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United States v. Contreras

United States District Court, D. New Mexico

December 6, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
GILBERT CONTRERAS, Defendant.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          STEPHAN M. VIDMAR United States Magistrate Judge

         THIS 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.

         Background

         According 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.[1]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.

         On July 23, 2013, Judge Brack sentenced Mr. Contreras to 51 months. [CR Doc. 30] at 2; [CR Doc. 31] at 2.[2] Mr. Contreras did not file a direct appeal of his conviction or sentence. The instant case is his first motion under § 2255.

         Motions under § 2255 and Johnson v. United States

         Pursuant 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 States.”

         In 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.”

         The 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.

         Soon 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.

         Mr. 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 another.

§ 4B1.2(a) (2012) (emphasis added).[3] 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.

         Mr. 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.[4] There is some support for his position.

         In 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 ยง 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 ...


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