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United States v. Baker

United States District Court, D. New Mexico

December 15, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
VERNON LEE BAKER, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendant's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Doc. 1.[1] Defendant seeks to have his conviction and sentence set aside pursuant to the Supreme Court's decision in Johnson v. United States, which struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutionally vague under the Fifth Amendment Due Process Clause. 135 S.Ct. 2551 (2015). See generally doc 1. Having reviewed the pleadings and record before the Court, I recommend denying the Motion.

         I. Background

         Defendant was convicted by a jury 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) on April 21, 2011. Cr. docs. 30, 116. Ordinarily, this crime carries a maximum term of imprisonment of ten years. However, the ACCA provides that a defendant convicted of being a felon in possession of a firearm faces an enhanced sentence where he has three or more previous convictions for a “violent felony.” Id. at § 924(e)(2)(B). Specifically, defendants with three prior convictions which satisfy the ACCA are subject to a maximum sentence of life imprisonment and a minimum of fifteen years imprisonment. See Logan v. United States, 552 U.S. 23, 27 (2007). At the time of Defendant's sentencing, the ACCA defined “violent felony” as 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, 1 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 italicized portion is known as “the residual clause” of the ACCA, which the Supreme Court struck down as unconstitutional under the void-for-vagueness doctrine in its Johnson decision. See 135 S.Ct. at 2557-61.[2]

         After modifications to the presentence report (PSR) based upon Defendant's objections, [3] the Court concluded that Defendant had at least three prior “violent felony” convictions. See cr. docs. 127, 130; see also PSR ¶¶ 28, 87. Consequently, he qualified for the increased statutory punishment under the ACCA and the sentencing guideline enhancement under U.S.S.G. § 4B1.4(b). With a minimum required sentence of 180 months and a guideline range of 235-293 months, Defendant was sentenced to 235 months of imprisonment and three years of supervised release. Cr. doc. 130.

         Defendant's past convictions that were classified in the PSR as “violent felonies” justifying his designation as an armed career criminal include: (1) Robbery While Armed with a Deadly Weapon (1st Judicial District Court, Santa Fe, New Mexico, case number CR-1977-00179); (2) Armed Robbery with a firearm enhancement (2nd Judicial District Court, Albuquerque, New Mexico, case number D-202-CR-7932613); and (3) Aggravated Battery, Deadly Weapon (2nd Judicial District Court, Albuquerque, New Mexico, case number D-202-CR-00004168).[4] PSR ¶ 28. The PSR also reflects a conviction for Aggravated Assault Against a Household Member (Deadly Weapon), which contributed three criminal history points under U.S.S.G. §4A1.1(a). PSR ¶ 39. At the time of sentencing, Defendant did not dispute any of the PSR findings. Cr. doc. 130.

         II. Legal Standard

         Whether the underlying criminal convictions of Defendant's ACCA enhancement qualify as “violent felonies” depends on whether they satisfy the definition of “violent felony” under the remaining clauses of the ACCA, now that the residual clause has been struck down as unconstitutional. See 18 U.S.C. § 924(e)(2)(B). In making its determination, the Court should consider the offense “generically, that is to say, . . . in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. U.S., 553 U.S. 137, 141 (2008). This “categorical approach” requires the Court to “consult only the fact of conviction and the statutory definition of the prior offense, and [] not generally consider the particular facts disclosed by the record of conviction.” United States v. Ramon Silva, 608 F.3d 663, 669 (10th Cir. 2010) (internal quotations omitted); see also Mathis v. United States, 136 S.Ct. 2243, 2248 (2016).

         The Supreme Court explained in Johnson v. United States, 559 U.S. 133, 140 (2010)[5]that the term “physical force” as used in the ACCA “means violent force-that is, force capable of causing physical pain or injury to another person.” (Emphasis in original.) Nonetheless, the force required to satisfy that element need not be sufficient to cause serious injury-it “might consist . . . of only that degree of force necessary to inflict pain-a slap in the face, for example.” Id. at 1272. Therefore, in evaluating whether Defendant's past convictions under New Mexico law constitute violent felonies under the ACCA, the Court must first consider whether each state statute that he violated necessarily proscribes conduct that “has as an element the use, attempted use, or threatened use of” violent force against the person of another. If so, it is categorically a “violent felony” under the force clause of the ACCA.

         If, however, the statutory definition of any of Defendant's prior offenses is broader than the ACCAʹs definition of “violent felony” and the prior offense is “divisible, ” the Court will then apply what is known as a “modified-categorical approach.” Ramon Silva, 608 F.3d at 669; see also Mathis, 136 S.Ct. at 2249, 2256. Under this approach, the Court should consult “charging documents and documents of conviction to determine whether the defendant in a particular case was convicted of an offense that qualifies as a violent felony.” Id. Any three such felonies may validly underlie the application of the ACCA enhancement. 18 U.S.C. § 924(e)(2)(B)(i).

         III. Analysis

         Defendant challenges his sentence on the basis that, after Johnson II, his past criminal convictions identified in the PSR as predicate offenses compelling the ACCA enhancement no longer qualify as “violent felonies” under the remaining clauses of the ACCA. Doc. 1 at 8-16. He argues that he therefore does not qualify as an armed career criminal and is entitled to be resentenced without the ACCA enhancement. Id. at 16. Each of Defendant's predicate criminal convictions for his armed career criminal designation will be addressed in turn to determine whether the ACCA enhancement was properly applied in light of Johnson II.

         As a preliminary matter, Defendant's past convictions clearly do not qualify under the clause enumerating the specific felonies of “burglary, arson, or extortion, ” or those “involv[ing] use of explosives.” Id. at (e)(2)(B)(ii); see also PSR ¶ 28. Therefore, the only question before the Court is whether at least three of Defendant's past convictions qualify as violent felonies under the “force clause”-that is, whether each conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another[.]” Id. at (e)(2)(B)(i).

         i. Robbery While Armed with a Deadly Weapon

         Defendant does not dispute that he was convicted of Robbery While Armed with a Deadly Weapon pursuant to N.M.S.A. § 40A-16-2 (1953), later recodified as N.M.S.A. § 30-16-2 (1978). Doc. 7 at 4 n.4; doc. 1 at 12. That statute sets forth the elements of the crime 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 ...

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