United States v. Lucero
20-1323
| 10th Cir. | Jun 25, 2021Background
- Lucero was indicted on conspiracy to commit bank robbery (Count 1), bank robbery (Count 2), and possessing/brandishing a firearm in furtherance of a bank robbery under 18 U.S.C. § 924(c)(1)(A)(ii) (Count 3); he pled guilty to Counts 1 and 3, Count 2 was dismissed.
- The § 924(c) conviction carried a mandatory consecutive seven-year sentence, imposed after a 60‑month sentence on Count 1.
- After United States v. Davis, Lucero filed a § 2255 motion arguing the residual clause of § 924(c)(3) was void for vagueness and that his predicate (conspiracy) only qualified under the residual clause.
- The government conceded the conspiracy conviction did not qualify under the elements clause but argued the plea and record showed the § 924(c) predicate was Count 2 (armed bank robbery under 18 U.S.C. §§ 2113(a) and (d)), which does qualify under the elements clause.
- The district court applied the modified categorical approach, concluded Count 2 alleged armed bank robbery (§§ 2113(a),(d)), and held armed bank robbery is categorically a crime of violence under § 924(c)(3)(A); it denied relief and a COA.
- Lucero appealed; the Tenth Circuit denied a COA and dismissed, concluding Lucero waived the "means" argument and, on the merits, armed bank robbery necessarily involves violent force and thus satisfies the elements clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lucero waived the "means" (Mathis) argument by failing to raise it below | Lucero: § 2113(a) first paragraph is indivisible because it lists alternative means (robbery by force/intimidation vs extortion), so Mathis/categorical approach applies | Government: Record and plea show predicate was armed bank robbery (§§ 2113(a),(d)), so modified categorical approach and elements clause apply | Court: Lucero waived the argument on appeal; waiver sufficient alone to deny COA but court also rejects argument on merits |
| Whether Count 2 is a divisible offense permitting the modified categorical approach | Lucero: § 2113(a) alternatives are means, not elements, so cannot look to plea to isolate an elements clause match | Government: Count 2 alleged §§ 2113(a) and (d) (armed bank robbery), which is a distinct, divisible offense | Court: Count 2 alleged armed bank robbery (a §§ 2113(a),(d) offense); modified categorical approach properly used |
| Whether armed bank robbery under §§ 2113(a),(d) categorically qualifies as a "crime of violence" under § 924(c)(3)(A) (elements clause) | Lucero: Extortion variant could be non-violent and thus § 2113(a) might not categorically require violent physical force | Government: Armed bank robbery (with § 2113(d) allegation) requires use/jeopardizing life via a dangerous weapon — necessarily violent force | Court: Armed bank robbery cannot be committed by mere extortion/fear; it requires violent force and thus categorically fits the elements clause |
| Whether Lucero is entitled to relief under Davis (residual clause invalid) | Lucero: His § 924(c) conviction relied on the now-invalid residual clause because conspiracy was the predicate | Government: Even if residual clause invalid, the conviction independently rests on an elements-clause predicate (armed bank robbery) | Court: Reasonable jurists could not debate that the § 924(c) conviction rested on the elements clause; Davis does not provide relief |
Key Cases Cited
- United States v. Davis, 139 S. Ct. 2319 (2019) (held § 924(c)(3) residual clause unconstitutionally vague)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes means vs elements; governs use of modified categorical approach)
- Descamps v. United States, 570 U.S. 254 (2013) (limits application of the modified categorical approach)
- Melgar-Cabrera v. United States, 892 F.3d 1053 (10th Cir. 2018) ("physical force" in § 924(c)(3)(A) means violent force)
- Slack v. McDaniel, 529 U.S. 473 (2000) (standard for certificate of appealability)
- United States v. Hill, 971 F.2d 1461 (10th Cir. 1992) (conviction under § 924(c) does not require conviction of underlying offense)
- United States v. Bowen, 936 F.3d 1091 (10th Cir. 2019) (Davis is retroactively applicable on collateral review)