George R. Sotelo v. United States of America

In the
United States Court of Appeals
For the Seventh Circuit
No. 16-4144
GEORGE R. SOTELO,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 16-CV-375 — Robert L. Miller, Jr., Judge.
ARGUED NOVEMBER 2, 2018 — DECIDED MAY 2, 2019
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. In 1995, George R. Sotelo was
convicted of three counts of mailing extortionate communica-
tions, 18 U.S.C. § 876(b), and three counts of mailing threaten-
ing communications, 18 U.S.C. § 876(c) 1. After concluding that
1 At the time of Sotelo’s conviction, subsections (b) and (c) of 18 U.S.C.
§ 876 were ¶ 2 and ¶ 3, respectively, but the statute is unchanged in all
(continued...)

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2 No. 16-4144
Sotelo was a career offender under U.S.S.G. § 4B1.1, which
increases the punishment for a “crime of violence” committed
after the defendant has two prior qualifying convictions, the
district court sentenced him to a term of 262 months’ imprison-
ment. Sotelo neither appealed his sentence nor filed a collateral
attack under 28 U.S.C. § 2255 within the one-year limitations
period set forth in § 2255(f). But in 2016, he filed a § 2255
motion after the Supreme Court in Johnson v. United States,
135 S. Ct. 2551 (2015), invalidated as unconstitutionally vague
a portion of the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e)(2)(B)(ii), containing the same language as a
portion of § 4B1.2 of the Guidelines (defining “crime of
violence” in § 4B1.1). Although the government argued that
Sotelo’s challenge did not fit within the exception in
§ 2255(f)(3) for motions filed outside of the one-year limitations
period and was therefore untimely, the district court denied
Sotelo’s motion on the merits. As explained below, we affirm
the district court’s denial of Sotelo’s motion, not on the merits,
but because Johnson does not open the door to Sotelo’s claim
under § 2255(f)(3).
I.
Sotelo committed the crimes at issue here while imprisoned
on other charges. In 1995, a jury convicted Sotelo of three
counts of mailing communications with the intent to extort
money and three counts of mailing threatening communica-
tions, in violation of 18 U.S.C. § 876(b) and (c). His convictions
stemmed from threatening letters he sent while imprisoned for
the rape of one elderly woman and the robbery of another. He
1 (...continued)
other respects.

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No. 16-4144 3
sent the letters to two separate women, unrelated to his
original crime, who he began corresponding with while in
prison. Although his initial correspondence with both women
was friendly, he ultimately threatened their lives as well as, in
the case of one of the women, the lives of her daughter and
granddaughters if they did not continue sending him money.
The district court sentenced Sotelo using the November 1,
1994 Sentencing Guidelines Manual. Although violations of
§ 876(b) are punishable by up to 20 years’ imprisonment and
violations of § 876(c) are punishable by up to five years, all
counts were grouped under the Guidelines to produce a single
sentencing range. Before the career offender adjustment, Sotelo
faced a sentencing range of 77–96 months’ imprisonment. The
sentencing range with the career-offender adjustment, how-
ever, was 210–262 months’ imprisonment.
An individual qualified as a career offender under § 4B1.1
of the 1994 Guidelines Manual if he had two prior qualifying
convictions (Sotelo concedes he did), and the offense of
conviction was a felony that was a crime of violence. The now-
familiar definition of “crime of violence” appearing in the 1994
version of U.S.S.G. § 4B1.2(a) covers any conviction that
“(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another” (known as
the elements clause), or “(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury
to another” (known respectively as the enumerated offenses
and the residual clause). Moreover, the guideline commentary
explains that aiding and abetting, conspiring, or attempting to
commit a crime of violence satisfies the criteria for a crime of

