                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   January 4, 2017
                   UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellant,

 v.                                                      No. 15-1497
                                                           D. Colo.
 PAUL CHARLES CRUMP,                          (D.C. No. 1:15-CR-00123-WJM-1)

              Defendant - Appellee.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, EBEL and BACHARACH, Circuit Judges.


      The question presented in this appeal is whether a conviction for robbery

under Colorado law, Colo. Rev. Stat. § 18-4-301(1), is a “crime of violence” for

purposes of the United States Sentencing Guidelines, USSG § 4B1.2(a) (2015).

We concluded in United States v. Harris, No. 16-1237 (10th Cir. Dec. __, 2016),

that because robbery in Colorado has as an element the use or threatened use of

physical force against another person, it qualifies as a “violent felony” under the

Armed Career Criminal Act’s (ACCA) elements clause. See 18 U.S.C.


      *
         This order and judgment is not binding precedent except under the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.
§ 924(e)(2)(B)(i). Like the ACCA, the sentencing guidelines include an identical

elements clause in defining crimes of violence. See USSG § 4B1.2(a)(1).

Applying the same reasoning outlined in Harris, we conclude Crump’s Colorado

robbery conviction qualifies as a crime of violence under § 4B1.2(a)(1).

      Crump pleaded guilty to possessing a firearm in violation of 18 U.S.C.

§ 922(g)(1). Probation calculated Crump’s base offense level as 24 under USSG

§ 2K2.1, believing he had two or more convictions for either a crime of violence

or a controlled substance offense. One of the offenses probation relied on was a

2009 Colorado robbery conviction. Crump objected to the characterization of his

robbery conviction as a “crime of violence.” But probation rejected Crump’s

argument, opining that his robbery conviction qualified because robbery was

enumerated as a crime of violence in the application notes to § 4B1.2. See §

4B1.2, Application Note 1 (2015) (“‘Crimes of violence’ includes murder,

manslaughter, kidnaping, aggravated assault, forcible sex offenses, robbery,

arson, extortion, extortionate extension of credit, and burglary of a dwelling.”

(emphasis added)). The district court, however, sustained Crump’s objection in

an oral ruling, finding: (1) that the application note enumerating robbery as a

crime of violence was not authoritative because it is inconsistent with the text of

the guideline; and (2) that robbery in Colorado did not satisfy the elements clause

in § 4B1.2(a)(1) because robbery does not necessarily require the use or

threatened use of physical force. R. 108.

                                         -2-
      For the same reasons detailed in Harris, we disagree with the district

court’s finding that robbery in Colorado does not require the use or threatened use

of physical force against another person. As we explained in Harris,

             [W]hether by force, or by threats or intimidation, we
             conclude that robbery in Colorado has as an element the
             use or threatened use of physical force against another
             person. The Colorado Supreme Court has emphasized that
             robbery requires a violent taking consistent with the
             common law, which comports with the definition of
             physical force provided by the Supreme Court in Johnson
             [v. United States, 559 U.S. 133 (2010)].

Harris, slip op. at __.

      Therefore, we reverse the district court’s finding that Crump’s robbery

conviction is not a crime of violence under § 4B1.2(a)(1) and remand for

resentencing. 1

                                      ENTERED FOR THE COURT

                                      Timothy M. Tymkovich
                                      Chief Judge




      1
         Because we conclude Crump’s robbery conviction qualifies as a crime of
violence under the elements clause in § 4B1.2(a)(1), we do not reach the
government’s alternative argument that robbery qualifies because it was
enumerated as a crime of violence in § 4B1.2’s application notes. We note the
sentencing commission recently amended the Guidelines to address this question
going forward by moving robbery from the enumeration in the application notes
to the text of § 4B1.2(a)(2). See 81 Fed. Reg. 4741, 4742 (2016).


                                        -3-
United States v. Crump, No. 15-1497

EBEL, J., dissenting.


       I conclude, contrary to the majority, that a Colorado robbery conviction is not

categorically a “crime of violence” under U.S.S.G. § 4B1.2(a).

I. A Colorado robbery conviction does not necessarily require proof of the use,
attempted use, or threatened use of physical force capable of causing physical pain
or injury to another person

       Under Colorado law, “[a] person who knowingly takes anything of value from the

person or presence of another by the use of force, threats, or intimidation commits

robbery.” Colo. Rev. Stat. § 18-4-301(1) (emphasis added). A conviction for robbery

committed by means of threats or intimidation does not necessarily require proof of “the

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

U.S.S.G. § 4B1.2(a)(1) (emphasis added), where “physical force” is defined as “force

capable of causing physical pain or injury to another person,” Johnson v. United States,

