*1 Before HARTZ , HOLMES , and EID , Circuit Judges.
_________________________________
HOLMES , Circuit Judge.
_________________________________
Defendant-Appellant Abasi S. Baker (“Mr. Baker”) appeals from the district
court’s denial of his second or successive motion pursuant to 28 U.S.C. § 2255,
challenging his convictions under 18 U.S.C. § 924(c). After we authorized this
motion based on the Supreme Court’s 2019 decision in
United States v. Davis
, ---
U.S. ----,
In light of the contention that Hobbs Act robbery can be accomplished by threatening injury to intangible property, was United States v. Melgar- Cabrera,892 F.3d 1053 , 1064-66 (10th Cir. 2018) (holding that Hobbs Act robbery qualifies as a crime of violence under the elements clause of § 924(c)(3)(A)), wrongly decided because Hobbs Act robbery would not qualify as a crime of violence either categorically under § 924(c)(3)(A) or under § 924(c)(3)(B) after United States v. Davis[]?
Order, No. 20-3062, at 1 (10th Cir., filed June 10, 2020). Rather than directly address this issue, however, Mr. Baker, in his supplemental opening brief, [1] requests that we exercise our discretion to “expand” the COA to cover the following, reframed issue:
Is Mr. Baker entitled to § 2255 relief because (a) the offenses relating to Hobbs Act robbery that underlie his § 924(c) convictions could have been committed by a threat to property; (b) the modified categorical approach does not rule out this possibility; (c) this court has no binding precedent that prevents it from holding that Hobbs Act robbery by a threat to property (whether tangible or intangible) does not satisfy § 924(c)’s force [i.e., elements] clause; [2] and (d) he can show his convictions rest on § 924(c)’s unconstitutional residual clause?
Aplt.’s Suppl. Opening Br. at 2. In other words, Mr. Baker effectively attempts: (1) to argue that Hobbs Act robbery, when accomplished through threats to injure any property—tangible or intangible—is not a crime of violence under § 924(c)(3)(A), and (2) our decision in United States v. Melgar-Cabrera , where we held Hobbs Act robbery categorically qualifies as a crime of violence under § 924(c)(3)(A), see 892 F.3d 1053, 1060 n.4 (10th Cir. 2018), does not bar his argument because it is inapposite.
Moreover, during the pendency of this appeal, the Supreme Court decided
United States v. Taylor
, --- U.S. ----,
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s dismissal of Mr. Baker’s § 2255 motion, deny Mr. Baker’s request to expand the COA and dismiss that portion of this matter, and remand the case to allow the district court to determine in the first instance whether it is lawful and otherwise appropriate to permit Mr. Baker to amend his § 2255 motion to make a Taylor -like argument as to Count 11.
I
In March 2011, Mr. Baker was charged with numerous federal crimes in a
multi-count indictment, including seven counts of Hobbs Act robbery, in violation of
18 U.S.C. § 1951; seven counts of using a firearm during and in relation to a crime of
violence (i.e., the Hobbs Act robberies), in violation of 18 U.S.C. § 924(c); and seven
counts of being a convicted felon in possession of a handgun, in violation of 18
U.S.C. § 922(g).
See generally United States v. Baker
,
The charges related to a series of armed robberies in the Kansas City, Kansas,
area in early 2011.
See Baker
,
Mr. Baker brought his first collateral challenge to his convictions under 28 U.S.C. § 2255 in 2014, but it was unsuccessful. See Case No. 2:11-cr-20020-JWL, Doc. 207 (Dist. Ct. Mem. & Order, entered June 17, 2015) (denying Mr. Baker’s petition to vacate, set aside, or correct his sentence). In 2016, Mr. Baker moved for authorization to file a second or successive § 2255 motion predicated on the purported invalidity of § 924(c)(3)(B), that is, the section’s “residual clause.” See Appl. for Leave to File a Successive Mot. under 28 U.S.C. § 2255, No. 16-3131 (10th Cir., filed May 20, 2016). Following United States v. Davis , in which the Supreme Court invalidated § 924(c)’s residual clause as unconstitutionally vague, we authorized Mr. Baker to file a successive § 2255 motion under § 2255(h)(2), as it would “rel[y] on ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.’” R. at 29 were not included in the record on appeal, but they are accessible from the district court docket. We may therefore take judicial notice of the filings.”).
