CASE NO. 16-1237

IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL HARRIS, Defendant- Appellant.

) ) ) ) ) ) ) )

On Appeal from the United States District Court

for the District of Colorado The Honorable Christine M. Arguello, District Judge

D.C. No. 04-CR-158

APPELLANT’S OPENING BRIEF

Respectfully submitted, VIRGINIA L. GRADY Federal Public Defender JOSH LEE Assistant Federal Public Defender 633 17th Street, Suite 1000 Denver, Colorado 80202 (303) 294-7002 josh.lee@fd.org

Oral argument was requested and is scheduled for September 20, 2016

July 1, 2016

ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................................................................iii

PRIOR RELATED APPEALS: ............................................................................... viii

STATEMENT OF JURISDICTION ......................................................................... 1

ISSUE ......................................................................................................................... 1

STATEMENT OF CASE AND FACTS .................................................................. 1

SUMMARY OF ARGUMENT ................................................................................. 6

ARGUMENT ............................................................................................................. 8

I. The District Court Erred by Holding That the Colorado Courts’ Description of Robbery as Forcible and Violent for State-Law Purposes Controls Whether it is a Violent Felony for Purposes of Federal Law. .................................................................. 9

II. “Physical Force” in the ACCA’s Elements Clause Means Powerful Force. .................................................................................... 13

III. Colorado Robbery Is Not a “Violent Felony” Under the ACCA Because It Can Be Committed Through De Minimis Physical Contact. ................................................................................. 17

IV. This Court Should Order Mr. Harris’s Immediate Release. ................ 24

CONCLUSION ....................................................................................................... 25

STATEMENT REGARDING ORAL ARGUMENT ............................................. 26

CERTIFICATE OF COMPLIANCE ....................................................................... 27

CERTIFICATE OF DIGITAL SUBMISSION ....................................................... 27

CERTIFICATE OF SERVICE ................................................................................. 28

ATTACHMENTS: ORIGINAL CRIMINAL JUDGMENT (2004) ........................................................ A

ORDER DENYING § 2255 MOTION .................................................................... B

JUDGMENT ON § 2255 MOTION (2016) ............................................................ C

iii

TABLE OF AUTHORITIES

Cases

Beckles v. United States, No. 15-8544 (U.S. June 27, 2016) ........................................................................ 4

Brown v. Poole, 337 F.3d 1155 (9th Cir. 2003) ............................................................................. 25

Crump v. United States, 15-1497 ................................................................................................................... 1

Hilton v. Braunskill, 481 U.S. 770 (1987) ............................................................................................. 25

I.N.S. v. St. Cyr, 533 U.S. 289 (2001) ............................................................................................. 14

Jewell v. United States, 749 F.3d 1295 (10th Cir. 2014) ........................................................................... 23

Johnson v. United States, 135 S. Ct. 2551 (2015) (“Johnson II”) ........................................................... passim

Johnson v. United States, 559 U.S. 133 (2010) (“Johnson I”) ................................................................. passim

Karimi v. Holder, 715 F.3d 561 (4th Cir. 2013) ............................................................................... 15

Kelley v. Roberts, 998 F.2d 802 (10th Cir. 1993) ............................................................................. 25

Leyba v. People, 481 P.2d 417 (Colo. 1971) ............................................................................. 19, 22

Mahoney v. People, 48 How. Pr. 185 (N.Y. Sup. Ct. 1874) ........................................................... 20, 22

Mathis v. United States, ___ S. Ct. ____, 2016 WL 3434400 (June 23, 2016) ................................... passim

iv

Mickens-Thomas v. Vaughn, 407 F. App’x 597 (3d Cir. 2011) .......................................................................... 25

Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) ............................................................................. 10, 16, 17

People v. Bartowsheski, 661 P.2d 235 (Colo. 1983) ......................................................................... 5, 11, 19

People v. Borghesi, 66 P.3d 93 (Colo. 2003) ....................................................................... 5, 11, 12, 19

People v. Davis, 935 P.2d 79 (Colo. App. 1996) ...................................................................... 18, 21

People v. Dreas, 200 Cal. Rptr. 586 (Cal. App. 1984) ........................................................ 20, 21, 22

People v. Fox, 928 P.2d 820 (Colo. App. 1996) .................................................................... 18, 21

People v. Gallegos, 193 Colo. 108 (1977) ............................................................................................. 6

People v. Jenkins, 198 Colo. 347 (1979) ....................................................................................... 6, 12

People v. Jenkins, 599 P.2d 912 (Colo. 1979) ................................................................................... 18

People v. Thomas, 181 Colo. 317 (1973) ....................................................................................... 6, 12

Seymour v. State, 15 Ind. 288 (1860) ............................................................................................... 20

Taylor v. United States, 495 U.S. 575 (1990) ....................................................................................... 10, 11

Torres v. Lynch, 136 S. Ct. 1619 (2016) ......................................................................................... 14

v

United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010) ......................................................................... 15, 22

United States v. Dominguez-Maroyoqui, 748 F.3d 918 (9th Cir. 2014) ......................................................................... 15, 21

United States v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013) ....................................................................... 15, 21

United States v. Forrest, 611 F.3d 908 (8th Cir. 2010) ......................................................................... 11, 12

United States v. Futrell, 83 F.3d 434 (10th Cir. 1996) ......................................................................... 15, 16

United States v. Gardner, ___ F.3d ____, 2016 WL 2893881, (4th Cir. May 18, 2016) ................................................................................ passim

United States v. Hays, 526 F.3d 674 (10th Cir. 2008) ............................................................................. 16

United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015) ........................................................................... 10

United States v. Najera-Mendoza, 683 F.3d 627 (5th Cir. 2012) ................................................................... 10, 17, 19

United States v. Parnell, 818 F.3d 974 (9th Cir. 2016) ................................................................... 15, 21, 22

United States v. Ramon-Silva, 608 F.3d 663 (10th Cir. 2010) ............................................................................. 23

