United States District Court, D. New Mexico
December 6, 2016
UNITED STATES OF AMERICA, Plaintiff,
GILBERT CONTRERAS, Defendant.
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR United States Magistrate Judge
MATTER is before me on Defendant Gilbert Contreras's
Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255
[CR Doc. 34; CV Doc. 1], filed June 24, 2016. The government
responded on October 11, 2016. [CR Doc. 43; CV Doc. 8]. Mr.
Contreras replied on November 4, 2016. [CR Doc. 46; CV Doc.
11]. The Honorable Robert C. Brack, United States District
Judge, referred this matter to me for analysis and a
recommended disposition. [CR Doc. 36; CV Doc. 2]. Having
considered the briefing, the relevant portions of the
underlying criminal record, the relevant authorities, and
being otherwise fully advised in the premises, I find that
Mr. Contreras's underlying conviction for violating NMSA
1978 § 30-16-2 qualifies as a crime of violence under
the “force clause” of U.S. Sentencing Guidelines
Manual (“Guidelines”) § 4B1.2(a). I further
find that his underlying conviction qualifies as an
enumerated offense in the commentary accompanying §
4B1.2(a). Because I find that Mr. Contreras was not sentenced
under the “residual clause” of § 4B1.2(a), I
need not address his arguments regarding that clause. His
motion should be denied.
to his Presentence Report (“PSR”), on October 18,
2012, Mr. Contreras was charged with one count of being a
felon in possession of a firearm and ammunition, 18 U.S.C.
§§ 922(g)(1), 924(e). PSR at 4. On November 30,
2012, he pleaded guilty to the offense. Id. United
States Probation and Pretrial Services submitted his PSR to
the Court on February 14, 2013; the PSR was revised on March
15, 2013, and again on July 22, 2013. Id. at 1;
Second Addendum to the PSR at 1-2. The PSR provided that,
pursuant to Guidelines § 2K2.1(a) (the provision that
sets out the sentencing guideline for § 922(g)(1)
offenses), Mr. Contreras had a base offense level of 20
because he had “sustain[ed] at least one felony
conviction of either a crime of violence or a controlled
substance.” Id. at 7-8. The PSR indicated that
Mr. Contreras's prior robbery conviction, NMSA 1978,
§ 30-16-2, met “the federal definition of crime of
violence, ” as set out in § 4B1.2(a) of the
Guidelines. Id. After an upward adjustment based on
the specific characteristics of his offense and a downward
adjustment for acceptance of responsibility, Mr.
Contreras's total offense level was 21, with a criminal
history category of IV.Id. at 8, 23. He thus faced
77-96 months under the Guidelines. Id. at 23. Mr.
Contreras's guideline range was further adjusted downward
to 51-70 months under § 5G1.3(b), because he had an
undischarged term of imprisonment for a conviction in state
court stemming from the same incident for which he was
convicted in federal court in the instant case. Second
Addendum to the PSR at 1.
23, 2013, Judge Brack sentenced Mr. Contreras to 51 months.
[CR Doc. 30] at 2; [CR Doc. 31] at 2. Mr. Contreras did not file a
direct appeal of his conviction or sentence. The instant case
is his first motion under § 2255.
under § 2255 and Johnson v. United States
to 28 U.S.C. § 2255(a), a “prisoner in
custody” pursuant to a federal conviction may
“move the court” “to vacate, set aside or
correct the sentence” if it “was imposed in
violation of the Constitution or laws of the United
Johnson v. United States, 135 S.Ct. 2551, 2557
(2015), the Supreme Court held that the so-called
“residual clause” of the definition of
“violent felony” in the Armed Career Criminal Act
(“ACCA”) was unconstitutionally vague. The ACCA
defined “violent felony” as follows:
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). The closing
words of this definition, italicized above, have come to be
known as the “residual clause.”
Court explained that the residual clause left “grave
uncertainty” about “deciding what kind of conduct
the ‘ordinary case' of a crime involves.”
Id. That is, the residual clause “denie[d]
fair notice to defendants and invite[d] arbitrary enforcement
by judges” because it “tie[d] the judicial
assessment of risk to a judicially imagined ‘ordinary
case' of a crime, not to real-world facts or statutory
elements.” Id. Second, ACCA's residual
clause left “uncertainty about how much risk it takes
for a crime to qualify as a violent felony.”
Id. at 2558. By combining these two indeterminate
inquiries, the Court held, “the residual clause
produces more unpredictability and arbitrariness than the Due
Process Clause tolerates.” Id. On that ground
it held the residual clause void for vagueness. Id.
thereafter, the Court determined that the ruling in Johnson
was substantive (as opposed to procedural) and, therefore,
had “retroactive effect in cases on collateral
review.” Welch v. United States, 136 S.Ct.
