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United States v. King

United States District Court, D. New Mexico

December 1, 2016

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DAVID LOUIS KING, Defendant/Movant. Civ. No. 16-501 MV/KK

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER comes before the Court on Defendant/Movant David Louis King's (“Defendant”) Emergency Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 1) (“Section 2255 Motion”), filed May 26, 2016. Plaintiff/Respondent the United States of America (“the Government”) responded in opposition to the motion on August 8, 2016, and Defendant filed a reply in support of it on August 30, 2016. (Docs. 8, 10.) United States District Judge Martha Vázquez referred this matter to the undersigned for proposed findings and a recommended disposition on June 30, 2016. (Doc. 4.)

         In February of 2004, Defendant pled guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). (Doc. 1 at 2; CR Docs. 56, 57.) The Court determined that Defendant had previously been convicted of three violent felonies, and therefore imposed an enhanced sentence of fifteen years' imprisonment pursuant to the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1). (CR Doc. 83 at 24, 28.) In his Section 2255 Motion, Defendant asks the Court to reduce his sentence because one of the convictions on which the Court relied to enhance it was for New Mexico armed robbery, which, he argues, no longer qualifies as a violent felony under the ACCA in light of the United States Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015) (“Samuel Johnson”). (Docs. 1, 10.) The Government opposes Defendant's motion, arguing that New Mexico armed robbery remains a violent felony under the ACCA despite the Samuel Johnson decision. (Doc. 8.)

         The Court has meticulously reviewed the pleadings and attachments in this civil proceeding and in the underlying criminal case, Cr. No. 02-2092 MV. The Court has also examined the transcript of the sentence proceedings before Judge Vázquez, (CR Doc. 83), as well as the Presentence Investigation Report (“PSR”). (CR Doc. 77; Doc. 9.) Because Defendant's Section 2255 Motion raises purely legal issues, an evidentiary hearing is unnecessary. 28 U.S.C. § 2255(b). Having carefully considered the parties' submissions, the civil and criminal record, and the relevant law, the Court recommends that Defendant's Section 2255 Motion be GRANTED.

         I. Factual Background and Procedural History

         On November 21, 2002, the Government charged Defendant by indictment with two counts of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (CR Doc. 1.) The Court appointed attorney Kenneth Gleria to represent Defendant, who pled not guilty to the charges against him on December 12, 2002. (CR Docs. 5, 7.) On January 30, 2003, the Court released Defendant from custody pending trial. (CR Docs. 16, 17.)

         Defendant pled guilty to Count I of the indictment pursuant to a plea agreement on July 15, 2003. (CR Doc. 31.) However, on August 26, 2003, the Government filed a notice that it intended to seek a minimum sentence of fifteen years' imprisonment pursuant to the ACCA, rather than a maximum sentence of ten years' imprisonment pursuant to 18 U.S.C. § 924(a)(2), as stated in the parties' plea agreement. (CR Doc. 32.) The Government identified three predicate convictions to support this enhanced sentence: a 1986 armed robbery conviction, a 1995 commercial burglary conviction, and a 1995 residential burglary conviction, all under New Mexico law. (Id. at 2; Doc. 9-1 at 10 ¶ 26.) In light of this new information, the Court permitted Defendant to withdraw his guilty plea on September 25, 2003. (CR Doc. 35.) On October 8, 2003, the Government filed a superseding indictment to include charges that Defendant's sentence should be enhanced under the ACCA. (CR Doc. 37.)

         Defendant entered into a new plea agreement, and pled guilty to Count II of the superseding indictment, on February 18, 2004. (CR Docs. 56, 57.) In the new plea agreement, Defendant acknowledged that he faced a minimum sentence of fifteen years' imprisonment under the ACCA. (CR Doc. 56 at 2.) However, on April 21, 2004, Defendant filed objections to the PSR, in which he argued that the Court should not enhance his sentence because his prior conviction for commercial burglary was not for a violent felony under the ACCA. (CR Doc. 61.) Rejecting this argument, the Court sentenced Defendant to fifteen years' imprisonment at a hearing on May 26, 2004. (CR Docs. 64, 83.) The Court entered a judgment of conviction against Defendant on the same date, [1] and subsequently dismissed the original indictment and Count I of the superseding indictment. (CR Docs. 65, 67.) On appeal, the Tenth Circuit affirmed the use of Defendant's prior commercial burglary conviction to enhance his sentence. (CR Doc. 73.)

         Defendant has been in federal custody since July of 2004. (Doc. 1 at 3.) He filed the Section 2255 Motion presently before the Court on May 26, 2016, less than one year after the United States Supreme Court struck down a portion of the ACCA in Samuel Johnson, 135 S.Ct. at 2551. (Doc. 1.) The Government responded in opposition to the motion on August 8, 2016, and Defendant filed a reply in support of it on August 30, 2016. (Docs. 8, 10.) In his motion, Defendant asks the Court to reduce his sentence from fifteen years' to no more than ten years' imprisonment, i.e., the maximum sentence he faced without the ACCA enhancement, and order his immediate release from federal custody because he has already been imprisoned for more than ten years. (Doc. 1 at 1.) In support of this request, Defendant argues that the enhancement of his sentence was improper, because: (1) the Court necessarily relied on the ACCA's “residual clause” to find that his prior armed robbery conviction was for a violent felony under the Act; and, (2) the Samuel Johnson decision struck down the residual clause as unconstitutionally vague. (Id. at 4-5; Doc. 10 at 1-3.)