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4 No. 16-4144
violence, U.S.S.G. § 4B1.2 cmt. n.1, and that extortion is a crime
of violence, id. cmt. n.2.
The district court sentenced Sotelo to the top of the 262-
month career-offender range, noting that Sotelo qualified as a
career offender because each of the offenses had as an element
the threatened use of physical force against another. On
appeal, Sotelo did not challenge his sentence as a career
offender.
He filed his § 2255 motion in 2016, within a year of the
Supreme Court’s decision in Johnson v. United States, 135 S. Ct.
2551 (2015), invalidating the residual clause of the Armed
Career Criminal Act, 18 U.S.C. 924(e)(2)(B)(ii), and “made
retroactively applicable to cases on collateral review,” in Welch
v. United States, 136 S. Ct. 1257 (2016). See 28 U.S.C. § 2255(f)(3)
(one-year period runs from date Supreme Court recognizes
new right retroactively applicable on collateral review).
Although the government argued that Sotelo’s challenge was
untimely, the district court considered his motion on the merits
and denied it.
The court rejected Sotelo’s contention that the “threat to
kidnap” or “threat to injure” found in § 876(b) and (c) consti-
tuted a single indivisible element that would not categorically
qualify as a crime of violence under the elements clause of
§ 4B1.2(a)(1). Instead, the court reaffirmed this court’s earlier
holding in United States v. Sullivan, 75 F.3d 297 (7th Cir. 1996),
that a § 876 violation is a “crime of violence.” The court
concluded that nothing about the Supreme Court’s decision in
Johnson or subsequent cases interpreting it called into question
Sullivan’s conclusion.

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No. 16-4144 5
We granted Sotelo’s request for a certificate of appealability
and directed the parties to address whether Sotelo erroneously
received an increased sentence as a career offender under the
Guidelines, see U.S.S.G. § 4B1.1, based on the sentencing court’s
conclusion that § 876(b) and (c) convictions for mailing threats
are crimes of violence. We also directed the parties to address
whether Sotelo’s claim was procedurally defaulted and
whether an § 876(b) conviction could be considered “extortion”
under U.S.S.G. § 4B1.2(a)(2)’s enumerated list of crimes of
violence.
II.
On appeal, the government renews its contention that
Sotelo’s § 2255 motion is untimely. Although Sotelo’s brief
opens with his arguments on the merits, we begin with the
issue of timeliness, bearing in mind that we should avoid
“pass[ing] upon a constitutional question” if we can “first
resolve procedural issues” that “would end the case.” Slack v.
McDaniel, 529 U.S. 473, 485 (2000) (internal citation omitted).
Although clearly filed outside the one-year limitation period,
see 28 U.S.C. § 2255(f), Sotelo maintains his motion fits within
the exception in 28 U.S.C. § 2255(f)(3) for motions filed within
one year of “the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.”
Sotelo’s claim arises in the wake of a series of significant
sentencing changes that have occurred since his 1995 convic-
tion. First, the Supreme Court in United States v. Booker held
that the federal sentencing guidelines were advisory rather

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6 No. 16-4144
than mandatory, 543 U.S. 220 (2005). Then in Johnson2 the Court
invalidated as unconstitutionally vague the residual clause of
the ACCA, which, in language identical to that found in
U.S.S.G. § 4B1.2, defined a “violent felony” as a crime with
conduct presenting “a serious potential risk of physical injury
to another.” Compare 18 U.S.C. § 924(e)(2)(B) (2012) (defining
“violent felony”) with U.S.S.G. § 4B1.2(1) (1994 ed.) (defining
“crime of violence”). In Welch v. United States, 136 S. Ct. 1257
(2016), the Court declared Johnson retroactively applicable to
cases on collateral review.
These developments, however, did not invalidate sentences
imposed under the identically worded residual clause in
§ 4B1.2. Instead, the Court in Beckles v. United States, 137 S. Ct.
886 (2017), concluded that the post-Booker advisory guidelines
were not subject to Fifth Amendment due process challenges.
Beckles, however, did not resolve the question whether § 4B1.1
of the mandatory pre-Booker guidelines was unconstitutional in
the wake of Johnson. Although the applicability of Johnson to
the mandatory guidelines was an open question when Sotelo
filed his opening brief, that question has now been resolved by
Cross v. United States, 892 F.3d 288 (7th Cir. 2018).
In Cross, a panel of this court concluded that unlike the
advisory sentencing guidelines, the pre-Booker mandatory
guidelines are subject to attack on vagueness grounds, id. at
2 Two Supreme Court cases named “Johnson v. United States” are relevant
to Sotelo’s appeal. Samuel Johnson v. United States, 135 S. Ct. 2551 (2015), has
been declared retroactively applicable on collateral review and is the one
cited throughout this opinion as simply Johnson. We will refer to the other
case, Curtis Johnson v. United States, 559 U.S. 133, 140 (2010), which deals
with the amount of force necessary for a crime to be a “violent felony”
under the ACCA, as Curtis Johnson.

