United States District Court, D. New Mexico
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 ...