1257, 1268 (2016). Accordingly, Welch opened the door for
individuals sentenced under the residual clause of the
ACCA's violent-felony definition to move to vacate their
sentences as unconstitutional under § 2255.
Contreras, however, was not sentenced under the ACCA, nor
does he claim that he was. Instead, he was sentenced under
§ 2K2.1 of the Sentencing Guidelines, which provides for
a sentencing enhancement where the defendant has a prior
felony conviction for a “crime of violence” as
that term is defined in § 4B1.2(a) of the Guidelines.
Like the ACCA, the definition of “crime of
violence” under § 4B1.2(a) of the Guidelines
includes a residual clause.
(a) The term “crime of violence” means any
offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that -
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, 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
§ 4B1.2(a) (2012) (emphasis added). The closing words
of this definition, italicized above, have come to be known
as the “residual clause” of the career offender
guideline's definition of crime of violence.
Contreras argues that because the residual clause in the
Guidelines definition of crime of violence mirrors the
residual clause in the ACCA's definition of violent
felony, the Supreme Court's holding in Johnson (i.e.,
that the ACCA's residual clause is unconstitutionally
vague) should apply equally to the residual clause in §
4B1.2(a). In other words, Mr. Contreras asks the Court to
extend Johnson beyond the ACCA to the
Guidelines. There is some support for his position.
United States v. Madrid, 805 F.3d 1204, 1210 (10th
Cir. 2015), the Tenth Circuit Court of Appeals applied
Johnson outside of the context of the ACCA to invalidate the
residual clause of the career offender guideline. However,
Madrid was not a collateral attack on a sentence; it was a
direct appeal. This distinction matters because, in order to
rely on Madrid for the instant motion under § 2255, Mr.
Contreras must show that the rule in Madrid is retroactive.
There is no Welch corollary expressly holding that Madrid is
or is not retroactive, and the parties dispute whether Madrid
should apply retroactively. Compare [Doc. 1] at 3, and [Doc.
11] at 1- 6, with [Doc. 8] at 2-11.
issues-whether Johnson should be extended to the career
offender guideline and, if so, whether such ruling should
apply retroactively-are currently before the Supreme Court in
Beckles v. United States (S.Ct. No. 15-8544). Here,
the United States moved to stay Mr. Contreras's §
2255 motion pending the Court's ruling in Beckles. [Doc.
3]. Mr. Contreras opposed the stay because he expects to be
released before Beckles is decided. [Doc. 4] at 2. He
contends that a stay will prejudice him because, if this
Court is persuaded by his motion and resentences him, he will
likely be eligible for immediate release. See Id.
The United States filed no reply in support of its motion to
stay. It did not dispute that a stay would prejudice Mr.
Contreras. Therefore, on September 21, 2016, I denied the
motion to stay. [Doc. 6].
Contreras's conviction for New Mexico robbery
qualifies as a crime of violence under the force
clause of § 4B1.2 and as enumerated in
the commentary accompanying § 4B1.2
Contreras's sentence was enhanced under the Guidelines
based on a prior conviction under the New Mexico robbery
statute, NMSA 1978, § 30-16-2. PSR at 7-8. His total
offense level-and thus the guideline range under which he was
sentenced-was calculated according to § 2K2.1 based on a
finding that his prior robbery conviction qualified as a
“crime of violence, ” as that term is defined in
§ 4B1.2 of the Guidelines. Id.
Contreras argues that his robbery conviction could have
qualified as a crime of violence only under the residual
clause of § 4B1.2(a). [Doc. 1] at 4. He argues that the
Court should find the residual clause unconstitutionally
vague, extending the logic of Johnson to his case, and order
that he be resentenced.
United States argues that Johnson is not retroactively
applicable in Guidelines cases on collateral review. [Doc. 8]
at 2. The government further argues that, even if the holding
in Johnson were to be extended to Guidelines cases on
collateral review, Mr. Contreras still would not be entitled
to resentencing because his prior conviction for robbery
qualifies as a crime of violence under § 4B1.2 even
absent the unconstitutionally vague residual clause.
Id. at 11. In the main, the government, relying on a
recent opinion by the Honorable James O. Browning, United
States District Judge, argues that Mr. Contreras's
robbery conviction qualifies as a crime of violence because
robbery is one of the offenses enumerated in the commentary
accompanying § 4B1.2. Id. The United States
argues, in other words, that Mr. Contreras should not be
resentenced because he was not sentenced under the residual
clause in the first place.
with the United States. I find that Mr. Contreras's prior
robbery conviction qualifies as a crime of violence both
under the “force clause” of § 4B1.2(a)(1),
and based on the inclusion of robbery as an enumerated
offense in the commentary to § 4B1.2.
