FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
COLORADO (D.C. No. 1:04-CR-00158-CMA, 1:16-CV-01144-CMA)
Lee, Assistant Federal Public Defender (Virginia L. Grady,
Federal Public Defender, with him on the briefs) Office of
the Federal Public Defender, Denver, Colorado, for Appellant.
Bishop Grewell, Assistant U.S. Attorney (Bob Troyer, Acting
U.S. Attorney, with him on the brief) Office of the U.S.
Attorney for the District of Colorado, Denver, Colorado, for
TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.
TYMKOVICH, Chief Judge.
issue in this appeal questions what should be the obvious:
That statutory robbery is a "violent felony" under
the Armed Career Criminal Act (ACCA). But in the last twelve
months, eleven circuit-level decisions have reached varying
results on this very narrow question-in examining various
state statutes, five courts have found no violent felony and
six have found a violent felony. So the obvious may not be so
plain. Upon independent examination of the Colorado robbery
statute here, however, we believe Colorado robbery qualifies
as a violent felony because it has as an element the use or
threatened use of "physical force" against another
person that is capable of causing physical pain or injury.
ACCA requires a fifteen-year mandatory minimum sentence when
the defendant has three or more qualifying "violent
felonies." 18 U.S.C. § 924(e)(1). The ACCA's
scheme provides three ways the government can prove a prior
conviction qualifies: the elements clause, §
924(e)(2)(B)(i); the enumerated-offenses clause, §
924(e)(2)(B)(ii); and the residual clause, §
924(e)(2)(B)(ii). In June 2015, however, the Supreme Court
held the residual clause to be unconstitutionally vague,
Johnson v. United States (Johnson II), 135 S.Ct.
2551, 2563 (2015), leaving only the elements and the
enumerated-offenses clauses. Because statutory robbery is not
one of the enumerated offenses in § 924(e)(2)(B)(ii),
this appeal involves the elements clause.
the Supreme Court held its pronouncement in Johnson
II must be applied retroactively to cases on collateral
review, Welch v. United States, 136 S.Ct. 1257
(2016), Michael Harris moved to vacate his sentence under 28
U.S.C. § 2255. He argued because his 1979 Colorado
robbery conviction no longer qualified under the residual
clause, he did not have the requisite number of qualifying
violent felony convictions. The government conceded that the
applicability of the § 924(e)(1) enhancement turned on
whether Harris's Colorado robbery conviction satisfied
the elements clause.
expedited decision, the district court denied Harris §
2255 relief, finding Colorado's robbery statute satisfied
the elements clause because it has as an element the use or
threatened use of "physical force" against another
person. We agree. Exercising jurisdiction under 28 U.S.C.
§§ 1291, 2255(d), we affirm.
2004, Michael Harris pleaded guilty to possessing a firearm
as a convicted felon in violation of 18 U.S.C. §
922(g)(1). The maximum sentence for a felon-in-possession
conviction is typically ten years. § 924(a)(2). But
because the sentencing court found Harris had three
qualifying "violent felonies" or "serious drug
offenses, " as defined by the ACCA, the court applied
the § 924(e)(1) enhancement and sentenced Harris to the
fifteen-year mandatory minimum. The sentencing court relied
on the following convictions: (1) robbery (Colorado, 1979);
(2) second-degree burglary (Colorado, 1983); (3) distribution
of a controlled substance (Colorado, 1998); and (4)
distribution of a controlled substance (Colorado, 1998). This
court affirmed Harris's fifteen-year sentence on direct
appeal. United States v. Harris, 447 F.3d 1300 (10th
forward eleven years from the date of conviction. In June
2015, the Supreme Court in Johnson II struck the
residual clause in § 924(e)(2)(B)(ii) on vagueness
grounds. 135 S.Ct. at 2563. Because Johnson II
eliminated the broader of the clauses defining violent felony
in § 924(e)(2)(B)-i.e., the residual clause-the
result has been that prior residual-clause convictions must
now stand or fall based on an analysis under the elements
clause. And that is exactly what is at issue in this appeal.
