United States v. Rodriguez ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 13, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2149
(D.C. No. 1:16-CR-01982-JAP-1)
JESUS RODRIGUEZ, (D. N.M.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BRISCOE, MATHESON, and EID, Circuit Judges.**
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Jesus Rodriguez pled guilty to being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g). The district court enhanced his sentence to 15 years in prison
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), finding that he had
been convicted of three prior violent felony offenses that qualified him for the
enhancement.
Mr. Rodriquez challenges his sentence on appeal, arguing that two of the prior
offenses, both for violating N.M.S.A. § 30-3-16(C)—“aggravated battery against a
*
This order and judgment is not binding precedent, except under the doctrines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.
**
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
household member inflicting great bodily harm”—are not violent felonies under the
ACCA. We have appellate jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
In United States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017), this court held that a
Colorado statute which required serious bodily injury could not be violated without the
use of physical force and therefore a conviction under the statute qualifies as a crime of
violence under United State Sentencing Guideline § 4B1.2.1 Id. at 538-39. This court
denied a petition for rehearing en banc in this case on January 2, 2018, and the mandate
issued on January 10, 2018.
On appeal, Mr. Rodriguez concedes that, based on Ontiveros, his convictions
under the comparable New Mexico statute qualify as violent felonies under the ACCA
and his sentence must stand. Aplt. Br. at 6-7. He contends Ontiveros was wrongly
decided and raises the issue to preserve it for further review. Id.
“[A]bsent en banc consideration or an intervening Supreme Court decision that
is contrary to or invalidates our previous analysis,” United States v. White, 782 F.3d
1Given the “similarity in language between the ACCA and [the Sentencing
Guidelines]” defining “violent felony” and “crime of violence,” respectively, we may
“look[] to precedent under one provision for guidance under another in determining
whether a conviction qualifies as a violent felony.” United States v. Ramon Silva, 608
F.3d 663, 671 (10th Cir. 2010) (quotations omitted).
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1118, 1126-27 (10th Cir. 2015)(quotations omitted), this court’s decision in
Ontiveros binds this panel. We therefore affirm Mr. Rodriguez’s sentence.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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