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United States v. Hurtado

United States District Court, D. New Mexico

January 10, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
BENNY HURTADO, Defendant-Petitioner.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION (“PFRD”)

          HON. GREGORY J. FOURATT, UNITED STATES MAGISTRATE JUDGE

         This matter is before me on Petitioner's Motion to Correct the Sentence Pursuant to 28 U.S.C. § 2255. Doc. 1[1]. Having reviewed all of the primary (Docs. 1, 4, 6) and supplemental briefing (Docs. 8, 15), and otherwise being fully advised, I recommend the Motion be denied.[2]

         I. Background

         On December 19, 2006, Petitioner was charged by criminal complaint with robbing the Bank of America branch at 3101 Carlisle Boulevard NE, in Albuquerque, in violation of 18 U.S.C. § 2113(a). Cr. Doc. 1. On January 9, 2007, a federal grand jury returned a one-count indictment charging him with the same offense. Cr. Doc. 10. On March 22, 2007, Petitioner pleaded guilty to the indictment pursuant to a written plea agreement. Cr. Docs. 20, 22.

         In the plea agreement, Petitioner acknowledged that the maximum sentence for his offense included “imprisonment for a period of not more than 20 (twenty) years” and that the U.S. Sentencing Guidelines (hereafter U.S.S.G.) were advisory only. Cr. Doc. 22 at 2. The parties stipulated that Petitioner was entitled to a guideline reduction for acceptance of responsibility. Id. at 4. The United States promised not to oppose a sentence at the low end of the adjusted guideline range. Id. The plea agreement also featured Petitioner's acknowledgements about the extent of the Court's sentencing discretion:

10. The Defendant understands that the above stipulations are not binding on the Court and that whether the Court accepts these stipulations is a matter solely within the discretion of the Court after it has reviewed the presentence report. Further, the Defendant understands that the Court may choose to deviate from the advisory guideline sentence. The Defendant understands that if the Court does not accept any one or more of the above stipulations and reaches an advisory guideline sentence different than expected by the Defendant, or if the Court deviates from the advisory guideline range, the Defendant will not seek to withdraw the plea of guilty. In other words, regardless of any stipulations the parties may enter into, the Defendant's final sentence is solely within the discretion of the Court.

Id. at 5.

         The only other provision of the plea agreement that is relevant to the instant Motion was the “Factual Basis” admitted by Petitioner:

On 18 December 2006, the defendant entered the Bank of America, located at 3101 Carlisle Boulevard NE, in Bernalillo County, in Albuquerque, in the State and District of New Mexico. (The bank [sic] of America is a federally insured financial institution.) He approached a teller at the bank and, by intimidation, demanded money. The teller complied in the amount of $634.00 which was handed to the defendant.
The defendant then left the bank and a security guard was directed to follow him. The guard exited the bank and observed the defendant running across the parking lot whereupon a concerned citizen followed the defendant across the street to Savon Cash and Carry Flowers. The defendant ran into the flower shop and hid in the restroom and the concerned citizen told him to remain there until the police arrived.
The Albuquerque Police (APD) SWAT team arrived and extricated the defendant. During the extrication of the defendant, the defendant sustained a facial cut which was treated by the SWAT doctor. In the course of the medical assistance, the defendant confessed to having just robbed the bank and that he had flushed the proceeds of the bank robbery down the flower shop's toilet. He was also identified by the bank's teller as the perpetrator of the bank robbery.

Id. at 3-4 (all parentheses in original).[3]

         On April 27, 2007, U.S. Probation Officer Teressa Ray Pena disclosed her Presentence Investigation Report (hereafter “PSR”).[4] At ¶ 29, the PSR recommended that the Court find that Petitioner was a career offender under U.S.S.G. § 4B1.1. In making this recommendation, the PSR emphasized that the instant offense was a “qualifying felony offense” and that Petitioner had two earlier convictions for crimes of violence, referencing his 1992 federal conviction for bank robbery (CR 92-290, D.N.M.) and his 1989 state convictions for robbery (88 CR 46261, 2nd Judicial District Court, NM). PSR ¶ 29.[5] In addition to chronicling Petitioner's extensive criminal history in ¶¶ 32-44, the PSR recommended an adjusted offense level of 29, a criminal history category of VI, and a resulting guideline imprisonment range of 151-188 months. PSR ¶¶ 31, 46, 61. Petitioner filed no objections to the PSR. He did, however, submit an explanation of his offense and expression of responsibility, which were memorialized in an addendum to the PSR.

