the residual clause had no bearing on Pacheco’s sentence. Thus, as Pacheco had three valid predicate convictions under the ACCA, the district court did not err in denying his motion for § 2255 relief.12 C ONCLUSION The judgment of the district court is affirmed. Entered for the Court
Bobby R. Baldock Circuit Judge