         In its response in opposition to Defendant's motion, the Government acknowledges that the Court likely relied on the ACCA's residual clause to find that Defendant's prior armed robbery conviction was for a violent felony, and that this clause is now invalid. (Doc. 8 at 1-2.) However, the Government contends that the enhancement of Defendant's sentence was nevertheless proper because New Mexico armed robbery still qualifies as a violent felony under the ACCA's “force clause, ” which Samuel Johnson left intact. (Id. at 2-3.) Defendant's Section 2255 Motion is now before the undersigned for proposed findings and a recommended disposition.

         II. Analysis

         The ACCA provides that a person who violates 18 U.S.C. § 922(g) and has three prior convictions for a “violent felony” or “serious drug offense” is subject to a minimum term of fifteen years' imprisonment. 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felony” to mean

any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). Subpart (i) of this definition is known as the “force clause” or “elements clause”; the non-italicized portion of subpart (ii) is known as the “enumerated clause”; and, the italicized portion of subpart (ii) is known as the “residual clause.” Samuel Johnson, 135 S.Ct. at 2556; United States v. Fritts, ___ F.3d ___, 2016 WL 6599553, at *1 (11th Cir. Nov. 8, 2016); United States v. Gardner, 823 F.3d 793, 801-02 (4th Cir. 2016); United States v. Priddy, 808 F.3d 676, 683 (6th Cir. 2015). In Samuel Johnson, the Supreme Court ruled that the ACCA's residual clause is unconstitutionally vague, but left its force and enumerated clauses intact.[2] 135 S.Ct. at 2557, 2563.

         In determining whether an offense is a violent felony under the ACCA, courts must generally apply the “categorical approach, ” considering only the offense's statutory elements, and not the actual facts underlying the defendant's prior conviction. United States v. Duncan, 833 F.3d 751, 754 (7th Cir. 2016); Gardner, 823 F.3d at 802; United States v. Smith, 652 F.3d 1244, 1246 (10th Cir. 2011). Courts must presume that a prior conviction “rested upon nothing more than the least of the acts criminalized” by the state statute. Moncrieffe v. Holder, ___ U.S.___, 133 S.Ct. 1678, 1684 (2013) (internal quotation marks and citations omitted).

To satisfy this categorical approach, it is not necessary that every conceivable factual offense covered by a statute fall within the ACCA. Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, qualifies under the ACCA as a violent felony.

Smith, 652 F.3d at 1246 (citation omitted); see Duncan, 833 F.3d at 757 (“[I]n applying the categorical approach, we are concerned with the ordinary case, not fringe possibilities.”) (internal quotation marks and citation omitted). To identify the least culpable conduct a state statute criminalizes in the ordinary case, federal courts look to how the state's courts have interpreted the statute. Johnson v. United States, 559 U.S. 133, 138 (2010) (“Curtis Johnson”); United States v. Seabrooks, 839 F.3d 1326, 1347 (11th Cir. 2016) (Martin, J., concurring).

         When a statute includes alternative elements that create distinct versions of a crime, courts may employ the “modified categorical approach.” Gardner, 823 F.3d at 802; United States v. Hood, 774 F.3d 638, 645 (10th Cir. 2014); see Mathis v. United States, ___U.S. ___, 136 S.Ct. 2243, 2249 (2016) (“[T]his Court approved the ‘modified categorical approach' for use with statutes having multiple alternative elements.”). When using the modified categorical approach, “a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Mathis, 136 S.Ct. at 2449; Hood, 774 F.3d at 645. However, the modified categorical approach does not apply to statutes “that enumerate[] various factual means of committing a single element.” Mathis, 136 S.Ct. at 2249, 2253-54.

The New Mexico statute at issue in this case provides as follows:
Robbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.
Whoever commits robbery is guilty of a third degree felony.
Whoever commits robbery while armed with a deadly weapon is, for the first offense, guilty of a second degree felony and, for second and subsequent offenses, is guilty of a first degree felony.

N.M. Stat. Ann. § 30-16-2.

This statutory language shows that armed robbery is not a distinct offense from robbery; the offense is robbery whether or not armed, and whether or not one is an accessory. ‘Armed robbery' is a way to commit ‘robbery' and, if done in that way, the penalty is greater but the basic offense remains robbery.[3]

New Mexico v. Roque, 1977-NMCA-94, ¶ 8, 91 N.M. 7, 569 P.2d 417. Thus, to determine whether Defendant's armed robbery conviction is a violent felony under the ACCA, the Court must analyze the elements of robbery, plus the additional element of commission of the offense “while ...


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