United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008) ........................................................................... 10

United States v. Scoville, 561 F.3d 1174 (10th Cir. 2009) ............................................................................. 8

United States v. Shell, 789 F.3d 335 (4th Cir. 2015) ................................................................... 15, 21, 22

vi

United States v. Shipp, 589 F.3d 1084 (10th Cir. 2009) ..................................................................... 10, 24

United States v. Smith, 652 F.3d 1244 (10th Cir. 2011) ........................................................................... 10

United States v. Smith, 815 F.3d 671 (10th Cir. 2016) ............................................................................. 22

United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012) ............................................................................... 14

Welch v. United States, 136 S. Ct. 1257 (2016) ..................................................................................... 4, 24

Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015) ................................................................................ 14

Williams v. Commonwealth, 50 S.W. 240 (Ky. 1899) ................................................................................. 19, 22

Yates v. United States, 135 S. Ct. 1074 (2015) ........................................................................................... 9

Statutes and Rules

18 U.S.C. § 2113(d) ................................................................................................. 23

18 U.S.C. § 3559 ........................................................................................................ 2

18 U.S.C. § 3583 ........................................................................................................ 2

18 U.S.C. § 922(g) ..................................................................................................... 2

18 U.S.C. § 924(a)(2) ................................................................................................ 2

18 U.S.C. § 924(e) ................................................................................................. 1, 2

18 U.S.C. § 924(e)(1) .............................................................................................. 24

vii

18 U.S.C. § 924(e)(2)(B) ........................................................................................... 3

18 U.S.C. § 924(e)(2)(B)(i) ..................................................................... 8, 11, 15, 24

18 U.S.C. § 924(e)(2)(B)(ii) .............................................................................. 11, 24

18 U.S.C. § 924(e)(3)(B)(ii) .................................................................................... 14

21 Okla. Stat. Ann. §§ 787, 801 .............................................................................. 23

28 U.S.C. § 1291 ........................................................................................................ 1

28 U.S.C. § 2255 ........................................................................................................ 4

28 U.S.C. § 2255(b) ................................................................................................... 1

28 U.S.C. § 2255(d) ................................................................................................... 1

Colo. Rev. Stat. § 18-1.3-406(2)(a) ........................................................................... 9

Colo. Rev. Stat. § 18-4-301 ...................................................................................... 18

Colo. Rev. Stat. § 18-4-301(1) ................................................................................... 5

Colo. Rev. Stat. § 18-4-302 ...................................................................................... 23

Kan. Stat. Ann. § 21-5420 ....................................................................................... 23

N. M. Stat. Ann. § 30-16-2 ...................................................................................... 23

U.S.S.G. § 4B1.2 .................................................................................................. 1, 16

U.S.S.G. § 4B1.2(a) .................................................................................................... 4

Utah Code Ann. § 76-6-302 .................................................................................... 23

Wyo. Stat. Ann. § 6-2-401 ....................................................................................... 23

viii

Other Authorities

Wayne R. LaFave, Substantive Criminal Law § (2d ed. & 2015 Update) ............................... 13, 20, 21

Wharton’s Criminal Law § (15th ed. & 2015 Update) ....................................... 12, 20

C. Heather Ashton et al., Benzodiazepine Overdose: Are Specific Agonists Useful?, 290 Br. Med. J. 805, 805 (1985) ........................................................................... 21

PRIOR RELATED APPEALS:

United States v. Harris, 447 F.3d 1300 (10th Cir. 2006) (affirming Mr. Harris’s sen-

tence on direct appeal).

1

STATEMENT OF JURISDICTION

The district court had jurisdiction over this post-conviction action under 28

U.S.C. § 2255(b), and it entered judgment on June 8, 2016. R. vol. 3 at 5. Appellant

timely noticed appeal on June 8, 2016. Id. at 57. The district court granted a certifi-

cate of appealability on June 10, 2016. This Court’s appellate jurisdiction arises from

28 U.S.C. §§ 1291, 2255(d).

ISSUE

Does a conviction for Colorado robbery “ha[ve] as an element the use, at-

tempted use, or threatened use of physical force against the person of another” under

the Armed Career Criminal Act, 18 U.S.C. § 924(e)?1

STATEMENT OF CASE AND FACTS

This case requires the Court to determine whether Colorado robbery remains

a “violent felony” under the Armed Career Criminal Act after Johnson v. United

States, 135 S. Ct. 2551 (2015) (“Johnson II”). Specifically, the Court must decide

1 Crump v. United States, 15-1497, scheduled to be heard at argument on the same day and by the same panel as this case, presents the issue here, as well as an additional issue: whether Colorado robbery qualifies as a “crime of violence” under the Federal Sentencing Guidelines because Application Note 1 to U.S.S.G. § 4B1.2 purports to deem generic robbery a crime of violence. That additional issue is not presented here because there is no analogous provision in the Armed Career Criminal Act.

2

whether the minimum conduct criminalized by Colorado’s robbery statute amounts

to powerful physical force under Johnson v. United States, 559 U.S. 133, 137–42

(2010) (“Johnson I”). If not, the defendant-appellant is entitled to immediate release.

On July 8, 2004, Michael Harris pleaded guilty to one count of felon in pos-

session of a firearm, in violation of 18 U.S.C. § 922(g). R. vol. 2 at 25. Ordinarily,

the maximum sentence for a conviction of felon in possession of a firearm is 10 years’

imprisonment, 18 U.S.C. § 924(a)(2), and three years of supervised release, 18

U.S.C. §§ 3559, 3583. In this case, however, the sentencing court found that Mr.

Harris qualified for an increased sentence under the Armed Career Criminal Act

(ACCA). R. vol. 2 at 31.

Under the ACCA, if a defendant convicted of felon in possession of a firearm

“has three previous convictions . . . for a violent felony or a serious drug offense, or

both,” then the defendant must be “imprisoned not less than fifteen years,” 18 U.S.C.