(10th Cir. Order, filed Jan. 8, 2020) (citing
In re Mullins
,
The district court denied Mr. Baker’s motion.
Id.
at 61–62 (Mem. & Order,
entered Mar. 25, 2020). The court noted that we have “squarely held that Hobbs Act
robbery is categorically a crime of violеnce under the elements clause of
§ 924(c)(3)(A) because that clause requires the use of force and the force element in
Hobbs Act robbery ‘can only be satisfied by violent force.’”
Id.
(quoting
Melgar-
Cabrera
,
On appeal, Mr. Baker filed a pro se opening brief and application for a COA, which we granted. See Aplt.’s Combined Opening Br. and Appl. for a COA; Order, No. 20-3062, at 1 (10th Cir., filed June 10, 2020). “In accordance with § 2255(c),” we granted a COA “as to the following issue”:
In light of the contention that Hobbs Act robbery can be accomplished by threatening injury to intangible property, was United States v. Melgar- Cabrera[] (holding that Hobbs Act robbery qualifies as a crime of violence under the elements clause of § 924(c)(3)(A)), wrongly decided because Hobbs Act robbery would not qualify as a crime of violence either categorically under § 924(c)(3)(A) or under § 924(c)(3)(B) after United States v. Davis[]?
Order, No. 20-3062, at 1 (10th Cir., filed June 10, 2020) . In other words, by granting the COA, we invited a reexamination of the validity and scope of our holding in —more specifically, its crime-of-violence holding concerning the elements clause, § 924(c)(3)(A))—against the backdrop of the Supreme Court’s decision in Davis , which struck down the other potential basis for a § 924(c)(3) crime-of-violence determination, the residual clause, § 924(c)(3)(B).
Yet, as discussed above, Mr. Baker in his supplemental opening brief
effectively sidesteps the narrow question as to which we granted a COA—centered
on the vitality
vel non
of ’s holding as applied to threats to injure
intangible property—and asks that we exercise our discretion to “expand” the COA
to cover his broader argument that Hobbs Act robbery can be accomplished by
threatening injury to
any
property, thus it does not satisfy § 924(c)’s elements clause.
Aplt.’s Suppl. Opening Br. at 2. Particularly, Mr. Baker avers that “Melgar-Cabrera
does not prevent this court from accepting Mr. Baker’s position and neither does any
other decision of this court.”
Id.
at 11. For support, Mr. Baker points to
United
States v. O’Connor
,
Furthermore, in June 2022, the Supreme Court decided
United States v. Taylor
,
--- U.S. ----,
II
Mr. Baker’s § 2255 motion challenges his § 924(c) convictions. “A 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.”’”
United States v.
Harris
,
Mr. Baker also requests that we expand the COA. “[C]ircuit courts, including
our own, have recognized that they possess the authority to expand the COA to cover
uncertified, underlying constitutional claims asserted by an appellant.”
United States
v. Shipp
,
More specifically, because the COA inquiry “is not coextensive with a merits
analysis,” the “only question” at the COA stage “is whether the applicant has shown
that ‘jurists of reason could disagree with the district court’s resolution . . . or that
jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further.’”
Buck v. Davis
, --- U.S. ----,
III
A
Section 924(c)(1)(A) mandates a minimum five-year sentence for anyone
convicted of “us[ing] or carr[ying] a firearm” “during and in relation to any crime of
violence.” 18 U.S.C. § 924(c)(1)(A)(i);
see United States v. King
,
In
United States v. Davis
, the Supreme Court held that clause (B)—the
“residual clause”—is unconstitutionally vague.
