Whether the Tenth Circuit's analysis, which relies on facts rather than elements, abrogates the Supreme Court's holdings that the categorical approach focus on the elements, as defined by state law, to determine what a prior conviction actually established

Questions Presented For Review 1. The “categorical approach” determines whether a prior conviction qualifies as a violent felony under the Armed Career Criminal Act (ACCA). The relevant question is whether the offense of conviction has as an element the use, attempted use, or threatened use of violent physical force. The facts of the offense are irrelevant. New Mexico juries are instructed the level of force used in robbery is immaterial. Juries must decide only if the force directly related to separating the property from the person. The Tenth Circuit admits this is the law in New Mexico. However, in analyzing whether robbery is a violent felony, it set state law and the categorical approach aside and scrutinized facts in a select few of its own published cases. From the facts, it derived a minimal level of force that it declared categorically has been, and will be, found in every New Mexico robbery. Although no jury has ever considered a minimum level of force, the circuit court decided the minimum it had devised equals “physical force” as defined by this Court. Does the Tenth Circuit’s analysis, which relies on facts rather than elements, abrogate this Court’s holdings that the categorical approach focus on the elements, as defined by state law, to determine what a prior conviction actually established? 2. New Mexico courts have held the state’s aggravated assault statute does not have a mens rea element with respect to the victim. Does a criminal offense that can be committed without any mens rea qualify as a violent felony under the ACCA? i 3. Does New Mexico aggravated battery qualify as a violent felony under the ACCA when it requires only an unlawful touch and may result in an injury that was unintended? il