Contreras's conviction for New Mexico robbery qualifies
as a crime of violence under the force clause of §
Contreras's conviction under § 30-16-2 “has as
an element the use, attempted use, or threatened use of
physical force against the person of another”;
therefore, it qualifies as a crime of violence pursuant to
§ 4B1.2(a)(1) of the Guidelines.
so-called “force clause” of § 4B1.2 provides
that an underlying conviction is a crime of violence where it
“has as an element the use, attempted use, or
threatened use of physical force against the person of
another.” § 4B1.2(a)(1). Interpretations of the
definition and scope of the terms used in the definition of
crime of violence are questions of federal law. See
United States v. Rivera-Oros, 590 F.3d 1123, 1126
(10th Cir. 2009). In determining whether a statute of
conviction qualifies as a violent felony, courts apply the
“categorical approach.” United States v.
Ramon Silva, 608 F.3d 663, 669 (10th Cir. 2010). That
is, courts look only to “the fact of conviction and the
statutory definition of the prior offense, and do not
generally consider the particular facts disclosed by the
record of conviction.” Id. (internal quotation
2010, the Supreme Court interpreted the force clause in the
definition of “violent felony” under the ACCA.
Johnson v. United States (C. Johnson), 559 U.S. 133,
138-40 (2010). The Supreme Court concluded that the term
“physical force, ” as employed in the force
clause of the definition of violent felony under the ACCA,
“means violent force-that is, force capable of causing
physical pain or injury to another person.”
Id. at 140 (emphasis in original). The Court
rejected the government's argument that a conviction
under Florida's battery law, where the Florida Supreme
Court had interpreted the statute's
“‘actually and intentionally touching'”
element to encompass “any intentional physical contact,
‘no matter how slight, '” satisfied the force
clause in the ACCA's definition of violent felony.
Id. at 138 (emphasis in original) (quoting State
v. Hearns, 961 So.2d 211, 218 (Fla. 2007)). A force
element that can be satisfied by “[t]he most
‘nominal contact, '” the Court held, is
broader than the “physical force” requirement in
the force clause of the ACCA. Id. at 138, 140-41
(quoting Hearns, 961 So.2d at 219).
Tenth Circuit has extended this interpretation of the
“physical force” requirement in the force clause
to the definition of crime of violence in § 4B1.2 of the
Guidelines. United States v. Mitchell, 653
F.App'x 639, 644 (10th Cir. 2016). The Tenth Circuit has
“‘consistently applied the same
analysis'” to analogous provisions of the ACCA and
the Guidelines where the provisions contain
“‘virtually identical'” language. See
Id. at 642 (quoting Madrid, 805 F.3d at
1210). Thus, both ACCA and Guidelines cases are authoritative
in interpreting the “physical force” requirement.
See Id. The Tenth Circuit has applied the C. Johnson
standard in determining whether a given state law contains a
force element sufficient to satisfy the “physical
force” requirement. Relying on C. Johnson, the Tenth
Circuit held that the Oklahoma battery law, whose
“‘force of violence'” element may be
satisfied by “‘only the slightest touching,
'” does not qualify under the force clause.
United States v. Smith, 652 F.3d 1244, 1247 (10th
Cir. 2011) (quoting Steele v. State, 778 P.2d 929,
931 (Okla. Crim. App. 1989)). On the other hand, the Tenth
Circuit also concluded that a conviction under New
Mexico's “apprehension causing” aggravated
assault statute-which requires for conviction proof of
“threaten[ing] or engag[ing] in menacing conduct with a
deadly weapon toward a victim, causing the victim to believe
he or she was about to be in danger of receiving an immediate
battery”-qualified as a violent felony under the force
clause. Ramon Silva, 608 F.3d at 670-71 (internal quotation
marks omitted). The court held that the New Mexico statute
contemplated sufficient force to qualify as a violent felony
under the ACCA in part because, even though it did not
require actual physical contact or violence against the
victim, the conduct that it criminalized “‘could
always lead to . . . substantial and violent contact, and
thus it would always include as an element' the
threatened use of violent force.” Id. at 672
(quoting United States v. Treto-Martinez, 421 F.3d
1156, 1160 (10th Cir.2005)). Further, the conduct
“‘could at least put the victim on notice of the
possibility that the weapon will be used more harshly in the
future, thereby constituting a threatened use of
force.'” Id. (quoting United States v.
Dominguez, 479 F.3d 345, 349 (5th Cir. 2007)); see also
Mitchell, 653 F.App'x at 645 (holding that an Oklahoma
law criminalizing the “intentional attempt or threat to
commit violence on another . . . with a weapon capable of
causing great bodily harm” satisfies the force clause
and is a qualifying crime of violence).
Contreras was convicted under New Mexico's robbery
statute. The statute provides:
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
NMSA 1978, § 30-16-2. The parties agree that Mr.
Contreras was convicted of third degree robbery. See [Doc. 1]
at 5; [Doc. 8] at 12.