“To prevail on appeal, [a petitioner] must establish that his conviction[s]
cannot be sustained under § 924(c)’s elements clause.”
United States v. Muskett
, 970
F.3d 1233, 1238 (10th Cir. 2020),
cert. denied
,
We compare the scope of conduct covered by the predicate crime’s elements
with § 924(c)(3)(A)’s definition of “crime of violenсe”—and, crucially, “we
*12
‘presume that [an offender’s] conviction rested upon nothing more than the least of
the acts criminalized, and then determine whether even those acts are encompassed
by [§ 924(c)(3)(A)].’”
Bowen
,
In this appeal, we are concerned with whether Hobbs Act robbery categorically qualifies as a crime of violence under § 924(c)(3)(A). Hobbs Act robbery is defined as follows:
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
18 U.S.C. § 1951(a). The statute further defines “robbery” as
the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediаte or future, to his person or property, or *13 property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
Id. § 1951(b)(1).
B
The original issue as to which we granted a COA was, in pertinent part, whether “[i]n light of the contention that Hobbs Act robbery can be accomplished by threatening injury to intangible property, was [ Melgar-Cabrera ] . . . wrongly decided because Hobbs Act robbery would not qualify as a crime of violence . . . categorically under § 924(c)(3)(A).” Order, No. 20-3062, at 1 (10th Cir., filed June 10, 2020) (emphasis added). And as we have explained above, Mr. Baker further requests that “we expand the COA to include” the reframed question he рoses: that is, whether Hobbs Act robbery is not a crime of violence because the offenses involving Hobbs Act robbery that underlie his § 924(c) convictions could have been committed by a threat to any property, which purportedly does not satisfy § 924(c)’s elements clause. Aplt.’s Suppl. Opening Br. at 3. He writes that “[w]hat is true to threats to tangible property is also true as to threats to intangible property.” Id. at 27; see also id. at 28 (“[A] threat to damage either tangible or intangible property can be made without the threat of the violent force needed to satisfy § 924(c)’s force clause” (emphasis added)).
Mr. Baker does not opt to challenge the vitality of Melgar-Cabrera . Instead, he suggests that ’s holding is inapposite and contends that, regardless of that case, his offenses of Hobbs Act robbery are not crimes of violеnce; accordingly, they *14 would not support his convictions for violating 18 U.S.C. § 924(c). Id. at 10. Specifically, he writes that “Hobbs Act robbery (or its attempt) by a threat to any property—whether tangible or intangible—is not a crime of violence of § 924(c).” Id. at 10–11. And, as for Melgar-Cabrera , Mr. Baker thinks “Melgar-Cabrera did not consider the argument” he makes on appeal: that decision, he avers, “merely rejected other arguments for why Hobbs Act robbery does not satisfy the force clause.” Id. at 10.
Having carefully considered Mr. Baker’s arguments, however, we are not persuaded. We conclude that Melgar-Cabrera is controlling here—both as to the original issue regarding which we granted a COA, and as to the question Mr. Baker presents in his exрansion request. As to the expansion request, we need not adjudicate the merits of Mr. Baker’s reframed question—and indeed cannot properly do so, see Buck , 137 S. Ct. at 773—in order to determine that the rejection of this question is not reasonably debatable under Melgar-Cabrera . With that analytical limitation recognized, we conclude that Melgar-Cabrera ’s holding is fatal to both his appeal and his request for an expansion of the COA.
In
Melgar-Cabrera
, we were faced with the question of whether Hobbs Act
robbery is a crime of violence under § 924(c)’s elements clause, and we resolved it
clearly, “employ[ing] the categorical approach,” to “conclu[de] that Hobbs Act
robbery
is
a crime of violence under the elements clause of § 924(c)(3).” 892 F.3d at
1060 n.4, 1061 (emphasis added). In other words, we concluded in that Hobbs Act robbery is
categorically
a crime of violence.