§ 924(e), and may be placed on supervised release for up to five years, 18 U.S.C.

§§ 3559, 3583. The district court found that Mr. Harris had the following convic-

tions for a violent felony or a serious drug offense: Robbery (Colorado, 1979), Sec-

ond-Degree Burglary (Colorado, 1983), Distribution of a Controlled Substance (Col-

orado, 1998), and a separate conviction for Distribution of a Controlled Substance

(Colorado, 1998). R. vol. 2 at 31, vol. 4 at 102–03, 111–12. Based on those findings,

3

the district court sentenced Mr. Harris to fifteen years’ imprisonment and five years

of supervised release. R. vol. 2 at 26–27.

More than a decade after Mr. Harris’s sentencing, the United States Supreme

Court decided Johnson II, which ruled a portion of the ACCA unconstitutional. Spe-

cifically, Johnson II held that one clause of the ACCA’s definition of the term “violent

felony”—the so-called residual clause—is unconstitutionally vague. 135 S. Ct. at

2557. Under the ACCA, there are three ways that a prior conviction can qualify as

a violent felony (and thus serve as a predicate for an increased sentence): (1) the

conviction was for an offense that “has as an element the use, attempted use, or

threatened use of physical force against the person of another,” under the “elements

clause;” (2) the conviction was for “burglary, arson, or extortion, [or an offense that]

involves the use of explosives,” under the “enumerated-offenses clause;” or (3) the

offense is for a conviction that “otherwise involves conduct that presents a serious

potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). In Johnson II,

the Court held that this third clause—the residual clause—cannot be applied con-

sistent with due process. Subsequently, the Supreme Court held that Johnson II must

4

be applied retroactively to cases on collateral review. See Welch v. United States, 136

S. Ct. 1257 (2016).2

On May 17, 2016, Mr. Harris filed a motion to vacate sentence pursuant to

28 U.S.C. § 2255, claiming that his ACCA sentence is invalid under Johnson II. R.

vol. 3 at 10–17. Mr. Harris argued that his ACCA sentence violates Johnson II be-

cause neither his 1979 robbery conviction nor his 1983 burglary conviction qualified

as a “violent felony” under either the elements clause or the enumerated-offenses

clause. Thus, he contended, his ACCA sentence is not supported by the requisite

three previous convictions for a violent felony or a serious drug offense. Mr. Harris

moved to expedite the case and claimed a right to immediate release on the ground

that he had already served more than ten years imprisonment—the maximum term

absent application of the ACCA. R. vol. 3 at 7, 11.

2 There is disagreement among Courts of Appeals regarding whether Johnson II ap-plies to retroactively where the challenge is not to a sentence increased by the ACCA but to a sentence increased under a definitionally similar provision of the Federal Sentencing Guidelines, U.S.S.G. § 4B1.2(a). The Supreme Court recently granted certiorari to resolve that disagreement. See Beckles v. United States, No. 15-8544 (U.S. June 27, 2016) (order granting certiorari). The Beckles decision will have no impact on the case at bar, which is an ACCA case squarely controlled by Johnson II and Welch.

5

The government promptly responded on May 24, 2016. R. vol. 3 at 19–29. It

confessed that Mr. Harris’s conviction for second-degree burglary could not qualify

as a violent felony under the elements clause or the enumerated-offenses clause and,

thus, could not be used to sustain Mr. Harris’s ACCA sentence. Id. at 22–24; accord

Mathis v. United States, ___ S. Ct. ____, 2016 WL 3434400 (June 23, 2016). The

government did contend, however, that Colorado robbery has the use or threatened

use of physical force as an element and therefore qualifies as a violent felony under

the ACCA’s elements clause. Thus, it argued, Mr. Harris was entitled to no relief

because he still had three qualifying ACCA predicate convictions (the robbery and

the two drug convictions). Because it opposed relief on the merits, the government

did not address Mr. Harris’s contention that, if his ACCA sentence is invalid, he

should be immediately released.

On June 8, 2016, the district court entered an order denying relief. R. vol. 3

at 50–54. The court accepted the government’s argument that Colorado robbery is

a violent felony under the elements clause, reasoning as follows:

In Colorado, a person commits “robbery” if he or she “knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation.” Colo. Rev. Stat. § 18-4-301(1). The “use of force” is an express element of the crime of robbery in Col-orado. In addition, in People v. Borghesi, 66 P.3d 93, 100 (Colo. 2003), the Colorado Supreme Court stated that “the gravamen of the offense of robbery is the violent nature of the taking.” See also People v. Bartow-sheski, 661 P.2d 235, 244 (Colo. 1983) (“[R]obbery is the application of

6

physical force or intimidation against the victim . . . in the taking of property from the victim’s person or presence.”); People v. Thomas, 181 Colo. 317, 320 (1973) (stating that “force or fear is the main element of [robbery]”). In addition, the Colorado Supreme Court has determined that a robbery carried out by “threats” or “intimidation” was committed with “force” and “violence.” In People v. Jenkins, 198 Colo. 347, 349 (1979), the Colorado Supreme Court specifically rejected the argument that “intimidation” was not necessarily evidence of force or violence and stated that “robbery involving only the use of intimidation is a felony involving the use of force or violence.” In People v. Gallegos, 193 Colo. 108, 109 (1977), the Colorado Supreme Court stated that “attempted robbery by threat is a felony involving the use of force under the stat-ute.” This Court is bound by Colorado courts’ interpretation of Colo-rado law. Johnson v. United States, 559 U.S. 133, 138 (2010).

R. vol. 3 at 86. Mr. Harris sought and was granted a certificate of appealability. On Mr. Har-

ris’s motion, this Court expedited this case (Order, June 10, 2016) and set the matter

for oral argument on September 20, 2016 (Calendar notice, June 21, 2016). For the

reasons that follow, this Court should reverse the district court’s judgment and, upon

issuing its decision, order Mr. Harris’s immediate release.