§ 30-16-2, as that clause has been interpreted by New
Mexico courts, with the force clause of § 4B1.2(a), as
that clause has been interpreted by the Supreme Court and the
Tenth Circuit, I find that the “force or
violence” requirement of the New Mexico robbery statute
satisfies the “physical force” requirement of the
Guidelines' force clause. Therefore, I find that the New
Mexico robbery statute qualifies as a crime of violence.
Mexico robbery statute contains a force element: it requires
that the theft be committed “by use or threatened use
of force or violence.” § 30-16-2. Indeed,
“[t]he use of force, violence, or intimidation is an
essential element of robbery.” State v. Lewis,
1993-NMCA-165, ¶ 8, 116 N.M. 849, 851. Further, the New
Mexico statute requires that the force be exercised against
the person of another. State v. Bernal,
2006-NMSC-050, ¶ 28, 140 N.M. 644, 651 (“Robbery
is not merely a property crime, but a crime against a
Contreras does not suggest that the New Mexico robbery
statute lacks an element requiring the use of force against
the person of another; rather, he contends that the degree of
force required for a person to be convicted under the robbery
statute is broader than the degree of force required to
satisfy the “physical force” requirement of
§ 4B1.2(a)(1). Mr. Contreras asserts that, to commit
robbery in New Mexico, a person “need only use or
threaten to use minimal force.” [Doc. 1] at 5. He
largely hangs his argument on language from New Mexico case
law stating that “‘[t]he amount or degree of
force is not the determinative factor'” or is
“‘immaterial.'” Id. at 6
(quoting State v. Martinez, 1973-NMCA-120, ¶ 4,
85 N.M. 468, 469; UJI 14-1620 NMRA, Committee Commentary). He
further notes, “[t]he force just has to be enough to
overcome the ‘resistance of attachment.'”
Id. (quoting State v. Curley,
1997-NMCA-038, ¶ 10, 123 N.M. 295, 297).
initial matter, the language on which Mr. Contreras relies
refers to the requirement that the force or violence be
employed in the act of taking away the property. “The
use or threatened use of force . . . . ‘must be the
lever by which the thing of value is separated' from the
victim.” Martinez, 1973-NMCA-120, ¶ 4 (quoting
State v. Baca, 1971-NMCA-142, ¶ 5, 83 N.M. 184,
184). In Martinez, for example, the court did not need to
consider the force employed during a fight between the
defendant and victim that followed the theft in question
because “the ripping of the [victim's] jacket
pocket in grabbing the money, and knocking the victim against
the railing, was a showing of sufficient use of force to
sustain the conviction.” Id. ¶ 5. It is
not that the court did not consider the degree of force used
by the defendant; rather, in stating that the degree of force
was not the “determinative factor, ” the court
meant that it must evaluate when the force or violence was
deployed by the defendant. Id. ¶¶ 4-5; see
also Lewis, 1993-NMCA-165, ¶ 12 (the defendant's use
of a weapon to “hold [the] victim at bay as he
escaped” was not sufficient to satisfy the force
requirement of the New Mexico robbery statute because the
money itself had been “removed and separated from his
person by stealth”).
the point, contrary to Mr. Contreras's assertions, the
New Mexico robbery statute requires an evaluation of whether
the degree of force employed in the commission of the theft
satisfied the force element of the statute. See State v.
Clokey, 1976-NMSC-035, ¶ 3, 89 N.M. 453, 453
(“The question of whether or not the snatching of the
purse from the victim was accompanied by sufficient force to
constitute robbery is a factual determination, within the
province of the jury's discretion.”). The New
Mexico Court of Appeals has made clear that de minimis force
does not suffice to sustain a robbery conviction: “when
no more force is used than would be necessary to remove
property from a person who does not resist, then the offense
is larceny, and not robbery.” Curley, 1997-NMCA-038,
¶ 6. Theft constitutes robbery only where it is
accomplished using “force necessary to overcome any
resistance.” Id. ¶ 18. The Curley court
concluded, therefore, that the defendant was entitled to the
lesser included offense of larceny because a jury could have
found that he took a purse by surprise from a victim who was
not resisting. Id.
force requirement of New Mexico robbery rests on the
principle that robbery is not merely a property crime, it is
a crime against a person. This distinguishes it from larceny.
Id. ¶ 11. Courts should construe the
“‘resistance of attachment'”
requirement “in light of the idea that robbery is an
offense against the person, and something about that offense
should reflect the increased danger to the person that
robbery involves over the offense of larceny.”
Id. In determining whether the force requirement of
robbery has been satisfied, courts should not focus
exclusively on the “[s]ubtle differences in the amount
of force used.” Id. ¶ 13. The
“reason for the distinction” between robbery and
larceny-and the increased punishment-“is the increased
danger to the person.” Id. Therefore,
“an increase in force that makes the victim aware that
her body is resisting could lead to the dangers that the
crime of robbery was designed to alleviate.”