Id.
at 1061. That we
reached this crime-of-violence determination under a categorical approach is
*15
important for present purposes because it means that, in effect, we concluded that
every act—including the least of the acts—criminalized by Hobbs Act robbery
constitutes a crime a violence.
See, e.g.
,
Moncrieffe
,
In our subsequent published decisions, we have left no doubt regarding the
categorical scope оf our holding in
Melgar-Cabrera
. In
United States v. Jefferson
(Jefferson I)
, for instance, we observed that
Melgar-Cabrera
“decided Hobbs Act
robbery is categorically a ‘crime of violence’ under § 924(c)(3)(A)’s elements clause
because the clause requires the use of violent force, i.e., force capable of causing
physical pain or injury to another person, and the force element in Hobbs Act robbery
can be satisfied
only
by violent force.”
Additionally, Mr. Baker’s own admissions on appeal make clear that, no
matter his efforts, his appeal and request to expand the COA cannot overcome
Melgar-Cabrera
’s holding. Mr. Baker acknowledges that we should employ the
categorical approach in determining whether Hobbs Act robbery is a “crime of
violence”
and
that Hobbs Act robbery is not a divisible crime.
See
Aplt.’s Suppl.
Opening Br. at 17 (“The determination of whether Hobbs Act robbery satisfies the
[elements] clause is made without respect to the particular facts of Mr. Baker’s case.
Instead, this court employs the familiar categorical approach.”);
id.
at 18–19 (“The
modified categorical approach cannot be used as to Hobbs Act robbery. The Hobbs
Act is divisible between robbery and extortion . . . . But Hobbs Act robbery is not
further divisible.”). In effect, then, Mr. Baker acknowledges that either Hobbs Act
robbery is a crime of violence, or it is not, as judged by the minimum conduct made
culpable by its terms.
See Bowen
,
To be sure, Mr. Baker says that we can avoid by recognizing that the case did not specifically grapple with his arguments here. See, e.g. , Aplt.’s Suppl. Opening Br. at 28, 30–31. As his reasoning goes, because Melgar-Cabrera did not consider the possibility that Hobbs Act robbery can be accomplished through threats or “fear of injury” directed towards intangible or tangible property, we can *18 hold that Hobbs Act robberies committed by such threats are not qualifying crimes of violence under § 924(c)(3)(A). See id. at 38–39 (explaining that “Melgar-Cabrera did not address an argument based on a threat to intangible property” and “this court did not resolve the issue Mr. Baker raises here in Melgar-Cabrera”); Aplt.’s Reply Br. at 6, 10 (claiming that, because Melgar-Cabrera did not consider an argument “that involved the fear оf injury to property,” it does not constitute binding precedent on that particular argument). However, we are constrained to reject this line of reasoning.
“[U]nless and until the holding of a prior decision is overruled by the Supreme
Court or by the en banc court, that holding is the law of this Circuit
regardless of
what might have happened had other arguments been made to the panel that decided
the issue first.
”
Thompson v. Weyerhaeuser Co.
,
Furthermore, Mr. Baker’s reliance on United States v. Bowen and United States v. O’Connor to bolster his position is unavailing. See Aplt.’s Suppl. Opening Br. at 10–13. Mr. Baker claims that, under those two decisions, his specific “convictions for Hobbs Act robbery . . . are not crimes of violence under § 924(c)’s force clause.” Id. at 10. Those two decisions, Mr. Baker avers, establish that Hobbs Act robbery is not categorically a crime of violence under § 924(c)’s elements clause “because it can be committed by a threat to harm property that does not involve a threat to use violent force.” Id. at 21.
However, as a panel of our court has persuasively reasoned, “[w]e already
have stated that
Bowen
does not call into question
Melgar–Cabrera
’s holding that
Hobbs Act robbery is categorically a crime of violence.”