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No. 16-4144 7
306. Accord Moore v. United States, 871 F.3d 72, 81 (1st Cir. 2017)
(Johnson’s rationale invalidating ACCA’s residual clause may
apply to fixed, pre-Booker mandatory guidelines); but see
Raybon v. United States, 867 F.3d 625, 629–31 (6th Cir. 2017)
(concluding that Johnson’s rationale does not apply to the pre-
Booker mandatory guidelines); United States v. Brown, 868 F.3d
297, 301–03 (4th Cir. 2017) (Johnson only explicitly applies to the
ACCA, and thus neither recognizes a new right not to be
sentenced under the residual clause of U.S.S.G. § 4B1.2 of the
mandatory sentencing guidelines nor restarts the one-year
limitations period under § 2255 to make such a claim). Specifi-
cally, we concluded that Beckles’ holding that Johnson did not
apply to the post-Booker advisory guidelines did not control
because the guidelines before Booker, like the ACCA, pre-
scribed fixed terms of imprisonment. Cross, 892 F.3d at 294.
And given the nearly identical language in § 924(e)(2)(B)(ii)
and U.S.S.G. § 4B1.2(a)(2), the panel in Cross concluded that the
mandatory residual guideline clause implicated the same twin
concerns identified in Johnson as invalidating the ACCA’s
residual clause: (1) uncertainty about how to estimate the risk
posed by the generic crime, and (2) uncertainty about how
much risk is required for a crime to qualify as a “violent
felony.” Johnson, 135 S. Ct. at 2257–58; Cross, 892 F.3d at 294.
The panel in Cross thus rejected the government’s assertions
that the petitioners’ § 2255 motions were untimely, concluding
instead that Johnson restarted the one-year limitations period
under § 2255(f)(3).
As an initial matter, we reject the government’s suggestion
to reconsider Cross’s holding that Johnson recognized a new
right as to the mandatory sentencing guidelines. See, e.g., Santos
v. United States, 461 F.3d 886, 891 (7th Cir. 2006) (noting the

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8 No. 16-4144
need for “a compelling reason” to overturn circuit precedent).
The government fails to present a “compelling reason” or any
other development such as a decision of a higher court or
statutory change that would warrant revisiting Cross so
quickly. See McClain v. Retail Food Emp’rs Joint Pension Plan, 413
F.3d 582, 586 (7th Cir. 2005) (stare decisis requires court to give
significant weight to recent decisions unless they have been
overruled by a higher court decision or supervening statutory
development); Bethesda Lutheran Homes & Servs., Inc. v. Born,
238 F.3d 853, 858–59 (7th Cir. 2001) (same). Likewise, the
government offers no compelling reason for us to revisit our
conclusion in Cross that petitioners sentenced under the
residual clause of the mandatory sentencing guidelines could
demonstrate the requisite cause and prejudice to excuse
procedural default. See Cross, 892 F.3d at 295–96, rehearing and
rehearing en banc denied 2018.
But Cross is not as helpful for Sotelo as he believes it to be.
Unlike the petitioners in Cross, Sotelo was not sentenced under
the residual clause of § 4B1.2. At sentencing, the district court
repeatedly made clear that Sotelo was being sentenced under
the elements clause found in § 4B1.2(a)(1). Quoting that
subsection, the court explained that the “guidelines define a
crime of violence as a felony that ‘has as an element the …
threatened use of physical force against the person of another
… ‘ and that is true of all of the offenses for which Mr. Sotelo
is being sentenced.” (Emphasis added.) Indeed, the court
continued, “[e]ach of them have the threatening use of physical
force against a person as an element.” (Emphasis added.)
Furthermore, the court noted, “The application note to Section
4B1.2 provides that extortion is a crime of violence.”