Id. In other words, the force used to commit a
robbery is that which puts the victim on notice of the theft
and creates the possibility of a dangerous and violent
Supreme Court of New Mexico has corroborated this view of the
force element of robbery. See State v. Bernal,
2006-NMSC-050, ¶¶ 27-28, 140 N.M. 644, 651. As the
Court in Bernal found, “robbery is a crime designed to
punish the use of violence” and “to protect
citizens from violence.” Id. (holding that the
Double Jeopardy Clause is not offended by allowing, for a
single act, separate charges for each victim “against
whom violence or the threat of violence is separately
used”). The rationale behind the force element of New
Mexico robbery tracks that identified by the Tenth Circuit in
defining a “violent felony” in Ramon Silva-the
prohibited conduct constitutes a violent felony because it
“could always lead to . . . substantial and violent
contact.” 608 F.3d at 672.
Contreras cites to several cases to support his position that
the New Mexico robbery statute requires only a minimal degree
of force to be completed, but they are unpersuasive. He cites
to Curley for the proposition that snatching an article of
clothing, such as a pin, with just the amount of force
required to remove it constitutes robbery; he subsequently
cites the same case as holding that shoving a victim's
shoulder suffices for robbery. [Doc. 1] at 6-7 (citing
Curley, 1997-NMCA-038). The thrust of the holding in Curley
is described supra; in finding that the defendant was
entitled to an instruction on larceny, the court held that
the force requirement hinged on the degree of force required
to overcome resistance. 1997-NMCA-038, ¶ 18. Further,
the court in Curley explicitly stated that applying only the
force necessary to remove the item does not satisfy the force
requirement of New Mexico robbery. Id. ¶ 6.
Contreras also cites a number of cases for the proposition
that a pickpocket's “jostling” of a victim in
order to divert the victim's attention constitutes the
force necessary to commit robbery. [Doc. 1] at 6-7. In fact,
jostling a victim to divert his or her attention runs
contrary to the definition of robbery that New Mexico courts
set out in Curley and Bernal. As those cases make clear, the
distinguishing feature of robbery under New Mexico law-as
opposed to mere larceny-is the use of force necessary to
overcome any resistance; where there is no possibility of
resistance (as in pickpocket cases), there is no
robbery. See Curley, 1997-NMCA-038, ¶ 18.
Furthermore, neither of the New Mexico cases Mr. Contreras
cites to support this point involved mere
“jostling” to divert the victim's attention.
In State v. Martinez, the defendant ripped the
victim's pocket and knocked the victim against a railing.
1973-NMCA-120, ¶ 5. And in State v. Segura, the
defendant grabbed the victim's bag and, while the victim
held on to the bag as they engaged in an altercation, the
victim lost her balance and fell to the ground.
1970-NMCA-066, ¶¶ 2-3, 81 N.M. 673, 673. While the
court noted in Segura that “evidence of jostling or
causing the victim to fall” may constitute sufficient
force for robbery, it did so in the context of a case in
which the victim resisted and a physical confrontation
the other New Mexico cases Mr. Contreras cites also
demonstrate force or violence used in the defendants'
confrontations with the victims. See [Doc. 1] at 7; State
v. Verdugo, 2007-NMCA-095, ¶ 26, 142 N.M. 267, 275
(holding, in a single sentence without further analysis,
sufficient evidence of force existed where the defendant
attempted to grab the victim's purse from around her arm
and the victim “struggled to retain control”
until the purse strap broke); State v. Pitts,
1985-NMCA-045, ¶ 16, 102 N.M. 747, 749 (the defendant
grabbed the victim and locked her into a cell).
it predates the Supreme Court's decision in C. Johnson,
the Tenth Circuit has also concluded that the New Mexico
robbery statute is a “violent felony” under the
ACCA.United States v. Lujan, 9 F.3d
890, 891-92 (10th Cir. 1993). Two recent decisions in this
District have come to similar conclusions. Relying heavily on
the Tenth Circuit's decision in Lujan, Judge Browning
held that New Mexico's robbery statute constitutes a
crime of violence under § 4B1.2. United States v.
Barela, No. 15-3550, 2016 WL 5395275, at *3 (D.N.M.
Sept. 16, 2016). Additionally, the Honorable M. Christina
Armijo, Chief United States District Judge, recently held
that New Mexico robbery qualifies as a predicate conviction
under the force clause of 18 U.S.C. § 3559(c)(2)(F)(ii);
that provision sets out the definition of “serious
violent felony.” United States v. Contreras,
[Doc. 3] at 5 in 16-cv-0703 MCA/CG (D.N.M. July 14, 2016). In
arriving at her decision, Chief Judge Armijo noted that
“[t]he New Mexico appellate courts have consistently
stated that the use or threatened use of force is an
essential element of the offense of robbery.”