SUMMARY OF ARGUMENT

After Johnson II, a prior offense is a “violent felony,” and can support an in-

creased sentence under the ACCA, only if it listed in the statute or “has as an ele-

ment the use, attempted use, or threatened use of physical force.” Robbery is not an

7

enumerated offense, and Colorado robbery does not have physical force as an ele-

ment. The district court erroneously held that, because Colorado courts use the

words “physical force” and “violence” to describe Colorado robbery, the offense qual-

ifies as a “violent felony” under federal law. This approach is contrary to the Supreme

Court’s ACCA jurisprudence, which may be summed up as a repeated reiteration of

the principle that federal courts may not equate the abstract concepts embodied in

the ACCA with a state court’s use of similar abstract words to describe an offense.

The proper approach is to consult federal authority to define the ACCA’s

terms, look to state law to identify the minimum conduct criminalized by the statute

of conviction, and assess whether that minimum conduct satisfies the ACCA’s re-

quirements. The Supreme Court has made clear that the phrase “physical force” in

the ACCA signifies powerful physical force of the degree typically involved in mur-

der, forcible rape, or aggravated assault and battery with a deadly weapon. Colorado

robbery can be committed by de minimis contact, such as tugging on a purse or cov-

ering a person’s mouth. De minimis contact does not amount to powerful physical

force.

Mr. Harris’s robbery conviction could qualify as a violent felony only under

the ACCA’s so-called residual clause, but Johnson II held that portion of the statute

unconstitutional. Without the ACCA, the maximum penalty for Mr. Harris’s offense

8

is 10 years’ imprisonment. Mr. Harris has already spent more time than that in prison.

To avoid further violation of Mr. Harris’s due process rights, this Court should not

only reverse the district court’s judgment but also directly order the Bureau of Prisons

to release Mr. Harris without delay.

ARGUMENT

The district court rejected Mr. Harris’s Johnson II claim on the ground that his

robbery conviction qualified as a violent felony under the ACCA’s elements clause,

meaning that the now-invalid residual clause would not be necessary to sustain Mr.

Harris’s ACCA sentence. R. vol. 3 at 86. Under the elements clause, an offense is a

violent felony only if it “has as an element the use, attempted use, or threatened use

of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). As the

district court correctly noted, to determine whether a prior conviction was for a ”vi-

olent felony” under the ACCA, courts must apply a “categorical approach,” looking

only to the legal definition of the offense of conviction and not to the particular facts

underlying the prior conviction. R. vol. 3 at 85 (citing United States v. Scoville, 561

F.3d 1174, 1176 (10th Cir. 2009)). (The so-called modified categorical approach is

inapplicable because Colorado robbery is not a divisible offense. Compare Mathis, ___

S. Ct. ____, 2016 WL 3434400, at *6–*8, with Colo. Jury Instructions–Crim. § 4-

9

3:01.) Although it correctly identified the categorical approach as appropriate, the

district court’s application of that method contradicted Supreme Court precedent.

I. The District Court Erred by Holding That the Colorado Courts’ Description of Robbery as Forcible and Violent for State-Law Purposes Controls Whether it is a Violent Felony for Purposes of Federal Law. The district court reasoned that Colorado robbery has “physical force” as an

element, and thus qualifies as a “violent” felony under the ACCA, because the Col-

orado Supreme Court has described the offense using the words “physical force” and

“violence.” R. vol. 3 at 86. “In law as in life, however, the same words, placed in

different contexts, sometimes mean different things.” Yates v. United States, 135 S.

Ct. 1074, 1082 (2015).

The Supreme Court has repeatedly rejected the notion that federal courts may

equate the abstract concepts embodied in the ACCA with a state court’s use of sim-

ilar abstract words to describe an offense. See, e.g., Mathis, ___ S. Ct. ____, 2016 WL

3434400, at *6 (holding that Iowa state law used the word “burglary” to describe an

offense that did not qualify as “burglary” under the ACCA); id at *12 (admonishing

that Mathis merely reiterates what has, for “more than 25 years,” been “repeatedly

made clear”); Johnson I, 559 U.S. at 137–42 (holding that battery does not involve

“physical force” for ACCA purposes even though it involves “force” for common-law

purposes); compare Colo. Rev. Stat. § 18-1.3-406(2)(a) (deeming escape, statutory

10

rape, and second-degree assault (drugging victim) to be violent crimes under state

law), with United States v. Shipp, 589 F.3d 1084, 1090–91 (10th Cir. 2009) (escape

was not a violent crime under federal law), United States v. Madrid, 805 F.3d 1204,

1208 (10th Cir. 2015) (statutory rape was not a violent crime under federal law), and

United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008) (second-degree

assault (drugging victim) was not a violent crime under federal law). An “offense [is]

not a crime of violence merely because it include[s] as an element the word ‘force.’”

United States v. Najera-Mendoza, 683 F.3d 627, 631 (5th Cir. 2012).

The proper approach is to look to federal law to define the abstract terms used

in the ACCA, e.g., Johnson I, 559 U.S. at 137–42; examine state law to identify—in

concrete terms—“the minimum conduct criminalized by the state statute,” e.g.,

Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013); and assess whether the “min-

imum conduct” identified by state law meets the definition set forth by federal law,

e.g., Taylor v. United States, 495 U.S. 575, 602 (1990). See also United States v. Smith,

652 F.3d 1244, 1247 (10th Cir. 2011) (holding that the word “physical force,” as

used in the ACCA, indicated stronger force than the minimum conduct criminalized

by an Oklahoma statute that had “force or violence” as an element for state-law

purposes).