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No. 16-4144 9
Given the fact that Sotelo was sentenced under the elements
clause and not the residual clause, the government maintains
that Johnson’s invalidation of the ACCA’s residual clause is
irrelevant to the constitutionality of Sotelo’s sentence. Thus,
argues the government, Johnson does not restart the one-year
limitations period under § 2255(f)(3) because the right it
recognized—the right not to be sentenced under the vague
language of the residual clause—is not the right that Sotelo
asserts.
Quoting Cross, Sotelo maintains that by arguing that his
petition is untimely, the government “improperly reads a
merits analysis into the limitations period.” Cross, 892 F.3d at
293. As Sotelo points out, Cross recognizes that § 2255(f)(3)
does not require the movant to prove at the outset that he will
ultimately succeed on his claim that the newly recognized right
applies to his situation. Cross, 892 F.3d at 294. But Cross also
makes clear that the movant must be “claim[ing] the benefit of
a right that the Supreme Court has recently recognized.” Id. As
noted above, unlike Sotelo, the defendants in Cross had been
sentenced under the very language deemed unconstitutionally
vague in Johnson. As Cross pointed out, the limitations period
in § 2255(f)(3) runs from “the date on which the right asserted
was recognized by the Supreme Court.” Id. (Emphasis in
original.) The panel in Cross explained that the requirements of
§ 2255(f)(3) were satisfied because there, regardless whether
they prevailed, the right asserted by the petitioners was “the
right to be resentenced on the ground that the vague (yet
mandatory) residual clause unconstitutionally fixed the terms
of their imprisonment.” Id. Johnson’s recognition of the right
not to be sentenced “under a rule of law using this vague
language” opened the door for the Cross petitioners, who were

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10 No. 16-4144
in fact sentenced under that same vague language. Id. (Empha-
sis added.)
Not so for Sotelo. As the portions of his sentencing tran-
script quoted above make clear, Sotelo’s sentence was unaf-
fected by the unconstitutionally vague language in the residual
clause of § 4B1.2, because he was sentenced under the elements
clause. See Stanley v. United States, 827 F.3d 562, 564 (7th Cir.
2016) (rejecting § 2255 motion and explaining in context of
ACCA that the “sole holding of Johnson is that the residual
clause is invalid” and that its holding “does not have anything
to do with” the elements clause); see also Douglas v. United
States, 858 F.3d 1069, 1070 (7th Cir. 2017) (noting that Johnson
does not open all sentences under the ACCA to collateral
review and that petitioner’s sentence under elements clause
was unaffected by Johnson); see also Dimott v. United States, 881
F.3d 232, 234 (1st Cir. 2018) (denying as untimely § 2255 claims
predicated on Johnson and noting that “[t]he petitioners have
no Johnson II claims because they have not shown that their
original ACCA sentences were based solely on the residual
clause.”); Massey v. United States, 895 F.3d 248, 253 (2d Cir.
2018) (“We hold that where it is clear from the record that a
movant’s sentence was enhanced pursuant to the ACCA’s
force [or “elements”] clause, their § 2255 claim does not rely on
Johnson II for the purposes of 28 U.S.C. § 2255(h).”). As Stanley
explained, “Johnson does not have anything to do with the
elements clause of either the Guidelines or the Armed Career
Criminal Act, and § 2255(f)(3) therefore does not afford
prisoners a new one-year-period to seek collateral relief on a
theory that the elements clause does not apply to a particular
conviction.” 827 F.3d at 565. Sotelo now suggests that his
career-offender sentence was “driven in part” by the residual

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No. 16-4144 11
clause because § 876(b) also covers attempted extortion, which
is designated as a crime of violence by the application notes
under the residual clause. But this fact is largely irrelevant to
Sotelo’s claim, given the sentencing court’s express finding that
all of Sotelo’s offenses had as an element the threatened use of
physical force against another.
In an attempt to circumvent this fatal flaw in his claim,
Sotelo now seizes on other language in Stanley recognizing a
possible exception to the rule that a sentence under the
elements clause is unaffected by Johnson. Stanley noted that,
[p]erhaps a prisoner could argue that he decided not
to press an argument about the elements clause at
sentencing, or on appeal, when the only conse-
quence would have been to move a conviction from
the elements clause to the residual clause. Then it
would be possible to see some relation between
Johnson and a contention that the conviction has
been misclassified, for the line of argument could
have been pointless before Johnson but dispositive
afterward. But this is not the sort of argument that
Stanley makes.”
827 F.3d at 565.
Pointing to this language, Sotelo now claims that before
Johnson, he could only have filed a “pointless” petition that
would have served merely to move his § 876 conviction from
the elements to the residual clause. But this argument fails on
several levels. First, like the petitioner in Stanley, Sotelo has
never framed his claim this way. In the district court, he never
suggested that he would have challenged the district court’s
classification of § 876 as a crime of violence under the elements

