United States v. Concho ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 30, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-2015
(D.C. Nos. 1:16-CV-00648-MV-GBW and
SHANNON D. CONCHO, 1:12-CR-02229-MV-1)
(D.N.M.)
Defendant - Appellant.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
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Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
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Shannon Concho seeks a certificate of appealability (“COA”) to appeal the
district court’s denial of his 28 U.S.C. § 2255 petition. We deny a COA and dismiss
the appeal.
I
Concho pled guilty to one count of using, carrying, possessing, and
brandishing a firearm during, in relation to, and in furtherance of a “crime of
violence” in violation of 18 U.S.C. § 924(c). The underlying offense was assault
with a dangerous weapon with intent to do bodily harm under 18 U.S.C. § 113(a)(3).
In a Rule 11(c)(1)(C) plea agreement, the parties agreed to an 84-month sentence,
*
This order is not binding precedent, except under the doctrines of law of the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.
and Concho waived his rights to directly appeal or collaterally attack his sentence
except on the grounds of ineffective assistance of counsel. At sentencing, the district
court imposed the agreed-upon sentence and two years’ supervised release.
On June 23, 2016, Concho filed a § 2255 motion arguing that the residual
clause of § 924(c)(3)(B) is no longer valid in the wake of Johnson v. United States,
135 S. Ct. 2551 (2015). He therefore claims that his underlying offense—assault
with a dangerous weapon—no longer qualifies as a crime of violence. The district
court rejected his motion and denied a COA. Concho timely appealed.
II
A prisoner may not appeal the denial of habeas relief under § 2255 without a
COA. 28 U.S.C. § 2253(c)(1)(B). We will issue a COA “only if the applicant has
made a substantial showing of the denial of a constitutional right.” § 2253(c)(2).
This standard requires Concho to show “that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).
Concho is correct that the residual clause of § 924(c)(3)(B) is
unconstitutionally vague. See United States v. Salas, 889 F.3d 681, 684 (10th Cir.
2018). But Concho’s conviction for assault with a dangerous weapon nevertheless
qualifies as a crime of violence under § 924(c)’s elements clause, which remains
good law. That provision defines as a crime of violence any felony offense that “has
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as an element the use, attempted use, or threatened use of physical force against
another.” § 924(c)(3)(A).
“To determine whether a prior conviction qualifies as a crime of violence, we
apply the categorical approach if the criminal statute under which the defendant was
charged contains only one set of elements.” United States v. Ontiveros, 875 F.3d
533, 535 (10th Cir. 2017). As we have noted, “[t]he elements differentiating assault
with a dangerous weapon from simple assault are the use of a deadly weapon and the
intent to commit bodily harm.” United States v. Bruce, 458 F.3d 1157, 1164 n.4
(10th Cir. 2006) (quotation omitted). And as the Supreme Court has explained,
“physical force is simply force exerted by and through concrete bodies, as opposed to
intellectual force or emotional force.” United States v. Castleman, 134 S. Ct. 1405,
1414 (2014) (quotations omitted). We therefore reject Concho’s argument that
assault with a dangerous weapon cannot qualify as a crime of violence under the
elements clause because it can be committed without direct physical contact. See
Brundage v. United States, 365 F.2d 616, 619 (10th Cir. 1966) (noting that assault
with a dangerous weapon must be “committed knowingly, that is with knowledge as
to what the defendant was doing and with the desire or wish to bring about a serious
bodily injury to the person of another”); see also Ontiveros, 875 F.3d at 538
(rejecting a similar argument in light of Castleman).
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III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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