         On June 21, 2007, the Court held a sentencing hearing. Cr. Doc. 24. A copy of the transcript of that hearing is appended hereto as Attachment 1. At the outset of the hearing, Petitioner affirmed that all of the statements of fact included in the report were true and correct. Tr. at 2. The Court thereupon “adopt[ed] as factual findings of the court all of the factual statements in [the] Presentence Report.” Id. Apart from asking the Court to vary from the adjusted guideline range, neither Petitioner nor his counsel objected to any portion of the PSR, whether factual, legal, or otherwise. Petitioner's counsel acknowledged that there had been no written request for variance submitted prior to the hearing, even though such a request was not precluded by the plea agreement. Id. at 4-5. The Court sentenced Petitioner to a prison term of 151 months, the bottom of the adjusted guideline range. Id. at 6. There was no discussion at the hearing about whether, how, or why Petitioner qualified as a career offender under § 4B1.1.

         The Court filed its judgment on June 22, 2007. Cr. Doc. 25. Having waived his right to appeal, Cr. Doc. 22 at ¶ 12, Petitioner did not appeal his sentence.

         The instant Motion is Petitioner's first attempt to collaterally attack his sentence. He argues that each of the offenses on which his designation as a career offender was based no longer qualify as “crimes of violence” in light of Johnson v. United States, 559 U.S. 133 (2010) (Johnson I) and Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson II). Doc. 1 at 2. He contends that the Johnson II decision should be applied retroactively to reduce the sentencing guideline range for his 2006 bank robbery offense from 151-188 months to 63-78 months. Id. at 1.

         Because of my view that the application of Johnson II to the guidelines should not be given retroactive effect, and because both federal bank robbery and New Mexico state robbery remain crimes of violence under U.S.S.G. § 4B1.2(a) irrespective of Johnson I or II, I recommend denying the Motion.

         II. Analysis

         A. Is Johnson II Retroactive to Guidelines-Only Cases on Collateral Review?

         In Johnson II, the Supreme Court held that the residual clause of the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague. 135 S.Ct. at 2563. Until its demise, the residual clause appeared at the end of 18 U.S.C. § 924(e)(2)(B)(ii), which read: “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)(ii) (2012) (emphasis added). In so holding, the Supreme Court ruled that individuals could not be subject to the ACCA if any of their three requisite prior convictions qualified as “violent felonies” only under the invalidated residual clause. 135 S.Ct. at 2563. Then, in Welch v. United States, the Supreme Court announced that Johnson II would apply retroactively to ACCA cases on collateral review, reasoning that Johnson II announced a new substantive rule. 136 S.Ct. 1257, 1264-65 (2016).

         Here, Petitioner was not sentenced as an “armed career criminal” under the ACCA, but rather a “career offender” under § 4B1.1 of the advisory Sentencing Guidelines. That provision considerably increases the offense level for an adult offender being sentenced for a “crime of violence, ” as that term is defined in § 4B1.2(a), and who has at least two prior convictions for qualifying “crimes of violence.”[6] At the time Petitioner was sentenced, § 4B1.2(a) included a residual clause that - with only a single exception - mirrored the residual clause of the ACCA: “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[.]” U.S.S.G. § 4B1.2(a)(2).[7] While the distinction between an “armed career criminal” and a “career offender” may matter when considering the continued validity of certain prior convictions, it does not make any difference in analyzing whether Johnson II should be applied retroactively to the advisory Sentencing Guidelines.

