PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ARCHIE MANZANARES, Defendant - Appellant. No. 18-2010

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. Nos. 1:16-CV-00599-W J-SMV & 1:12-CR-01563-WJ-1)

________________ _________________ Margaret A. Katze, Assistant Federal Pub lic Defender, Office of the Federal Public Defender for the District of New Mexico, Albuquerque, New Mexico, appearing for Appellant. C. Paige Messec, Assistant United States A ttorney (John C. Anderson, United States Attorney, with her on th e briefs), Office of the United Stat es Attorney for the District of New Mexico, Albuquerque, New Me xico, appearing for Appellee.

________________ _________________ Before BRISCOE , KELLY , and CARSON , Circuit Judges.

________________ _________________ BRISCOE , Circuit Judge.

________________ _________________ Defendant-Appellant Archie Manzanares appeals from the district court’s denial of his 28 U.S.C. § 2255 mo tion challenging his senten ce under the Armed Career Criminal Act (ACCA). Because the district court granted a certificate of appealability FILED United States Court of Appeals Tenth Circuit 

### April 17, 2020 Christopher M. Wolpert Clerk of Court2 (COA) as to one issue, we exercise jurisdic tion under 28 U.S.C. § 2253. We affirm the denial of relief and deny Mr. Manzan ares’s motion to expand the COA. I On April 1, 2013, Mr. Manzanares pleade d guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and to possession of a controlled substance, in viola tion of 21 U.S.C. § 844. ROA, Vol. II at 11. His plea agreement provided for a 15-yearsentence if the district court determined he was an armed career criminal. Id. at 12. On July 2, 2013, afte r concluding that Mr. Manzanares had at least three prior violent felonies and th us qualified as an armed career criminal, the district court imposed the 15-year sentence contemplated by the plea agreement. Id. , Vol. IV at 5. Under the ACCA, an offense qualified as a violent felony by satisfying at least one of three definitions, which have come to be known as the Elements Clause, the Enumerated Clause, and the Residual Clause. See 18 U.S.C. § 924(e)(2)(B); United States v. Garcia , 877 F.3d 944, 946 (10th Cir. 2017), cert. denied , 139 S. Ct. 1257 (2019). After Mr. Manzanares’s conviction was final, the S upreme Court invalidated the Residual Clause as bei ng unconstitutionally vague, see Johnson v. United States , 135 S. Ct. 2551, 2557, 2563 (2015) ( Johnson II ), and then made Johnson II applicable to cases on collateral review, see Welch v. United States , 136 S. Ct. 1257, 1268 (2016). In his timely Johnson II -based § 2255 motion, Mr. Ma nzanares asserted that without the Residual Clause , his underlying New Mexi co convictions (armed robbery, aggravated assault with a deadly weapon, and aggravated battery) no longer3 qualified as violent felonies. The district court denied th e motion, concluding that all three underlying convictions satisfy the Elemen ts Clause. ROA, Vol. I at 184. It then granted a COA regarding the armed ro bbery conviction but denied a COA as to the other two convictions. 1 Id. at 186–87. Mr. Manzanares appeals the classification of the armed robbery conviction as a violent fe lony, and he seeks to expand the COA to allow him to appeal the decision regarding th e aggravated assault with a deadly weapon and aggravated battery convictions. II The district court granted a COA on th e issue of whether armed robbery in violation of N.M. Stat. Ann. § 30-16-2 satisfies the Elemen ts Clause. We review the district court’s legal rulings on a § 2255 motion de novo a nd its findings of fact for clear error. Garcia , 877 F.3d at 947–48. Whether a prior conviction satisfies the ACCA’s violent felony definition is a legal question we re view de novo. Id. at 948. The government bears the burden of provi ng a prior conviction qualifies under the ACCA. Id.