11

While a federal court must follow state law in identifying the minimum con-

duct proscribed by a state statute, decades of Supreme Court precedent unequivo-

cally forbid deferring to state law on the ultimate question of whether the offense at

issue qualifies as a violent felony under the ACCA. E.g., Taylor, 495 F.3d at 590–91

(explaining that whether a conviction qualifies as an ACCA cannot turn “on

whether the State of [the] prior conviction happened to call [certain] conduct ‘bur-

glary’”). Just as the Supreme Court has insisted that the offenses enumerated in §

924(e)(2)(B)(ii) “must have some uniform definition independent of the labels em-

ployed by the various States”), it has likewise insisted that whether an offense in-

volves “physical force” under § 924(e)(2)(B)(i) must be determined by reference to

uniform federal definition of that concept. Johnson I, 559 U.S. at 137–42.

The government argued below that United States v. Forrest, 611 F.3d 908 (8th

Cir. 2010), supports holding that Colorado robbery is a violent felony. R. vol. 3 at

57. But Forrest committed same the fallacy of equivocation as did the court below:

The question is . . . whether the offense, categorically, “has as an element the use, attempted use, or threatened use of physical force against the person of another” within the meaning of 18 U.S.C. § 924(e)(2)(B)(i). The Colorado Supreme Court has consistently held that “the gravamen of the offense of robbery is the violent nature of the taking.” People v. Borghesi, 66 P.3d 93, 100 (Colo.2003); see People v. Bartow-sheski, 661 P.2d 235, 244 (Colo.1983) (“robbery is the application of physical force or intimidation against the victim ... in the taking of

12

property”); People v. Jenkins, 198 Colo. 347, 599 P.2d 912, 914 (1979) (robbery whether committed by force, threats, or intimidation is a crime involving the use of force or violence); People v. Thomas, 181 Colo. 317, 509 P.2d 592, 594 (1973). We are bound by Colorado’s interpretation of the substantive offense. See Johnson [I], 130 S. Ct. at 1269.

611 F.3d at 911.

Again, that the Colorado Supreme Court describes the offense as “violent,” or

says it involves “physical force,” is no more dispositive than the Iowa Supreme

Court’s description of the offense at issue in Mathis as “burglary.” Without identifying

the minimum conduct criminalized by the statute of conviction, it is impossible to

know whether “violent” or “physical force” mean the same thing in Colorado robbery

jurisprudence as they do in the ACCA.

Because they failed to identify the minimum conduct criminalized by Colo-

rado’s robbery statute, both the Forrest Court and the court below failed to recognize

that “force” and “violence” are terms of art in robbery jurisprudence that encompass

acts that would not qualify as forceful or violent in the generic (or ACCA) sense.

Colorado follows the common law of robbery, People v. Borghesi, 66 P.3d 93, 99 (Colo.

2003) (en banc), and at common law the “force and violence” element of robbery

could be satisfied by “even de minimis contact,” United States v. Gardner, ___ F.3d

____, 2016 WL 2893881, *7 (4th Cir. May 18, 2016); see 4 Wharton’s Criminal Law

§ 460 (15th ed. & 2015 Update) (observing that “[t]he degree of force used is not

13

material” to determining whether there is “violence,” so long as the force overcomes

any resistance offered); 3 Wayne R. LaFave, Substantive Criminal Law § 20.3 (2d ed.

& 2015 Update) (“LaFave”) (explaining that force and violence are present if the

victim is aware of the taking and resists in any way); see also Section III, infra (dis-

cussing specific examples). As explained in the following section, “physical force”

means something distinctly different in the ACCA’s elements clause. Although Col-

orado robbery may be forcible and violent for common-law purposes, it does not have

“physical force” as an element, and is not a “violent felony,” for ACCA purposes.

II. “Physical Force” in the ACCA’s Elements Clause Means Powerful Force. The phrase “physical force” in the elements clause means powerful force. In

Johnson I, the Court explained that the phrase signifies “‘extreme physical force,’”

akin to that needed to commit “‘murder, forcible rape, [or] assault and battery with

a dangerous weapon.’” Johnson I, 559 U.S. at 140 (quoting Black's Law Dictionary

1706 (9th ed. 2009)). In other words, “physical force” in the ACCA means “a sub-

stantial degree of force,” Johnson I, 559 U.S. at 141—“force strong enough to consti-

tute ‘power,’” id. at 141.

The Court in Johnson I also noted that the force described above must be “ca-

pable of causing physical pain or injury.” Id. at 140. Seizing on this single phrase, the

government suggested below that any conduct that could cause any amount of injury

14

is sufficient. R. vol. 3 at 58. As the previous paragraph shows, this takes Johnson I’s

pain-or-injury language out of context and reads it too mechanically. After all, the

elements clause aims at the “the ‘how’” of an offense (“physical force”), not at the

ultimate result of an offense (e.g., injury). Whyte v. Lynch, 807 F.3d 463, 468 (1st Cir.

2015); see United States v. Torres-Miguel, 701 F.3d 165, 169 (4th Cir. 2012) (“Not to

recognize the distinction between a use of force and a result of injury is not to recog-

nize [a] logical fallacy.”) (quotation marks omitted); cf. Torres v. Lynch, 136 S. Ct.

1619, 1629 (2016) (explaining that the elements clause’s narrow focus on the use of

physical force means that it fails to capture “many of the gravest crimes”); Torrez-

Miguel, 701 F.3d at 168–69 (statute criminalizing a “threat[] to commit a crime

which will result in death or great bodily injury” did not involve a threat of force

because “a crime may result in death or serious injury without involving use of phys-

ical force”).

Importantly, the government’s focus on the potential for injury would render

the elements clause indistinguishable from the unconstitutional residual clause,

which was satisfied by “conduct that presents a serious potential risk of physical in-

jury to another.” 18 U.S.C. § 924(e)(3)(B)(ii). The government cannot be permitted

to smuggle this unconstitutional inquiry in through a different clause of the ACCA.