response to Johnson II and Welch Harris
moved to vacate his sentence under 28 U.S.C. § 2255. He
argued that without the residual clause, he no longer had
three qualifying violent felony convictions. The government
conceded Harris's second-degree burglary conviction no
longer qualified as a violent felony, but maintained his
robbery conviction remained a violent felony under the
elements clause in § 924(e)(2)(B)(i). Thus, the parties
agreed that whether Harris had a third qualifying conviction
was based on whether Colorado's robbery statute satisfies
the elements clause, meaning whether it has as an element the
use or threatened use of physical force against another
person. The district court sided with the government and
found that "robbery in Colorado-as that crime has been
interpreted by Colorado courts-is a 'violent felony'
under the ACCA because it has as an element the use,
attempted use, or threatened [use] of physical force against
the person of another." But other district court judges
have found the opposite, see United States v. Crump,
No. 15-CR-123 (D. Colo. Dec. 2, 2015) (oral ruling);
United States v. Estes, No. 05-CR-187 (D. Colo.
Sept. 15, 2016). We now resolve the conflict.
motion to vacate a sentence under 28 U.S.C. § 2255
"is generally the exclusive remedy for a federal
prisoner seeking to 'attack the legality of
detention.'" Brace v. United States, 634
F.3d 1167, 1169 (10th Cir. 2011). "[W]e review the
district court's legal rulings on a § 2255 motion de
novo and its findings of fact for clear error."
United States v. Pearce, 146 F.3d 771, 774 (10th
Cir. 1998) (citing United States v. Cox, 83 F.3d
336, 338 (10th Cir. 1996)).
the ACCA, a person who violates 18 U.S.C. § 922(g)(1) is
subject to an enhanced sentence if he has three or more prior
convictions for a "violent felony." §
924(e)(1). A violent felony is defined as "any crime
punishable by imprisonment for a term exceeding one
 Elements Clause: "has as an element the use,
attempted use, or threatened use of physical force against
the person of another, " § 924(e)(2)(B)(i);
 Enumerated-Offenses Clause: is a categorical match to the
generic offenses of "burglary, arson, or extortion,
" § 924(e)(2)(B)(ii); or
 Residual Clause: "otherwise involves conduct that
presents a serious potential risk of physical injury to
another, " § 924(e)(2)(B)(ii).
Johnson II, the Supreme Court struck the residual
clause as unconstitutionally vague. 135 S.Ct. at 2563.
Writing for the Court, Justice Scalia explained, the Court
had decided five residual-clause cases in eight years with
varying results. Id. at 2556 (collecting cases).
"We are convinced that the indeterminacy of the
wide-ranging inquiry required by the residual clause both
denies fair notice to defendants and invites arbitrary
enforcement by judges." Id. at 2557. As a
result, if a prior conviction is not one of the enumerated
offenses in § 924(e)(2)(B)(ii), the focus turns to the
elements clause in § 924(e)(2)(B)(i).
determine if a prior conviction qualifies as a violent felony
under the ACCA, we apply the categorical approach, focusing
on the elements of the crime of conviction, not the
underlying facts. Descamps v. United States, 133
S.Ct. 2276, 2283 (2013). The question we must answer then is
whether Colorado's robbery statute "has as an
element the use, attempted use, or threatened use of physical
force against the person of another." See
§ 924(e)(2)(B)(i). This inquiry requires application of
both federal law and Colorado state law. Federal law defines
the meaning of the phrase "use, attempted use, or
threatened use of physical force" in §
924(e)(2)(B)(i). Johnson v. United States (Johnson
I), 559 U.S. 133, 138 (2010) ("The meaning of
'physical force' in § 924(e)(2)(B)(i) is a
question of federal law . . . ."); Leocal v.
Ashcroft, 543 U.S. 1, 9 (2004) (applying federal law to
define "use"). And state law defines the
substantive elements of ...