1 The district court did not require Mr. Manzanares to show that the Residual Clause played a role in his sentencing. See United States v. Snyder , 871 F.3d 1122, 1130 (10th Cir. 2017) (affirming denial of relief where the defendant was sentenced under the Enumerated Clause, rather than the Residual Clause). We need not determine what effect the Residual Clause had at sentencing, ho wever, because any error in applying the Residual Clause woul d be harmless, as the government has shown that Mr. Manzanares has three convi ctions that qualify as violent felonies under the Elements Clause. See United States v. Driscoll , 892 F.3d 1127, 1135–36 (10th Cir. 2018) (stating a Johnson II error would be harmless if the defendant has three valid predicate convictions to support an ACCA sentence).4 To determine this issue, we apply the “categorical approach,” focusing on the elements of the crime of convic tion, not the underlying facts. Id. The Elements Clause provides that a conviction is a “violent felony” if it “has as an element the use, attempted use, or threatened use of physical force agains t the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). “[T] he phrase ‘physical force’ means violentforce— that is, force capable of causing physical pain or in jury to another person.” Johnson v. United States , 559 U.S. 133, 140 (2010) ( Johnson I ) (emphasis in original). We must first identify the minimum “forc e” required by state law for the crime of conviction, and second determine if that force categorically f its the definition of physical force. United States v. Ontiveros , 875 F.3d 533, 535–36 (10th Cir. 2017). “When construing the minimum culpab le conduct required for a co nviction, such conduct only includes that in which there is a realistic probability, not a th eoretical possibility, the state statute would apply.” Id. at 536 (internal quotation marks omitted). N.M. Stat. Ann. § 30-16- 2 provides as follows: Robbery consists of the theft of a nything of value from the person of another or from the immediate 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 armed with a deadly weapon is, for the first offense, guilty of a second degree felony and, for second and subsequent offenses, is guilty of a first degree felony. After the district court i ssued its decision in this case, this court decided Garcia , where we considered whether a convic tion for third degree robbery under the same New Mexico robbery statute qualified as a violent felony under the Elements5 Clause. We held that third degree robbery “categorically matches the definition of ‘physical force’ the Supreme Court assigned in Johnson I ” as it “has an element the use or threatened use of physical force against another person.” Garcia , 877 F.3d at 956. In concluding that robbery under § 30-16-2 “is a violent felony under the ACCA’s Elements Clause,” id. , we emphasized that th e “mere[] snatching [of property] without any resistan ce from the victim would not ” satisfy “the element of force for robbery” under the New Mexico statute, id. at 954 (citing State v. Curley , 939 P.2d 1103, 1105 (N.M. Ct. App. 1997)) (c oncluding that “when no more force is used than would be necessary to remove property from a pers on who does not resist, then the offense is larceny, and not robbery”). After Garcia was decided, the Supreme Court decided Stokeling v. United States , 139 S. Ct. 544, 550 (2019), which held that the ACCA’s Elements Clause “encompasses robbery offenses that require the criminal to overcome the victim’s resistance.” After issuing Stokeling , the Supreme Court denied certiorari in Garcia

. See Garcia v. United States , 139 S. Ct. 1257 (2019). The government contends Stokeling and Garcia control the outcome in this case. Mr. Manzanares responds that Garcia was wrongly decided and that New Mexico robbery does not have as an elemen t the use of physical force as described by Stokeling . We agree with the government that Stokeling and Garcia are controlling. We acknowledge “[w]e cannot overrule the judgment of another panel of this court. We are bound by the pr ecedent of prior panels absent en banc reconsideration or a superseding contrary decisi on by the Supreme Court.” In re Smith , 10 F.3d 723, 7246 (10th Cir. 1993) (per curiam). Further, “w hen a panel of this Court has rendered a decision interpreting state law, that interpretati on is binding on . . . subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue.” Wankier v. Crown Equip. Corp. , 353 F.3d 862, 866 (10th Cir. 2003). Garcia held that a conviction for simple robbery under § 30-16-2 satisfies the Elements Clause, and, as Mr. Manzanares co ncedes, interpreted the statute to require force that overcomes the victim’s resistance. See Aplt. Br. at 21 (“As the Garcia panel acknowledged, numerous New Mexico cases expr essly state that ‘any quantum of force which overcomes resistance would be suffi cient to support a robbery conviction.’”) (citing Garcia , 877 F.3d at 956). If simple robbery satisfies the Elements Clause, then necessarily armed robbery under the same stat ute would satisfy the Elements Clause. We are bound by Garcia ’s interpretation of the Ne w Mexico robbery statute, and we are unpersuaded by Mr. Manzanares’s arguments urging us to reconsider its holdings. First, Stokeling is not a superseding co ntrary Supreme Court decision. Rather than undermining Garcia ’s result, Stokeling compels it. Stokeling holds that the amount of force sufficient to overcome a victim’s resistance satisfies Johnson I ’s force standard. 139 S. Ct. at 555; see also United States v. Ash , 917 F.3d 1238, 1242 (10th Cir. 2019), cert. filed , No. 18-9639 (June 12, 2019) (noting, after Stokeling , that “[t]he line is drawn, therefore, between robbery that can be acco mplished by the mere snatching of property and robbery that requires overcoming even slight victim resistance”). And, as interpreted in Garcia , New Mexico’s robbery statute distingu ishes “robbery” from “larceny” using a nearly identical standard as Stokeling : “[R]obbery is committed wh en attached property is7 snatched or grabbed by sufficien t force so as to overcome th e resistance of attachment,” Curley , 939 P.2d at 1105, but it is not committe d by a “mere[] snatchin g . . . without any resistance from the victim,” Garcia , 877 F.3d at 954. See also State v. Martinez , 513 P.2d 402, 402 (N.M. Ct. App. 1973) (affirming robbery co nviction where “there was more than a ‘mere snatching’”); State v. Sanchez , 430 P.2d 781, 78 2 (N.M. Ct. App. 1967) (stating that the force used “must overcome the victim ’s resistance” and reversing a robbery conviction because facts were “c omparable to those pickpocket or purse snatching cases”). To be sure, in Ash , we noted that the standard applied in Garcia was “arguably . . . different” than the standard applied by the Supreme Court in Stokeling