Cf. I.N.S. v. St. Cyr, 533 U.S. 289, 299–300 (2001) (“[I]f an otherwise acceptable

15

construction would raise serious constitutional problems, and where an alternative

interpretation of the statute is fairly possible, we are obligated to construe the statute

to avoid such problems.”) (citations and quotation marks omitted).

Following Johnson I, lower courts have held that conduct such as the following

does not amount to “physical force” under § 924(e)(2)(B)(i): aggressively grabbing a

person, Karimi v. Holder, 715 F.3d 561, 563–64, 569 (4th Cir. 2013), chasing a person

down the street and bumping into him, United States v. Dominguez-Maroyoqui, 748

F.3d 918, 921 (9th Cir. 2014), walking up to a person and jolting her arm and shoul-

der, id., abruptly and forcibly grabbing someone’s jacket, id., spitting in a person’s

face, id., intentionally injuring a person by poisoning her, United States v. Andino-

Ortega, 608 F.3d 305, 310–11 (5th Cir. 2010), nonconsensual sex, United States v.

Shell, 789 F.3d 335, 341 (4th Cir. 2015), kicking officers during a struggle to keep

from being handcuffed, United States v. Flores-Cordero, 723 F.3d 1085, 1087–88 (9th

Cir. 2013), pulling a purse from a victim’s hands, United States v. Parnell, 818 F.3d

974, 979 (9th Cir. 2016), grabbing a victim’s pocketbook from her arm, id., and push-

ing the shoulder of a store clerk, causing her to fall onto shelves, Gardner, ___ F.3d

at ____, 2016 WL 2893881, *7 (4th Cir. 2016).

Below the government cited this Court’s non-precedential disposition in

United States v. Futrell, 83 F.3d 434 (10th Cir. 1996) (unpublished), in support of its

16

argument that Colorado robbery qualifies as a violent felony. R. vol. 3 at 57. But

Futrell was decided before either the Supreme Court (in Johnson I) or this Court (in

United States v. Hays, 526 F.3d 674 (10th Cir. 2008)) had first ruled that the elements

clause cannot be satisfied by mere touching. Moreover, Futrell did not identify the

minimum conduct required to commit Colorado robbery, as required by Moncrieffe,

133 S. Ct. at 1684–85 (2013). See Gardner, ___ F.3d at ____, 2016 WL 2893881, at

*7 (refusing to follow prior precedential opinions “because they pre-date the Supreme

Court's decision in Moncrieffe, and do not evaluate the minimum conduct to which

there is a realistic probability that a state would apply the law.”).

Regardless, Futrell says nothing about the elements clause. Instead, it held:

“[W]e are bound by the commentary to [U.S.S.G.] § 4B1.2 which specifically in-

cludes robbery as a crime of violence.” 83 F.3d 434, at *2. This is immaterial to the

case at bar, as the ACCA does not list robbery as a crime of violence. To be sure,

Futrell also stated that robbery “involve[s] an element of violence,” id. at *1, but

there is no reason to read this language (as the government does) as an indication

that Colorado robbery satisfies the elements clause. In short, this Court must write

on a blank slate to determine whether the minimum conduct criminalized by Colo-

rado’s robbery statute entails powerful physical force under Johnson I.

17

III. Colorado Robbery Is Not a “Violent Felony” Under the ACCA Because It Can Be Committed Through De Minimis Physical Contact.

Before applying the elements clause to Colorado robbery, this Court must

identify “the minimum conduct criminalized by the state statute.” See Moncrieffe, 133

S. Ct. at 1684–85. To do so, the Court should determine, in light of state law, the

smallest amount of force that realistically could trigger Colorado courts to apply the

state’s robbery statute. Id. The Court may not assume that the Colorado appellate

opinions available on Lexis or Westlaw exhaustively catalog the conduct that realis-

tically could trigger application of Colorado’s robbery statute. The test is not whether

Colorado courts have applied the statute to conduct that does not involve powerful

physical force; it is whether there is “a realistic possibility” that the courts “would

apply” the statute to such conduct. Id. (emphasis added); Gardner, ___ F.3d at ____,

2016 WL 2893881, at *7 (holding that Moncrieffe required the court to identify “the

minimum conduct to which there is a realistic possibility” that North Carolina

“would apply” its robbery statute). Thus, if the courts of the state of conviction con-

sult treatises, cases from other jurisdictions, or the common law to define the scope

of the offense, a court applying the elements clause must consult those same sources

to identify the minimum force necessary to commit the offense. See Najera-Mendoza,

683 F.3d at 631–32.

18

Applying these principles to Colorado robbery leaves no doubt that the Colo-

rado courts would apply—and have applied—the state’s robbery statute to takings

committed through de minimis physical contact. The text of Colorado’s robbery stat-

ute provides little insight. It defines robbery as the taking of property “from the per-

son or presence of another by the use of force, threats, or intimidation,” Colo. Rev.

Stat. § 18-4-301, but the Colorado Supreme Court has held that this just codifies the

common law of robbery. E.g., People v. Jenkins, 599 P.2d 912, 913 (Colo. 1979) (en

banc). In accord with Jenkins, the Colorado Court of Appeals followed a long line of

common-law authorities in People v. Davis, 935 P.2d 79, 85 (Colo. App. 1996), to

hold that any minimal force that overcomes any resistance to the taking, however

slight, can sustain a robbery conviction. This “suggests that even de minimis contact

can constitute the ‘violence’ necessary for a common law robbery conviction.” Gard-

ner, ___ F.3d at ____, 2016 WL 2893881, at *7.

The facts of three Colorado cases illustrate the point. In Davis, a “purse

snatching” accomplished through “a very slight tug” on the purse justified a convic-

tion for robbery. 935 P.2d at 85. Similarly, in People v. Fox, 928 P.2d 820 (Colo. App.

1996), the court held that a mere shove was sufficient force to sustain a robbery

conviction. Id. at 821 (“[A]t the moment that defendant shoved the husband, he

19

was utilizing force.”). And in Leyba v. People, 481 P.2d 417, 418 (Colo. 1971), a de-

fendant’s conviction was affirmed when he did nothing more than “put his hand over

[the victim’s] mouth” to keep her from screaming and “grab[] her purse.” 481 P.2d

417, 418 (Colo. 1971).