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12 No. 16-4144
clause but for the knowledge that such a challenge would
simply have prompted the sentencing court to reclassify it as
a crime of violence under the residual clause. See Boulb v.
United States, 818 F.3d 334, 341 (7th Cir. 2016) (reiterating that
arguments raised for the first time on appeal are waived.)
Instead, as Sotelo himself explains, his argument in the
district court “rested primarily on Mathis v. United States, 136
S. Ct. 2243 (2016), because he argued that § 876 comprises
different means of committing one offense, as opposed to
elements of different offenses, and those means do not categor-
ically involve the threatened use of force.” (Appellant’s Br. 2.)
In Mathis, the Supreme Court held that under the modified
categorical approach (allowing examination of a limited class
of documents to determine whether a prior conviction under
the ACCA matches the generic version of that offense), an
indivisible statute containing alternative means of committing
the required elements of a given crime does not match the
generic version of that crime if an element of the crime of
conviction in the abstract sweeps more broadly than an
element of the generic offense. 136 S. Ct. at 2251–52. In other
words, if a statute contains multiple ways of committing an
offense (which are not themselves elements required for
conviction), and some of those ways do not necessarily involve
the threatened use of force, the statute is not categorically a
crime of violence.
The essence of Sotelo’s claim for relief, then, is that under
Mathis, a conviction under § 876 is not categorically a crime of
violence, because it is an indivisible statute describing two
means of committing a single crime: mailing a threatening
communication, an action that could be accomplished by either
a threat to injure or a threat to kidnap, neither of which are

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No. 16-4144 13
elements of the offense in Sotelo’s reading. See 18 U.S.C.
§ 876(b) (covering mailing with the intent to extort money “any
communication containing any threat to kidnap any person or
any threat to injure the person of the addressee or of an-
other.”).
But Mathis, which has not been declared retroactive on
collateral attack, cannot itself satisfy § 2255(f)(3)’s requirement
that the right asserted be newly recognized and made retroac-
tively applicable to cases on collateral review. See Holt v. United
States, 843 F.3d 720, 722 (“Mathis has not been declared
retroactive by the Supreme Court[.]”). The same goes for the
other cases on which Sotelo relies to build his argument that
§ 876 is not categorically a crime of violence: Elonis v. United
States, 135 S. Ct. 2001 (2015), holding that a conviction under 18
U.S.C. § 875(c) (forbidding transmitting a threat to injure
another) requires proof that the defendant knows communica-
tion will be viewed as a threat and Curtis Johnson v. United
States, 559 U.S. 133, 140 (2010) (“Curtis Johnson”), concluding
that to satisfy the elements clause of the ACCA a crime must
contemplate the possibility of violent force or force capable of
causing physical pain or injury. The right he asserts is not,
then, the right not to be sentenced under the unconstitutionally
vague residual clause, but rather, the right not to be sentenced
under the elements clause, which he claims no longer applies.
But as explained above, Johnson, which applies only to the
residual clause, does not implicate the question of the validity
of Sotelo’s conviction under the elements clause. That right
hinges on a series of cases post-dating Sotelo’s conviction, none
of which has been declared retroactively applicable on collat-
eral review as required by § 2255(f)(3).

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14 No. 16-4144
So while Sotelo is correct that to satisfy § 2255(f)(3)’s
requirements he need not prove definitively at the outset that
his sentence is unconstitutional in light of a new rule of
constitutional law made retroactive by the Supreme Court,
Johnson does not provide a back-door approach to challenge
any sentence under § 4B1.1 or the ACCA. See Stanley, 827 F.3d
at 564 (“A flurry of filings in the district courts … depends on
a belief that Johnson reopens all questions about the proper
classification of convictions under the Guidelines … [but]
Johnson … does not have anything to do with … the operation
of … the elements clause” of the ACCA or Guidelines); see also
United States v. Peppers, 899 F.3d 211, 221 (3d Cir. 2018). For
instance, the Third Circuit concluded in Peppers that § 2255(h),
which restricts second or successive § 2255 motions on the
same terms as § 2255(f)(3), is satisfied when a movant demon-
strates that “he may have been sentenced under the residual
clause of the ACCA, which was rendered unconstitutional in
Johnson.” Peppers, 899 F.3d at 221 (emphasis added); see also
United States v. Geozos, 870 F.3d 890 (9th Cir. 2017) (“[W]hen it
is unclear whether a sentencing court relied on the residual
clause in finding that a defendant qualified as an armed career
criminal, but it may have, the defendant’s § 2255 claim ‘relies
on’ the constitutional rule announced in [Johnson].”) But as the
statements at Sotelo’s sentencing detailed above make clear,
Sotelo could not satisfy even the liberal standard of demon-
strating that he might have been sentenced under the residual
clause, because it is clear his sentence depended entirely on the
elements clause of § 4B1.2.
It is thus apparent that Sotelo is not in fact asserting a right
based on Johnson. Indeed, he identifies the first issue in his brief
as “[w]hether, in light of Mathis (2016), Johnson (2015), Elonis