. 917 F.3d at 1242 n.5. That is, rather than determining only whet her New Mexico robbery requires force to overcome a victim’s resistance, Garcia drew a different line: whether the New Mexico statute requires “the use of any physical force” to overcome the victim’s resistance or something “more than minimal actual force.” 877 F.3d at 950 (emphasis in original). But Stokeling held that either of these read ings of New Mexico law would satisfy Johnson I , concluding that any “force necessary to over come a victim’s physical resistance is inherently ‘violent ’ in the sense contemplated by Johnson .” 139 S. Ct. at 553. Thus, Stokeling does not undermine Garcia ’s result. 2

2 Mr. Manzanares also relies on our post- Stokeling decision in United States v. Bong , 913 F.3d 1252 (10t h Cir. 2019), but Bong involved a different state statute than the one at issue here. In Bong , we concluded that a convic tion under Kansas’s robbery statute did not qualify as a viol ent felony because Kansas law, in contrast with that of New Mexico, permits a defendant to be conv icted of violating the statute without any8 Moreover, because there has been no inte rvening change in state law, we are bound by Garcia ’s interpretation of New Mexico’s robbery statute. See Wankier , 353 F.3d at 866. Mr. Manzanares argues that a post- Garcia state law decision, State v. Barela , No. A-1-CA-34945, 2018 WL 4959122, at *2 (N.M. Ct. App. Sept. 4, 2018), illustrates that New Mexico robbery can be perp etrated without any use, attempted use, or explicit threats of force. Aplt. Rep. Br. at 5. In Barela , the New Mexico Court of Appeals upheld the defendant’s robbery co nviction because the evidence showed the defendant had uttered threats of violence, wh ich satisfied the state’s obligation to show that the defendant took the purse by threatened force or violence. See id. Because Barela required a threatened use of violence to u phold a robbery convicti on, it likewise does not undermine Garcia

. 3

resistance by or injury to the victim. 913 F. 3d at 1262, 1264. In other words, Kansas robbery falls on the other side of the “snatching” line.

3 Even if we were not bound by Garcia ’s interpretation of New Mexico’s robbery statute, we would conclude that the statute, as applied by New Mexico courts, requires force that ove rcomes the victim’s resistan ce rather than the mere snatching of property. See Curley , 939 P.2d at 1105; Martinez , 513 P.2d at 402; Sanchez , 430 P.2d at 782; see also State v. Bernal , 146 P.3d 289, 296 (N.M. 2006) (noting that robbery is “dis tinct from larceny b ecause it requires, and is designed to punish, the element of force”). Mr. Manzanares, however, points to State v. Clokey , 553 P.2d 1260, 1260 (N.M. 1976), where the New Mexico Supreme Court held that “the evidence supported the verdict of the ju ry that the snatchi ng of the purse was accompanied by force sufficient to convert the crime from larceny to robbery.” But the New Mexico Court of Appeals, in its post- Clokey decisions, has not interpreted Clokey as requiring an amount of force less than necessary to overcome a victim’s resistance. See, e.g. , Curley , 939 P.2d at 1105 (noting that “the issue in [ Clokey ] was not whether there was evidence justifying a lesser-included-offe nse instruction [of larceny]”).9 Given Stokeling ’s holding that force which over comes a victim’s resistance is violent force, and Garcia ’s holding that New Mexico’s ro bbery statute requires that level of force, we affirm the district court’s conclusion that Mr. Manzanares’s New Mexico armed robbery conviction satis fies the Elements Clause. III Mr. Manzanares has also moved to expa nd the COA to address his other two underlying prior convictions. A COA requires “a substantial showing of the denial of a constitutional right,” 28 U.S. C. § 2253(c)(2), meaning that Mr. Manzanares “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong,” Slack v. McDaniel , 529 U.S. 473, 484 (2000). A One of Mr. Manzanares’s prior convictions is for aggravated assault with a deadly weapon, in violation of N. M. Stat. Ann. § 30-3-2(A). Under N.M. Stat. Ann. § 30-3-2(A), “[a]ggravated assault consists of . . . unlawfully assaulting or striking at another with a deadly weapon.” This court has twice held that § 30-3-2(A) satisfies the Elements Clause. See United States v. Maldonado-Palma , 839 F.3d 1244, 1250 (10th Cir. 2016) (holding § 30-3 -2(A) is categorically a crime of violence under the Elements Clause of United States Se ntencing Guidelines Manual § 2L1.2); 4 United States