Colorado courts routinely rely on national treatises and cases from other ju-

risdictions to define the scope of Colorado robbery. See Borghesi, 66 P.3d at 99–101;

People v. Bartowsheski, 661 P.2d 235 (Colo. 1983) (en banc). Such authorities provide

further illustrations of conduct that has a realistic possibility of triggering application

of Colorado’s robbery statute. See Najera-Mendoza, 683 F.3d at 631–32.

In Williams v. Commonwealth, 50 S.W. 240, 240 (Ky. 1899), the defendant

“wrenched the pocketbook out of [the victim’s] left hand” and obtained possession

because he was “stronger” than she was. On appeal, it was “insisted by counsel that

upon this evidence appellant could only be convicted of theft, - petit larceny.” Id.

Because Kentucky statutes did not define robbery, the court applied the traditional

common law definition: “larceny from the person, accompanied by violence or put-

ting in fear.” Id. (“The crime of robbery in this state is the same as at common law.”).

Applying common-law principles, the court held: “It is not necessary that a blow

should be struck or the party be injured, to be a violent taking; but if the robber

20

overcomes resistance by force, he is guilty.” Id. at 241. Thus, the evidence proved a

robbery. Id. at 240–41, cited with approval by 4 Wharton’s Criminal Law § 465.

In Mahoney v. People, one man crowded the victim against the door of a street

car, while another threw his arm around the victim’s neck, pulled him close, and

rifled through his pockets. 48 How. Pr. 185, 189 (N.Y. Sup. Ct. 1874). Although

what the defendants did was nothing more than “bewilder and confuse” and “dis-

tract[] the attention” of the victim, this amounted to “violence” for common-law

robbery purposes. Id. at 190. Citing common-law authorities, the court explained

that any physical act “sufficient to take . . . property” “against the owner’s will” makes

the offense robbery, not mere larceny. Id. at 189–90, cited with approval by 3 LaFave,

supra, § 20.3. See also Seymour v. State, 15 Ind. 288 (1860) (crowding and pushing

victim to distract his attention while picking his pocket was robbery).

Finally, giving a person liquor or sedatives in order to take the person’s prop-

erty while the victim is oblivious is uniformly held to constitute adequate “violence”

to sustain a robbery conviction at common law. 3 LaFave, supra, § 20.3. In People v.

Dreas, 200 Cal. Rptr. 586, 588 (Cal. App. 1984), the defendant “surreptitiously in-

sert[ed] Lorazepam, a hypnotic sedative and tranquilizer, into the victim’s coffee”

and then took the victim’s property. The defendant contended that this was not

sufficient force to sustain a robbery conviction. The court affirmed the conviction,

21

explaining that “the legal authorities and sister state cases unanimously underline”

that such conduct falls within the scope of robbery. Id. at 589. Significantly, nothing

in Dreas or the authorities it followed turned on any possibility that the robbery vic-

tim might suffer pain or injury from administration of the sedative. (And in fact,

benzodiazepine drugs like Lorazepam “are remarkably non-toxic;” “even large doses

rarely produce serious effects.” C. Heather Ashton et al., Benzodiazepine Overdose:

Are Specific Agonists Useful?, 290 Br. Med. J. 805, 805 (1985).) Rather, as Dreas ex-

plained, the “logical foundation” on which this line of cases rests is that administering

an intoxicant is akin to actual force in that it is a means of accomplishing “a taking

against the will of the victim.” 200 Cal. Rptr. at 589, cited with approval by 3 LaFave,

supra, § 20.3.

The conduct described above is indistinguishable from conduct that other

courts have held falls short of the powerful physical force required under Johnson I.

A “very slight tug” on a purse (Davis, 935 P.2d 79) is not meaningfully different from

grabbing a pocketbook from a person’s arm (Parnell, 818 F.3d at 979) or grabbing

someone’s jacket (Shell, 789 F.3d at 314). Shoving someone (Fox, 928 P.2d 820) is

the same as purposefully bumping (Dominguez-Maroyoqui, 748 F.3d at 921) or jolting

(id.) someone, and it’s less violent than kicking (Flores-Cordero, 723 F.3d at 1087–

88) or pushing a person so hard that she falls (Gardner, ___ F.3d at ____, 2016 WL

22

2893881, at *7). Covering a victim’s mouth without her consent (Leyba, 481 P.2d at

418) or pulling a victim close without his consent (Mahoney, 48 How. Pr. at 189),

cannot be deemed more violent than inflicting sexual intercourse upon a victim

without consent (Shell, 789 F.3d at 341). Wrenching a pocketbook from a victim’s

hands (Williams, 50 S.W. at 240) is indistinguishable from pulling a purse from a

victim’s hands (Parnell, 818 F.3d at 979). And drugging a person with a substance

unlikely to cause harm (Dreas, 200 Cal. Rptr. at 588–89) is less violent than inten-

tionally injuring a person with poison (Andino-Ortega, 608 F.3d at 310–11).

More broadly, the authorities above establish that the smallest amount of force

required to commit Colorado robbery is de minimis physical contact. The Supreme

Court squarely held in Johnson I that de minimis physical contact is insufficient to

satisfy the elements clause. 559 U.S. at 137–42. Furthermore, the Fourth Circuit in

Gardner addressed a statute that codified the common law of robbery and held that

such an offense does not satisfy the elements clause under Johnson I. See ___ F.3d at

____, 2016 WL 2893881, at *7. Likewise, the Ninth Circuit in Parnell, 818 F.3d at

979, held that an offense that tracked the common law of robbery failed the elements

clause. The government cannot distinguish Garner or Parnell, and this Court should

not create a circuit split. See United States v. Smith, 815 F.3d 671, 677 (10th Cir.

