United States v. Brooks, No. 20-5115 (10th Cir. 2023)

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Appellate Case: 20-5115 Document: 010110810029 Date Filed: 02/08/2023 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________ UNITED STATES OF AMERICA, Page: 1 FILED United States Court of Appeals Tenth Circuit February 8, 2023 Christopher M. Wolpert Clerk of Court Plaintiff - Appellee, v. JAMES FRANKLIN BROOKS, No. 20-5115 (D.C. Nos. 4:20-CV-00239-TCK-JFJ & 4:08-CR-00061-TCK-1) (N.D. Okla.) Defendant - Appellant. _________________________________ ORDER AND JUDGMENT* _________________________________ Before BACHARACH, BALDOCK, and CARSON, Circuit Judges. _________________________________ James Brooks appeals the district court’s dismissal of a second motion under 28 U.S.C. § 2255 seeking to vacate his convictions for use of a deadly weapon during a crime of violence in violation of 18 U.S.C. § 924(c). We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. In 2008, a jury convicted Mr. Brooks of two counts of Hobbs Act robbery, 18 U.S.C. § 1951(a); two counts of using a pistol during a crime of violence, * After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 20-5115 Document: 010110810029 Date Filed: 02/08/2023 Page: 2 18 U.S.C. § 924(c); and one count of possessing a pistol and ammunition after a previous felony conviction, 18 U.S.C. § 922(g). This court affirmed Mr. Brooks’s conviction on direct appeal. See United States v. Brooks, 569 F.3d 1284, 1286 (10th Cir. 2009). Mr. Brooks sought relief under § 2255, which the district court denied. In 2019, the Supreme Court decided United States v. Davis, 139 S. Ct. 2319 (2019). In Davis, the Court held the residual clause of § 924(c)(3) was unconstitutionally vague.1 139 S. Ct. at 2323–24. We authorized a second § 2255 motion for Mr. Brooks to challenge his § 924(c) convictions under Davis. After Mr. Brooks filed his motion, the district court dismissed it and denied a certificate of appealability (COA). In so doing, it applied our holding in United States v. Melgar-Cabrera, 892 F.3d 1053, 1060 n.4 (10th Cir. 2018) that “Hobbs Act robbery is a crime of violence under the elements clause of § 924(c)(3).” Because Mr. Brooks’s conviction was a crime of violence under the elements clause of § 924(c)(3), not the residual clause, the district court concluded Davis did not affect its validity. 1 Section 924(c)(3) comprises two parts. Part A defines a “crime of violence” as a felony offense that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3). We refer to part A as the “elements clause.” See United States v. Baker, 49 F.4th 1348, 1351 & n.2 (10th Cir. 2022). Part B defines a “crime of violence” as a felony offense “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. We refer to part B as the “residual clause.” 2 Appellate Case: 20-5115 Document: 010110810029 Date Filed: 02/08/2023 Page: 3 This court granted Mr. Brooks a COA on the following issue: “In light of the contention that Hobbs Act robbery can be accomplished by a threat to property, is Mr. Brooks’s conviction for Hobbs Act robbery considered a ‘crime of violence’ under 18 U.S.C. § 924(c)(3)?” Order at 1 (July 6, 2021). We then abated this appeal, awaiting the decisions subsequently announced in United States v. Taylor, 142 S. Ct. 2015 (2022), and United States v. Baker, 49 F.4th 1348 (10th Cir. 2022). In supplemental briefing, Mr. Brooks concedes that Taylor, which concerned use of a firearm in connection with attempted Hobbs Act robbery, 142 S. Ct. at 2020, does not alter the validity of his convictions for use of a firearm in connection with completed Hobbs Act robbery. Aplt. Suppl. Br. at 1. And in Baker, we confirmed the holding in Melgar-Cabrera that completed Hobbs Act Robbery is categorically a crime of violence under the elements clause of § 924(c)(3). See 49 F.4th at 1356. Mr. Brooks acknowledges that, in light of Taylor and Baker, he “does not have a legal basis for asserting that this Court should not follow the precedent[i]al law in Melgar-Cabrera.” Aplt. Suppl. Br. at 5. We therefore affirm the judgment of the district court. Entered for the Court Per Curiam 3

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