         In order to be entitled to resentencing, Petitioner must still establish that the residual clause of the guideline provision is also unconstitutionally vague, and that his sentence was enhanced pursuant to that clause. In United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir. 2015), the Tenth Circuit held on direct appeal that the residual clause in § 4B1.2 was just as unconstitutionally vague as its ACCA counterpart. The United States does not contest this point.[8] Nonetheless, because Petitioner's motion is a collateral attack on his sentence, he would not be entitled to relief unless such a decision applies retroactively.

         The question of retroactivity is governed by the now-familiar framework set out in Teague v. Lane, 489 U.S. 288, 309-13 (1989) (plurality opinion). “[A]s a general matter, ‘new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.'” Welch, 136 S.Ct. at 1264 (quoting Teague, 489 U.S. at 310). There are two exceptions to this general rule: first, “new substantive rules generally apply retroactively, ” id. (quoting Schriro v. Summerlin, 542 U.S. 348, 351 (2004)) (alterations and emphasis omitted); and second, “new ‘watershed rules of criminal procedure, ' which are procedural rules ‘implicating the fundamental fairness and accuracy of the criminal proceeding, ' will also have retroactive effect.” Id. (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)).

         The threshold question, therefore, is whether the application of Johnson to the guidelines constitutes a new substantive rule or a new procedural rule. “A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.” Schriro, 542 U.S. at 353. “This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish.” Id. at 351-52 (citations omitted). By contrast, procedural rules “regulate only the manner of determining the defendant's culpability[.]” Id. at 353 (emphasis omitted). Thus, rules that alter “the range of permissible methods for determining whether a defendant's conduct is punishable” by “allocating decisionmaking authority” are procedural. Id. Procedural rules also do not create a class of persons convicted of conduct that is not lawfully criminalized, “but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise.” Id. at 352.

         Under this framework, the Supreme Court concluded that Johnson II's invalidation of the ACCA's residual clause was a new substantive rule because it “changed the substantive reach of the Armed Career Criminal Act . . . .” See Welch, 136 S.Ct. at 1265. As the Court explained,

Before Johnson, the Act applied to any person who possessed a firearm after three violent felony convictions, even if one or more of those convictions fell under only the residual clause. An offender in that situation faced 15 years to life in prison. After Johnson, the same person engaging in the same conduct is no longer subject to the Act and faces at most 10 years in prison. The residual clause is invalid under Johnson, so it can no longer mandate or authorize any sentence. Johnson establishes, in other words, that even the use of impeccable factfinding procedures could not legitimate a sentence based on that clause.

Id. (quotation and citations omitted).

         In contrast, the invalidity of a given sentencing guideline provision is not nearly so material, for while it may change an advisory guideline range, it will not change the maximum or minimum sentence authorized by statute. Consequently, a sentence imposed - even when predicated upon a guideline provision later held invalid - will never exceed the statutorily authorized sentence for the crime of conviction. Thus, such a sentence is not unlawful. See Sun Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011) (en banc) (on collateral review, court upheld 360-month sentence imposed following an erroneous determination that defendant was a career offender pursuant to the sentencing guidelines, concluding such sentence was “not unlawful” because “[a]n unlawful or illegal sentence is one imposed without, or in excess of, statutory authority”). In other words, unlike in Johnson II, where the ACCA both imposed a statutory minimum sentence and increased the statutory maximum sentence, the sentence imposed using the problematic guideline provision can indeed be “legitimate[d]” merely by a judge's determination that the sentence was still appropriate. Welch, 136 S.Ct. at 1265; see United States v. Booker, 543 U.S. 220, 246 (2005) (sentencing guidelines are advisory). Therefore, a rule that would apply Johnson II to invalidate the U.S.S.G. § 4B1.2(a)(2) residual clause has none of the characteristics of a “substantive” rule change under Teague.