559 U.S. 133, 140 (2010).

       The Colorado Supreme Court, in interpreting the State’s robbery statute, defines

“intimidation” as “unlawful coercion; duress; putting in fear,” as well as “to make fearful,

frightened, compel action or inaction (as by threats).” People v. Jenkins, 599 P.2d 912,

913 (Colo. 1979) (internal quotation marks, alteration omitted). Although the Colorado

Supreme Court decided Jenkins before its decision in People v. Borghesi, 66 P.3d 93

(2003), Borghesi, in noting “that the gravamen of the offense of robbery is the violent

nature of the taking,” cited to Jenkins approvingly. Borghesi, 66 P.3d at 100-01. Further,
in addressing another statute criminalizing theft by threat, the Colorado Supreme Court

stated that a “threat” “is defined as a Declaration of purpose or intention to work injury to

the person, property, or rights of another by the commission of an unlawful act. Black’s

Law Dictionary (4th rev. ed. 1968).” Schott v. People, 482 P.2d 101, 102 (Colo. 1971)

(emphasis added).

       The Colorado Supreme Court’s definitions of “intimidation” or “threat” do not

necessarily require proof of the use or threatened use of physical force sufficient to cause

physical pain or injury to another person. There are a variety of other ways that a robbery

victim could be threatened or intimidated into parting with his property besides the

robber’s use or threatened use of such physical force.

       There is, then, a “realistic probability,” Moncrieffe v. Holder, 133 S. Ct. 1678,

1685 (2013) (internal quotation marks omitted), that Colorado would prosecute a

defendant for robbery committed by means of intimidation or threat without requiring

proof of the use or threatened use of physical force capable of causing physical pain or

injury against the person of another. In this regard, I agree with the district court’s

decision in this case and, therefore, conclude that a Colorado robbery conviction is not

categorically a “crime of violence” for purposes of U.S.S.G. § 4A1.2(a)(1). See also

United States v. Estes, Nos. 16-cv-01137-WYD, 05-cr-00187-WYD, Order at 7-9 (D.

Colo. Sept. 15, 2016).




                                              2
II. U.S.S.G. § 4B1.2’s application note 1 does not make a Colorado robbery
conviction categorically a “crime of violence”

       The Government posits an alternative reason why Crump’s Colorado robbery

conviction should categorically be deemed a “crime of violence” under U.S.S.G.

§ 4B1.2(a). The Government contends that, even if a Colorado robbery conviction does

not have “as an element the use, attempted use, or threatened use of physical force

against the person of another,” id. § 4B1.2(a)(1), application note 1 to that guideline

includes “robbery” in a list of enumerated “crimes of violence.”1 The majority did not

need to address this alternative argument. But I would reject it.

       Application notes cannot be applied in a manner inconsistent with the text of a

guideline. See United States v. Armijo, 651 F.3d 1226, 1236-37 & 1236 n.12 (10th Cir.

2011); see also Stinson v. United States, 508 U.S. 36, 38 (1993) (“[C]ommentary in the

Guidelines Manual that interprets or explains a guideline is authoritative unless it violates

the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading

of, that guideline.”). Because I conclude that a Colorado robbery conviction does not

categorically qualify as a “crime of violence” under the text of the § 4B1.2, I would not

apply § 4B1.2’s application note to contradict that determination. See Armijo, 651 F.3d

at 1233-35; see also United States v. Bell, —F.3d—, 2016 WL 6311084, at *3-*4 (8th

Cir. Oct. 28, 2016) (following United States v. Rollins, 836 F.3d 737, 741-43 (7th Cir.


1
 After Crump’s sentencing, the Sentencing Commission revised this guideline, effective
August 2016, to list robbery as a “crime of violence” in the text of the guideline. See
U.S.S.G. § 4B1.2(a)(2) (2016). But that later version of § 4B1.2 does not apply to
Crump. See U.S.S.G. § 1B1.11(a). No one argues to the contrary.

                                              3
2016), and United States v. Soto-Rivera, 811 F.3d 53, 58-60 (1st Cir. 2016), holding that

§ 4B1.2’s application note 1 could not qualify a state robbery conviction as a “crime of

violence” when that conviction did not meet the definition of “crime of violence” found

in the text of the guideline).2

III. Conclusion

       For the foregoing reasons, I conclude, contrary to the majority, that a Colorado

robbery conviction is not categorically a “crime of violence” under U.S.S.G. § 4B1.2(a).




2
 In its arguments on appeal, the Government refers to both U.S.S.G. § 4B1.2’s
application note 1 and § 2K2.1’s application note 1. Neither application note can
contradict my conclusion that Colorado robbery does not meet the definition of a “crime
of violence” as defined in the text of § 4B1.2(a). For that reason, I need not further
consider the nuances of the meaning of “robbery” as used or referred to in these
application notes.

                                            4