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No. 16-4144 15
(2015), and [Curtis] Johnson (2010), the federal offense of
mailing threatening communications, 18 U.S.C. § 876, qualifies
as a crime of violence under section 4B1.2 of the Sentencing
Guidelines?” (Appellant’s Br. iii.) But the only retroactively
applicable case that Sotelo cites—Johnson (2015)—has nothing
to say about whether § 876 is a crime of violence under the
elements clause of § 4B1.2, and that is the only question relevant
to Sotelo’s claim for relief. See Peppers, 899 F.3d at 229 (“Be-
cause only the Supreme Court can declare which new rules of
constitutional law are retroactively applicable to cases on
collateral review in the second or successive habeas motion
context, Mathis, Descamps, and Johnson 2010 cannot provide the
foundation that satisfies the gatekeeping requirements for a
§ 2255(h)(2) motion.”).
There is thus no need to address the more thorny legal
question of whether a movant who satisfies § 2255(f)(3) with a
valid claim under Johnson (or some other case declared
retroactively applicable on collateral review) may advance
arguments based on cases such as Mathis, Elonis, and Curtis
Johnson, which post-date the conviction but have not been
declared retroactively applicable on collateral review. Compare
In re Hires, 825 F.3d 1297, 1302–04 (11th Cir. 2016) (rejecting
defendant’s attempt to rely on Descamps v. United States, 570
U.S. 254 (2013) for a successive § 2255 motion under Johnson);
Holt, 843 at 721–24 (concluding that defendant could not rely
on Johnson for a successive § 2255 motion because claim turned
on post-sentencing decisions such as Mathis) with In re Adams,
825 F.3d 1283, 1285–86 (11th Cir. 2016 (allowing defendant to
rely on Descamps to prove claim under Johnson because
Descamps “is not an independent claim that is itself subject to
the gatekeeping requirements”) and Peppers, 899 F.3d at 229–30

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16 No. 16-4144
(when defendant’s claim satisfies § 2255(h)’s gatekeeping
requirements with a Johnson claim, other cases post-dating
sentencing such as Mathis, Descamps, and Curtis Johnson may be
used to analyze pre-sentencing law).
Accordingly, we leave for another day the issue of whether
Mathis calls into question this court’s holding in Sullivan that
§ 876 is categorically a crime of violence. 75 F.3d at 300. We
note, however, that every court to consider the issue, both
before and after Johnson, has concluded that a § 876 conviction
entails a threat to use physical force, and is thus categorically
a crime of violence. See United States v. Chapman, 866 F.3d 129,
131–36 (3d Cir. 2017); United States v. Spangle, 617 Fed. Appx.
764, 765 (9th Cir. September 8, 2015) (unpublished order);
United States v. Stoker, 706 F.3d 643, 648 & n.4 (5th Cir. 2013)
(per curiam) (collecting cases); United States v. Haileselassie, 668
F.3d 1033, 1034–35 (8th Cir. 2012); United States v. De La Fuente,
353 F.3d 766, 770–71 & n.3 (9th Cir. 2003); see also Tompkins v.
United States, 2018 WL 1911805, at *5–10 (N.D. Ill. 2018)
(holding that § 876(b) is divisible and that a conviction under
“threat to injure” prong is a crime of violence). So although we
reject Sotelo’s motion as untimely, we note that it is not likely
to have fared well on the merits either.
III.
Because Sotelo’s § 2255 motion is untimely as described
above, we AFFIRM the district court’s decision denying the
motion.

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