         After all, the Supreme Court itself has classified errors in calculating the advisory guidelines range as “procedural.” See, e.g., Peugh v. United States, 133 S.Ct. 2072, 2083 (2013) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). This characterization is accurate because the calculation of a defendant's offense level is just the first step in a multi-step sentencing procedure. Importantly, while “a sentence within the applicable Guidelines range is presumptively reasonable[, ]” United States v. Terrell, 445 F.3d 1261, 1264 (10th Cir. 2006), this presumption is only an appellate presumption, not one that a trial court can or should indulge. See Rita v. United States, 551 U.S. 338, 347-48 (2007); Gall, 552 U.S. at 40-41; Kimbrough v. United States, 552 U.S. 85, 90-91 (2007). The sentencing court must assess the statutory factors under 18 U.S.C. § 3553(a) without any presumption in favor of the advisory guideline sentence. See Rita, 551 U.S. at 351; Gall, 552 U.S. at 40; Kimbrough, 552 U.S. at 90-91. Consequently, if Johnson II now invalidates all enhancements stemming from the § 4B1.2(a)(2) residual clause, that new rule merely alters one non-binding and non-determinative step in the sentencing process. As such, the new rule is best described as procedural. See Hawkins II v. United States, 724 F.3d 915, 917-18 (7th Cir. 2013) (holding that “errors in applying advisory guidelines are procedural, ” and opining that a new rule that erroneously sentencing a defendant under current guidelines rather than less punitive guidelines in effect at the time of offense is a violation of the Ex Post Facto Clause would therefore not be applied retroactively under Teague).[9]

         If the application of Johnson II to the guidelines is a procedural rule, it can only be applied retroactively if it constitutes a “watershed” rule of criminal procedure. Saffle, 494 U.S. at 495. To do so, “the rule must not only improve the accuracy with which defendants are convicted or acquitted, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” United States v. Mora, 293 F.3d 1213, 1218-19 (10th Cir. 2002) (citation, quotation, and emphasis omitted). This exception is a narrow one. Johnson v. McKune, 288 F.3d 1187, 1197-98 (10th Cir. 2002). Watershed rules are on the magnitude of the rule announced in Gideon v. Wainwright, 372 U.S. 335 (1963). Mora, 293 F.3d at 1219 (citing Saffle, 494 U.S. at 495).

         Describing the constitutional heft a procedural rule must have to graduate to “watershed” status is assisted to some extent by pointing to decisions that were held not to be of watershed quality. For example, the Tenth Circuit has held that Apprendi v. New Jersey, 530 U.S. 466 (2000), which upended federal charging practice by holding that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt, did not qualify as a watershed decision. See Mora, 293 F.3d at 1219. The same is true for Booker, even though its seismic effect revolutionized federal sentencing. See United States v. Bellamy, 411 F.3d 1182, 1186-88 (10th Cir. 2005) (Booker constituted a non-watershed procedural rule under Teague analysis). Compared against Apprendi and Booker, the application of Johnson II to the advisory guidelines is not a watershed procedural rule.[10]

         Because the application of Johnson II to the guidelines would be a non-watershed procedural rule, it would not have retroactive effect to Petitioner's sentence. Therefore, I recommend denying the Motion on that ground alone. If the Court agrees, then the Court need not reach Petitioner's other arguments about whether his prior convictions nonetheless qualify as crimes of violence under the force prong of U.S.S.G. § 4B1.2(a)(1) or because they are enumerated in the commentary to § 4B1.2. Nonetheless, I continue my analysis in the event the Court disagrees or desires to rule in the alternative on the remaining issues.

         B. Is the Residual Clause Relevant to Petitioner's Sentence?

         One question that must be answered is whether the residual clause was used at all in characterizing Petitioner's federal bank robbery and New Mexico state robbery convictions as “crimes of violence.” After all, if these convictions qualify as “crimes of violence” under the “force” prong of § 4B1.2(a)(1) or because robbery is specifically enumerated in the commentary to § 4B1.2, then the residual clause of § 4B1.2(a)(2) (and, by extension, the Johnson II decision) is not relevant. More ominous for the Petitioner, if his predicate convictions qualified under the force prong or because robbery is specifically enumerated, then Johnson II did not endow ...


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