4 Given the “similarity in language be tween the ACCA and [the Sentencing Guidelines]” defining “violent felony” and “crime of violence,” re spectively, we may “look[ ] to precedent under one provision for guidance unde r another in determining whether a conviction qualifie s as a violent felony.” Ramon Silva , 608 F.3d at 671 (quotations omitted).10 v. Ramon Silva , 608 F.3d 663, 674 (10th Cir. 2010) (holding § 30-3-2(A) is categorically a violent felony under the Elements Clause), abrogated on other grounds by Mathis v. United States , 136 S. Ct. 2243 (2016). Mr. Manzanares argues that Maldonado-Palma and Ramon Silva were wrongly decided and that they are undermined by a subsequent New Mexico Court of Appeals decision, State v. Branch , 417 P.3d 1141 (N.M. Ct. App. 2018) ( Branch II ), because Branch II holds that aggravated as sault does not require a sp ecific intent to use a deadly weapon “ag ainst the person of another.” But Branch II ’s holding that aggravated assault is a genera l-intent crime did not alter th e state of the law. Rather,

as Ramon Silva recognized, “aggravated assault does not require proof of a specific intent to assault the victim, or of a specific intent to injure or even frighten the victim[; thus confirming] that aggravated as sault is not a specific intent crime, but rather is a general intent crime.” 608 F.3d at 673 (brackets, citations, and internal quotation marks omitted). The offense is a violent felony because it requires “unlawfully assaulting or striking at a nother,” § 30-3-2(A), employing a deadly
weapon, Maldonado-Palma , 839 F.3d at 1250, with general criminal intent, see Ramon Silva , 608 F.3d at 673, all of which we have held at least threaten the use of physical force against the pe rson of another. Given this court’s binding precedent, no reasonable jurist could debate the district court’s conclu sion that Mr. Manzanares’s New Mexico conviction for aggravated assa ult with a deadly w eapon satisfies the Elements Clause.11 B Mr. Manzanares’s other prior conviction is for aggravated battery, in violation of N.M. Stat. Ann. § 30-3-5(C). N. M. Stat. Ann. § 30-3-5 states: A. Aggravated battery consists of the unlawful touching or application of force to the pers on of another with intent to injure that person or another. B. Whoever commits aggravated battery, inflicting an injury to the person which is not likely to cause death or great bodily harm, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body, is guilty of a misdemeanor. C. Whoever commits aggravated battery inflicting great bodily harm or does so with a deadly weapon or does so in any manner whereby great bod ily harm or death can be inflicted is guilty of a third degree felony. Mr. Manzanares argues that a c onviction under § 30-3-5(C) does not categorically require Johnson I -level force because “New Mexico aggravated battery is focused on the resulting harm to the pe rson[,] not the force behind the unlawful touching.” Aplt. Br. at 57. For this proposition, Mr. Manzanares relies on United States v. Perez-Vargas , 414 F.3d 1282 (10t h Cir. 2005), and United States v. Rodriguez-Enriquez , 518 F.3d 1191 (10th Cir. 2008). Aplt. Br. at 54. However, we expressly overruled Rodriguez-Enriquez and Perez-Vargas in United States v. Ontiveros , 875 F.3d 533, 536 (10th Cir. 2017), ci ting and relying on the Supreme Court’s decision in United States v. Castleman , 572 U.S. 157 (2014). The Supreme Court in Castleman “specifically rejected the contention that ‘one can cause bodily injury without th e use of physical force.’” Ontiveros , 875 F.3d at 53612 (quoting Castleman , 572 U.S. at 170). Thus, in Ontiveros , we concluded that Colorado second-degree assault is a crime of violence, even though the crime’s elements “focus on the result of the conduct (serious bodily inju ry), not the conduct itself.” Id. (holding that “ Perez-Vargas and Rodriguez-Enriquez relied on reasoning that is no longer vi able in light of Castleman ”). Mr. Manzanares contends that Rodriguez-Enriquez and Perez-Vargas “should remain binding precedent,” Aplt. Br. at 57, but we are bound by Ontiveros and the Supreme Court’s ruling in Castleman

. The district court’s conclusion that Mr. Manzanares’s convicti on under § 30-3-5(C) satisfies the Elements Clause is not reasonably debatable. IV We affirm the district court’s denial of Mr. Manzanares’s § 2255 motion, deny his motion to expand the COA, and deny as moot the government’s motion for summary affirmance.