United States v. Hopkins
,
As to
O’Connor
, we observed that “[b]ecause Hobbs Act robbery encompasses
threats to property and generic robbery excludes threats that are limited to property,
the minimum conduct necessary to constitute Hobbs Act robbery does not
categorically fall within generic robbery.”
O’Connor
,
The force clause under § 4B1.2(a)(1)— the clause applicable here—provides an offense is a crime of violence if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” By contrast, the force clause in § 924(c)(3)(A) includes any crime that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
Id. (first quoting U.S.S.G. § 4B1.2(a)(1); and then quoting 18 U.S.C. § 924(c)(3)(A)). Thus, O’Connor found “[t]here is nothing incongruous about holding that Hobbs Act rоbbery is a crime of violence for purposes of 18 U.S.C. § 924(c)(3)(A), which includes force against a person or property, but not for purposes of U.S.S.G. *21 § 4B1.2(a)(1), which is limited to force against a person.” Id. Under a similar logic, it does not ineluctably follow that because Hobbs Act robbery is not a crime of violence as defined in U.S.S.G. § 4B1.2(a)(1) that it is not a crime of violence as defined in § 924(c)(3)(A). In sum, O’Connor , like Bowen , did not disturb our holding in Melgar-Cabrera as to whether Hobbs Act robbery is categorically a crime of violence under § 924(c)(3)(A). So, Mr. Baker’s reliance on O’Connor is misplaced.
* * *
Accordingly, based on the foregoing analysis, we conclude that Mr. Baker’s
arguments are unavailing. We uphold the district court’s dismissal of Mr. Baker’s
§ 2255 motion as to the issue upon which we granted COA—which questioned the
vitality of ’s holding as applied to threats to injure intangible
prоperty.
[5]
Furthermore, applying the Supreme Court’s well-defined COA
*22
framework, we deny Mr. Baker’s request to expand the COA: he fails to persuade us
that “reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong.”
Trammel
,
C
In June 2022, the Supreme Court decided
United States v. Taylor
.
Taylor
held
that
attempted
Hobbs Act robbery was categorically not a crime of violence under
§ 924(c)(3)(A).
See
Taylor ’s holding is nevertheless of keen interest to Mr. Baker because his Count 11 conviction under § 924(c) is predicated on attempted Hobbs Act robbery. See Case No. 2:11-cr-20020-JWL, Doc. 16, at 6; Aplt.’s Suppl. Br. Filed Post- Taylor at 5. But Mr. Baker’s problem is that Taylor has no place in this appeal.
Cir.) (unpublished),
cert. denied
,
Recall that the COA before us did not contemplate a separate and independent crime-of-violence analysis for the offense of attempted Hobbs Act robbery. Rather, our COA simply asked whether a Hobbs Act robbery—without distinguishing betwеen a completed or an attempted offense—which involved a threat to injure intangible property was categorically a crime of violence under § 924(c)(3)(A). And, importantly, prior to Taylor , Mr. Baker never advocated for such a separate and independent analysis for attempted Hobbs Act robbery. More specifically, prior to Taylor , though Mr. Baker mentioned that he had been convicted of attempted Hobbs Act robbery at numerous points in his briefing, he never made a separate argument for relief confined to his attempted Hobbs Act robbery conviction. See, e.g. , Aplt.’s Suppl. Opening Br. at 14, 16–17.
In other words, while Mr. Baker argued that the completed act of Hobbs Act
robbery is not categorically a crime of violence, he did not suggest—as the
government points out—that his conviction for attempted Hobbs Act robbery should
be analyzed separately on the crime-of-violence issue.