Contreras cites to a number of cases outside this circuit
holding that various state statutes, which he alleges are
similar to the New Mexico robbery statute, do not meet the
“physical force” requirement of §
4B1.2(a)(1). [Doc. 1] at 8-9. Again, I am not persuaded.
Nearly all the cases to which Mr. Contreras cites evaluate a
state law, the force element of which is satisfied by the use
of de minimis force. Id. (citing United States
v. Castro-Vazquez, 802 F.3d 28, 37-38 (1st Cir. 2015)
(robbery statute requires only “the slightest use of
force”); United States v. Dominguez-Maroyoqui,
748 F.3d 918 (9th Cir. 2014) (prior assault conviction did
not qualify as a crime of violence under the force clause
where conviction of assault could be obtained when the
defendant “use[d] any force whatsoever against a
federal officer”) (emphasis in original); United
States v. Hollins, 514 F.App'x 264, 267-68 (3d Cir.
2013) (Pennsylvania robbery statute was satisfied by
“any amount of force applied to a person while
committing a theft”) (internal quotation marks
omitted); In re Sealed Case, 548 F.3d 1085, 1090 (D.C. Cir.
2008) (robbery statute could be satisfied by using “the
minimal level of force necessary to obtain property by sudden
or stealthy seizure or snatching”) (internal quotation
marks omitted); United States v. Moncrieffe, 2016 WL
913391, at *16-19 (E.D.N.Y. Mar. 10, 2016) (New York robbery
statute under which “any amount of force”
satisfies the force element); United States v. Bell,
2016 WL 344749, at *9-10 (N.D. Cal. Jan. 28, 2016) (robbery
statute required only as much force as required to snatch an
item from the victim or the victim's clothes); United
States v. Litzy, 2015 WL 5895199, at *4-5 (S.D. W.Va.
Oct. 8, 2015) (force element of state statute could be
satisfied “by a mere uninvited touch”)).
Contreras does cite to two circuits that have held that state
statutes requiring comparable or more force than is required
in the New Mexico robbery statute do not satisfy the
“physical force” standard. [Doc. 1] at 9 (citing
United States v. Bilal, 610 F.App'x 569, 569-70
(6th Cir. 2015) (assessing Ohio aggravated attempted robbery
statute); United States v. Montes-Flores, 736 F.3d
357, 368-39 (4th Cir. 2013) (assessing South Carolina assault
and battery of a high and aggravated nature); United
States v. Carmichael, 408 F.App'x 769, 770 (4th Cir.
2011) (assessing North Carolina common law robbery)). As to
the Ohio aggravated attempted robbery statute, however, as
discussed supra, the Tenth Circuit has already reached a
contrary opinion with respect to a similar statute. Ramon
Silva, 608 F.3d at 670-71 (New Mexico's
“apprehension causing” aggravated assault statute
contemplated sufficient force to qualify as a violent felony
under the ACCA, even though it did not require actual
physical contact or violence against the victim).
Furthermore, that decision is unpublished, and, in any event,
this Court is not bound by decisions from the Sixth or Fourth
the Tenth Circuit case law on this issue, the recent
decisions in this District, and my own analysis, I am not
persuaded by Mr. Contreras's argument that the New Mexico
robbery statute can be satisfied by a degree of force less
than the “physical force” requirement of §
4B1.2(a)(1). I find that New Mexico robbery qualifies as a
crime of violence under the force clause of that provision.
Contreras's conviction also qualifies as an enumerated
crime of violence under the commentary to §
government argues that Mr. Contreras's prior conviction
for robbery under § 30-16-2 qualifies as a crime of
violence independent of the residual clause, because robbery
is among the offenses enumerated in the Guidelines'
commentary. [Doc. 8] at 12-14. The government largely bases
its argument on Judge Browning's opinion in Barela, which
itself relied on the Tenth Circuit's opinion in Madrid,
805 F.3d 1204, to reach the same conclusion. [Doc. 8] at 12-
14. Drawing on Barela and Madrid, the government asserts that
the commentary accompanying § 4B1.2 enumerates several
crimes that constitute “crimes of violence” and
that the commentary “is authoritative” because it
is not inconsistent with the guideline. Id. at 13-14
(internal quotation marks omitted). The government further
argues that New Mexico's robbery statute adheres to the
generic definition of robbery. Id. Therefore, it
concludes, New Mexico robbery is a qualifying crime of
violence under the Guidelines. Id. at 14.
Contreras challenges this interpretation. While acknowledging
that robbery is listed in the commentary to § 4B1.2, Mr.