2016) (court should “avoid[] the unnecessary creation of a circuit split”); Jewell v.

23

United States, 749 F.3d 1295, 1300 (10th Cir. 2014) (court should “not lightly create

a circuit split”).

Holding that Colorado robbery simpliciter is not a violent felony would not

necessarily preclude courts from treating many robbery convictions as triggers for the

ACCA. Colorado convictions for aggravated robbery under Colo. Rev. Stat. § 18-4-

302, which covers robberies that involve a deadly weapon, could be distinguished.

See United States v. Ramon-Silva, 608 F.3d 663, 670–72 (10th Cir. 2010) (suggesting

that even de minimis contact with a deadly weapon satisfies the elements clause). The

other states in this circuit also have separate aggravated robbery offenses that might

be distinguished on this and other grounds. N. M. Stat. Ann. § 30-16-2 (use of dan-

gerous weapon); Kan. Stat. Ann. § 21-5420 (dangerous weapon or infliction of bodily

harm); Utah Code Ann. § 76-6-302 (deadly weapon, inflicting or threatening to in-

flict serious bodily injury); Wyo. Stat. Ann. § 6-2-401 (same); 21 Okla. Stat. Ann.

§§ 787, 801 (deadly weapon, inflicting or threatening to inflict serious bodily injury,

or committing or threatening to commit a felony upon the victim); see also 18 U.S.C.

§ 2113(d) (use of a dangerous weapon converts a bank robbery into aggravated bank

robbery).

24

Because Colorado robbery does not have the use, attempted use, or threatened

use of physical force as an element for purposes of 18 U.S.C. § 924(e)(2)(B)(i), Mr.

Harris’s ACCA sentence cannot be sustained. Robbery is not enumerated in

§ 924(e)(2)(B)(ii), so Mr. Harris’s robbery conviction could qualify as an ACCA

predicate only under the residual clause, which cannot support an increased sen-

tence under Johnson I and Welch. Mr. Harris’s two drug offenses are the only viable

ACCA predicates, and they are not enough. 18 U.S.C. § 924(e)(1). Accordingly,

this Court should reverse the judgment below and vacate Mr. Harris’s ACCA sen-

tence.

IV. This Court Should Order Mr. Harris’s Immediate Release.

This Court should directly order the Bureau of Prisons to release Mr. Harris

without delay. Unless the ACCA applies, the maximum penalty for Mr. Harris’s con-

viction is 10 years’ imprisonment. Mathis, ___ S. Ct. ____, 2016 WL 3434400, at *3.

Mr. Harris has been in prison since 2004 and so, by hypothesis, is currently serving a

punishment in excess of the statutory maximum. Requiring a defendant to serve a

sentence in excess of the statutory maximum violates due process. United States v.

Shipp, 589 F.3d 1084, 1088 (10th Cir. 2009). Mr. Harris is suffering a continuing and

irreparable violation of his due process rights every day that he remains incarcerated.

25

The habeas statutes “vest[] a federal court with the largest power to control

and direct the form of judgment to be entered in cases brought up before it.” Hilton

v. Braunskill, 481 U.S. 770, 775 (1987) (quotation marks omitted). This Court has

the authority to order Mr. Harris’s release directly. See, e.g., Brown v. Poole, 337 F.3d

1155, 1162 (9th Cir. 2003) (“Brown is ordered released from custody forthwith.”);

Mickens-Thomas v. Vaughn, 407 F. App’x 597, 598, 602 & n. 8 (3d Cir. 2011) (un-

published) (“We order Thomas released forthwith as soon as his attorney has found

suitable accommodations for him pending his contact with the parole office.”). It

should do so to avoid further violation of Mr. Harris’s constitutional rights.

Alternatively, the Court should instruct the district court to issue an order

that Mr. Harris be immediately released and direct that the mandate be issued im-

mediately. See Kelley v. Roberts, 998 F.2d 802, 809 n.11 (10th Cir. 1993).

CONCLUSION

WHEREFORE, this Court should reverse the district court, vacate Mr. Har-

ris’s ACCA sentence, and order his immediate release.

26

STATEMENT REGARDING ORAL ARGUMENT This Court has scheduled this case for oral argument, and counsel believes

that oral argument will assist the Court in reaching a proper resolution of this appeal.

Respectfully submitted, VIRGINIA L. GRADY Federal Public Defender /s/ Josh Lee JOSH LEE Assistant Federal Public Defender 633 17th Street, Suite 1000 Denver, Colorado 80202 (303) 294-7002 josh.lee@fd.org Counsel for Appellant, Michael Harris

27

CERTIFICATE OF COMPLIANCE As required by Fed. R. App. P. 32(a)(7)(C), I certify that this brief is proportionally spaced and contains 6027 words. I relied on my word processor to obtain the count and it is Microsoft Word 2013. I certify that the information on this form is true and correct to the best of my knowledge and belief formed after a reasonable in-quiry.

/s/ Josh Lee JOSH LEE

Assistant Federal Public Defender

CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing

APPELLANT'S OPENING BRIEF

(1) all required privacy redactions have been made; (2) if required to file additional hard copies, that the ECF submission is an exact

copy of those documents; (3) the ECF submission was scanned for viruses with the most recent version of a

commercial virus scanning program Symantec Endpoint Protection, which is continuously updated, and, according to the program is free of viruses.

/s/ Josh Lee

JOSH LEE Assistant Federal Public Defender

28

CERTIFICATE OF SERVICE

I hereby certify that on July 1, 2016, I electronically filed the foregoing

APPELLANT'S OPENING BRIEF

using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Bishop Grewell, Assistant United States Attorney Bishop.Grewell@usdoj.gov and I hereby certify that I have mailed or served the document or paper to the follow-ing in the manner indicated: Michael Harris (via U.S. mail)

/s/ Clarita Costigan Clarita Costigan, Legal Secretary