See
Aplee.’s Resp. Br. at 22
n.8 (“[Mr. Baker] does not contend that there is any difference between attempted
and completed Hobbs Act robbery for purposes of determining whether those
predicates qualify as crimes of violence under Section 924(c)(3)(A). Rather, he
contends that ‘Hobbs Act robbery (and its attempt) by a threat to property does not
satisfy § 924(c)’s force clause.’” (quoting Aplt.’s Suppl. Opening Br. at 11));
see also
Aplee.’s Resp. Br. Filed Post-
Taylor
at 8 (explaining that Mr. Baker did not contend
there is any difference between attempted and completed Hobbs Act robbery for
*24
purposes оf the appellate issues before us). Therefore, Mr. Baker has not preserved
such an attempt-based, crime-of-violence argument for purposes of this appeal.
See
Heard v. Addison
,
Notably, Mr. Baker does not argue now for an expansion of the COA in light of Taylor . Instead, through his supplemental briefing, Mr. Baker asks thаt we either summarily vacate his Count 11 conviction on the grounds that it is fatally infirm due to Taylor , or alternatively, remand the proceedings to the district court to allow him to amend his § 2255 motion to make a Taylor -like argument in the first instance. Aplt.’s Suppl. Br. Filed Post- Taylor at 5–10. Because, as we have noted, the issue of whether, standing alone, the offense of attempted Hobbs Act robbery is a crime of violence was never properly raised in this appeal—that is, we did not grant a COA regarding that issue—and, moreover, because Mr. Baker has failed to brief the issue and has not sought an expansion of the COA to include the issue, we reject Mr. Baker’s request to summarily vacate his Count 11 convictiоn based on Taylor .
That said, we remand this action to the district court to determine whether it is
legally permissible and otherwise appropriate to allow Mr. Baker to amend his
§ 2255 motion to advance a
Taylor
-like argument.
See, e.g.
,
Kerr v. Hickenlooper
,
*25
More specifically, among the issues that the district court must decide on
remand is whether such an amendment would be timely.
See
28 U.S.C. § 2255(f);
United States v. Mathisen
,
To be clear, however, in ordering this remand, it is not our intention to offer any opinion—and we do not do so—on whether Mr. Baker should be permitted to amend his § 2255 motion to include a Taylor -like argument or on the outcome of any resulting proceeding, if such an amendment is permitted. In the first instance, we leave those matters for the district court’s resolution.
IV
For the foregoing reasons, we AFFIRM the district court’s dismissal of Mr. Baker’s § 2255 motion, DENY Mr. Baker’s request to expand the COA and DISMISS that portion of this matter, and REMAND the case for further proceedings consistent with this opinion.
Notes
[1] We appointed the Office of the Federal Public Defеnder for the District of Colorado to represent Mr. Baker in his appeal, pursuant to 18 U.S.C. § 3006A(a)(2)(B). See Aplt.’s Combined Opening Br. and Appl. for a COA; Order, No. 20-3062 at 2 (10th Cir., filed June 10, 2020). We also established the parties’ briefing schedule and specifically ordered Mr. Baker’s counsel to file a supplemental opening brief within sixty days of our order, which counsel did.
[2] As will become apparent from our discussion, courts and litigants alike
refer synonymously to the language of § 924(c)(3)(A) as either the “elements or force
clause.” ,
[3] Mr. Baker has not included documents from his initial prosecution, such as the indictment and jury verdict, in the record on appeal. We take judicial notice of these doсuments from the district court’s docket. See, e.g. , Bunn v. Perdue , 966 F.3d 1094, 1096 n.4 (10th Cir. 2020) (“Some of the relevant . . . filings in district court . . .
[4] Likewise, numerous unpublished panel decisions from this Court—
though not binding—have characterized
Melgar-Cabrera
’s holding as categorical.
See, e.g.
,
United States v. Nguyen
,
[5] Notably, the Fourth Circuit rejected an argument that “because Hobbs
Act robbery may be accomplished by threatening another with injury to
intangible
property, such as shares of stock in a corporation, Hobbs Act robbery does not
qualify as a crime of violence under the [elements] clause.”
United States v. Mathis
,