United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
KHALSA UNITED STATES MAGISTRATE JUDGE.
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.)
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.)
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.
Factual Background and Procedural History
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,
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.)
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,  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.)
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.)
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
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. 135 S.Ct. at 2557, 2563.
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
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.,
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
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
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.
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