Contreras contends that the offenses enumerated in the
commentary do not provide independent bases on which an
underlying offense can qualify as a crime of violence;
rather, Mr. Contreras argues, the commentary is authoritative
only “if it interprets a guideline's text and is
not inconsistent with that text.” [Doc. 1] at 14; [Doc.
11] at 9. Mr. Contreras asserts that the additional offenses
enumerated in the commentary could only be interpreting the
now-unconstitutional residual clause. [Doc. 1] at 12. He
contends that the Tenth Circuit did not actually decide in
Madrid whether the enumerated crimes in the commentary may
provide independent bases on which a crime could qualify as a
“crime of violence, ” and he argues that Barela
erroneously relied on Madrid for this proposition. [Doc. 11]
commentary accompanying § 4B1.2 states the following:
“For purposes of this guideline- . . . . ‘Crime
of violence' includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses, robbery, arson,
extortion, extortionate extension of credit, and burglary of
a dwelling.” § 4B1.2 cmt., n.1 (emphasis added).
As both parties acknowledge, Guidelines commentary
“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.” Stinson v.
United States, 508 U.S. 36, 38 (1993).
Madrid, the Tenth Circuit considered whether the
defendant's prior conviction for statutory rape qualified
as a crime of violence under the Guidelines. 805 F.3d at
1206. The court instructed that the prior offense would
qualify as a crime of violence if: “(1) it ‘has
as an element the use, attempted use, or threatened use of
physical force against the person of another'; [or] (2)
it is one of the offenses enumerated in the Guidelines or
accompanying commentary as a crime of violence.”
Id. at 1207 (quoting § 4B1.2(a)). The court
first concluded that the statute of conviction did not fall
under the force clause. Id. at 1207-08. It then
analyzed whether the underlying statutory rape law qualified
under one of the crimes enumerated in the commentary to
§ 4B1.2, “forcible sex offenses.”
Id. at 1208. The court ultimately concluded that the
Texas law encompasses non-forcible acts and thus is broader
than the enumerated offense. Id. at 1208-09. The
court went on to conclude that the underlying offense could
not qualify under the residual clause because that clause was
unconstitutionally vague, following from Johnson.
Id. at 1210.
other words, the Tenth Circuit in Madrid embarked on an
analysis as to whether an underlying conviction matched the
generic definition of an offense enumerated in the
Guidelines' commentary. Mr. Contreras urges that the
court in Madrid never actually decided whether the commentary
could provide an independent basis for a prior conviction to
qualify as a crime of violence because it concluded that the
statute of conviction was not substantially similar to the
enumerated offense. [Doc. 11] at 8-9. True, the Tenth Circuit
did not ultimately conclude that the Texas law was a
qualifying prior offense; still, it set out a rule
specifically acknowledging the offenses enumerated in the
commentary and conducted a robust analysis- the same analysis
that courts deploy in comparing an underlying statute against
the offenses enumerated in § 4B1.2(a)(2)-in making its
determination. 805 F.3d at 1208-09. The court gave no
indication that a further level of analysis would be
required. It noted simply that “[b]ecause the statute
under which Madrid was convicted does not necessarily require
force or coercion, we hold that Madrid's conviction does
not qualify as a forcible sex offense.” Id. at
1210. The only logical conclusion to be drawn from the Madrid
court's analysis is the one Judge Browning drew in
Barela: underlying convictions may qualify as crimes of
violence based on the crimes enumerated in the commentary to
Contreras also contends that in United States v.
Armijo, 651 F.3d 1226 (10th Cir. 2011), a case decided
before Madrid, the Tenth Circuit came to a contrary decision
regarding the impact of the commentary. [Doc. 11] at 9-10. In
that case, the court held that the crime of manslaughter,
enumerated in the Guidelines commentary, does not encompass
versions of manslaughter that have a mens rea of
recklessness-offenses under § 4B1.2 instead “only
reach purposeful or intentional behavior.” Armijo,
651 F.3d at 1236. The court's decision in Armijo,
however, only affirms the rule set out by the Supreme Court
in Stinson-commentary is not valid if it is inconsistent with
the guideline. See 508 U.S. at 38.
is an offense enumerated in the commentary to the Guidelines.
The New Mexico robbery statute qualifies as an enumerated
crime of violence if its elements align with the generic
definition of robbery-if they are the same as, or narrower
than, those of the generic offense. See Mathis v. United
States, 136 S.Ct. 2243, 2247 (2016). Generic robbery is
defined as the “trespassory taking and carrying away of
the personal property of another with the intent to steal it,
where that property is taken from the person or presence of
the other, and the taking is accomplished by means of force
or putting in fear.” Barela, 2016 WL 5395275, at *2.
The government asserts that New Mexico robbery adheres to the
generic, common-law definition of robbery. [Doc. 8] at 13.
Mr. Contreras does not dispute this assertion, and so I find
that he waives any objection to it. I find that New Mexico
robbery qualifies as the enumerated offense of robbery in the
commentary accompanying § 4B1.2. Nor is there a
realistic probability that the New Mexico courts would
interpret robbery in a manner that would sever this
correspondence in the future. New Mexico's robbery
statute, NMSA 1978, § 30-16-2, qualifies as an
enumerated crime of violence under the Guidelines'
commentary. Accordingly, I find that Mr. Contreras's
sentence was enhanced under the Guidelines' commentary
and not the residual clause.
THEREFORE RECOMMENDED that Defendant Contreras's Motion
to Correct Sentence Pursuant to 28 U.S.C. § 2255 [CR
Doc. 34; CV Doc. 1] be DENIED and that case No 16-cv-0671
RB/SMV be DISMISSED with prejudice
PARTIES ARE FURTHER NOTIFIED THAT WITHIN FOURTEEN DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended
Disposition, they may file written objections with the Clerk
of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any written objections with the Clerk of
the District Court within the fourteen-day period if that
party wants to have appellate review of the proposed findings
and recommended disposition. See D.N.M.LR-Civ. 10.1. If no
objections are filed, no appellate review will be allowed.
 The PSR indicates in one instance that
Mr. Contreras had a criminal history category of VI. PSR at
16. Subsequently, in setting out the sentencing guideline
range, the PSR states his criminal history category as IV.
Id. at 23.
 The Amended Judgment, filed July 25,
2013 [CR Doc. 31], did not alter the sentence
 Neither Mr. Contreras nor the
government explicitly states which edition of the Guidelines
they rely on. The PSR states that the 2012 edition of the
Guidelines was used to determine Mr. Contreras's offense
level. PSR at 7. Therefore, I rely on the 2012
 Mr. Contreras did not raise this issue
on direct appeal. Generally, claims that were not raised on
direct appeal are procedurally defaulted and cannot be raised
in a § 2255 motion unless the defendant can show cause
excusing his procedural default and actual prejudice
resulting from the errors of which he complains, or can show
that a fundamental miscarriage of justice will occur if his
claim is not addressed. United States v. Warner, 23
F.3d 287, 291 (10th Cir. 1994). However, the government did
not raise procedural default as a defense, and I decline to
address it sua sponte. See Hines v. United States,
971 F.2d 506, 509 (10th Cir. 1992) (holding that, in a §
2255 motion, the district court may raise procedural default
sua sponte); but see Gray v. Netherland, 518 U.S.
152, 165- 66 (1996) (commenting that, in a § 2254
petition, procedural default is waived if not raised by the
 At certain points in his motion, Mr.
Contreras refers, confusingly, to two separate prior
convictions. He refers to prior convictions for
“robbery in violation of NMSA 1978, § 30-3-2(A),
and § 30-16-02” as well as “aggravated
assault.” [Doc. 1] at 4, 15. Section 30-16-2 is the New
Mexico robbery statute. Section 30-3-2 is the New Mexico
aggravated assault statute. The PSR refers to a single
qualifying prior felony, robbery under § 30-16-2, and it
does not list aggravated assault as one of Mr.
Contreras's prior convictions. PSR at 7-8, 9-15.
Additionally, Mr. Contreras's substantive analysis
considers only the prior robbery conviction, and the
government makes no reference to aggravated assault.
Therefore, I consider in my analysis only the underlying
 In his reply, Mr. Contreras states
that, in another case, the government conceded that New
Mexico robbery does not qualify under the force clause of the
definition of “crime of violence.” [Doc. 11] at
6. Mr. Contreras further asserts that, in this case, the
government “does not argue” that New Mexico
robbery qualifies under the force clause. Id.
Therefore, Mr. Contreras contends, the government “has
conceded” this argument. Id. at 6. Mr.
Contreras, however, cites no authority for the proposition
that a party who takes a certain position on a legal issue in
one case subsequently is bound to maintain that position in
all future cases in which that issue arises, in perpetuity.
Further, while the government does devote its analysis to an
alternate line of argument, it does not abandon the force
clause argument altogether. See [Doc. 8] at 13
(“‘[T]he Tenth Circuit has already concluded that
New Mexico's robbery statute constitutes a crime of
violence under § 4B1.2(a)(1).'” (quoting
United States v. Barela, No. 15-3550, 2016 WL
5395275, at *3 (D.N.M. Sept. 16, 2016) (alterations in
original))). Therefore, I conduct my own analysis into
whether New Mexico robbery is a qualifying crime of violence
under the force clause of the Guidelines.
 Mr. Contreras also cites to
non-binding authority on this point. See [Doc. 1] at 6-7. The
cases cited run counter to New Mexico law on this point, and
I find them unpersuasive.
 Mr. Contreras contends that Lujan does
not control the outcome here. [Doc. 1] at 10-12. I do not
rest my analysis on Lujan.