United States District Court, D. New Mexico
January 10, 2017
PAUL J. VASQUEZ, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
Paul Vasquez (Petitioner) relies on Johnson v. United
States, 135 S.Ct. 2551 (2015), to request this Court to
vacate his sentence. See MOTION TO CORRECT SENTENCE
PURSUANT TO 28 U.S.C. § 2255 (Doc. No. 1) (Motion);
REPLY TO UNITED STATES' RESPONSE TO DEFENDANT'S
MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE (Doc. No.
10) (Reply). Petitioner argues that the prior convictions
used to increase his base offense level under U.S.S.G. §
2K2.1(a)(2) are not crimes of violence after
Johnson, and therefore that he should be resentenced
using the corrected base offense level and the resulting
lower Sentencing Guidelines range. See Mot. at 1-2.
The United States opposes the Motion. See UNITED
STATES' RESPONSE TO DEFENDANT/MOVANT'S MOTION TO
CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Doc. No.
9) (Response). The Court will grant the Motion in part.
1, 2008, Petitioner pleaded guilty to one count of being a
felon in possession of a firearm. Mot. at 2. He did not enter
into a plea agreement. Resp. at 1. Petitioner's base
offense level was enhanced under U.S.S.G. § 2K2.1(a)(2)
due to his prior convictions for aggravated battery with a
deadly weapon and battery on a peace officer, which were both
considered crimes of violence. Mot. at 1-2. U.S.S.G. §
2K2.1(a) sets a base offense level of 12, which is enhanced
to 20 if a defendant has a prior felony conviction for a
crime of violence or a controlled substance offense, and to
24 if the defendant has two or more such prior convictions.
Petitioner's total offense level was 27 after
adjustments. Mot. at 2. When combined with his criminal
history category of VI, this resulted in an advisory
Sentencing Guidelines range of 130-162 months. Mot. at 2.
Petitioner was sentenced to the statutory maximum sentence of
ten years, or 120 months. Mot. at 2. He is currently
scheduled for release in February 2017. Mot. at 3.
§ 2K2.1(a)(2) incorporates the definition of
“crime of violence” found in U.S.S.G. §
4B1.2(a). See U.S.S.G. § 2K2.1(a)(2) cmt. n.1.
At the time of Petitioner's offense, that definition
included any felony 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.”
U.S.S.G. § 4B1.2(a) (2007) (emphasis added). The Tenth
Circuit Court of Appeals has held that this italicized part
of U.S.S.G. § 4B1.2, the residual clause, is
unconstitutionally vague in light of Johnson.
See United States v. Madrid, 805 F.3d 1204, 1211
(10th Cir. 2015).
asserts that his prior convictions could have qualified as
crimes of violence only under the now-invalid residual clause
of U.S.S.G. § 4B1.2(a). Mot. at 12, 16. He asks this
Court to apply Johnson retroactively to his case on
collateral review and to resentence him without the enhanced
base offense level. Mot. at 16. Petitioner's total
offense level would have been 15 if neither of his prior
convictions qualified for enhancement under U.S.S.G. §
2K2.1(a), resulting in a Guidelines range of 41-51 months.
Mot. at 2-3. If only one conviction had been counted, his
total offense level would have been 23 and his advisory
Guidelines range would have been 92-115 months. Resp. at 12.
The United States concedes that Petitioner's conviction
for battery on a peace officer is not a crime of violence, so
that Petitioner is substantively eligible for at least
partial relief. Resp. at 11-12. But the United States
argues that Johnson is not retroactively applicable
to Guidelines cases on collateral review, and therefore that
Petitioner's Motion must be denied on procedural grounds.
Resp. at 11.
issue is currently before the Supreme Court in Beckles v.
United States, 616 F.App'x 415 (11th Cir. 2015),
cert. granted, 136 S.Ct. 2510 (June 27, 2016).
However, Petitioner has already served more than the
corrected minimum advisory Guidelines range were he to
prevail on his Motion. The Court will therefore consider the
merits due to the possible prejudice to Petitioner from any
delay. See United States v. Carey, No. 16-8093, ___
F.App'x ___, 2016 WL 6543343 (10th Cir. Nov. 4, 2016)
(unpublished) (granting a writ of mandamus directing the
district court to rule on a § 2255 motion without
waiting for Beckles when the petitioner would be
eligible for immediate release if his claim was meritorious).
Supreme Court held in Johnson that the residual
clause of the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B), was unconstitutionally vague, so that
its application to impose an increased sentence was a
violation of due process. 135 S.Ct. 2551, 2557, 2563.
Johnson applies retroactively to all ACCA cases on
collateral review. Welch v. United States, 136 S.Ct.
1257, 1268 (2016). Johnson also applies to cases on
direct appeal where an enhanced Guidelines range was derived
from application of the residual clause in the Sentencing
Guidelines. Madrid, 805 F.3d at 1211. But the United
States contends that Johnson is procedural rather
than substantive when it is applied to the Sentencing
Guidelines, and therefore that Johnson does not
apply retroactively to Guidelines cases on collateral review.
Resp. at 11.
constitutional rules of criminal procedure are not generally
applicable to cases that are already final when the rules are
announced. See Welch, 136 S.Ct. 1264 (citing
Teague v. Lane, 489 U.S. 288, 310 (1989)). A new
rule is retroactively applicable to cases on collateral
review only if it is substantive rather than procedural, or
if it represents a “watershed” change in criminal
procedure that impacts accuracy or fundamental fairness.
Id. A substantive rule “alters the range of
conduct or the class of persons that the law punishes,
” and 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 1264-65 (internal
quotation marks and citation omitted). By contrast, a
procedural rule “regulate[s] only the manner of
determining the defendant's culpability.”
Id. at 1265 (emphasis in original) (internal
quotation marks omitted). It does not create “a class
of persons convicted of conduct the law does not make
criminal.” Id. (internal quotation marks
Supreme Court determined in Welch that the rule
announced in Johnson was substantive, and therefore
retroactive, because Johnson narrowed the reach of
the ACCA by limiting the offenses that qualified for an
enhanced sentence. Id. After Johnson, a
sentence imposed under the residual clause of the ACCA is not
a legitimate sentence. See Id. The application of
Johnson to Guidelines cases similarly reduces the
offenses which merit an enhanced Guidelines range. See
Madrid, 805 F.3d at 1213.
United States argues that the advisory nature of the
Sentencing Guidelines makes this effect procedural rather
than substantive. Resp. at 6-9. A judge does retain the
authority to sentence outside the Guidelines, see
Madrid, 805 F.3d at 1211, so that a statutorily
authorized sentence imposed after calculation of an
erroneously enhanced Guidelines range is not an illegal
sentence even if it is higher than the maximum of the correct
range. See Resp. at 7-9. But a rule does not need to
eliminate the possibility of a certain sentence to be
substantive. See Montgomery v. Louisiana, 136 S.Ct.
718, 734 (2016). Montgomery held that the rule
announced in Miller v. Alabama, 132 S.Ct. 2455
(2012), which invalidated the mandatory imposition of life
without the possibility of parole on juvenile offenders, was
a substantive rule despite the fact that the sentencing court
could still impose the penalty. Montgomery, 136
S.Ct. at 734. Miller required that a sentencing
court consider an offender's youth when determining the
appropriate punishment, but Miller also determined
that “sentencing a child to life without parole is
excessive for all but the rare juvenile offender whose crime
reflects irreparable corruption.” Id.
(internal quotation marks omitted). This reduced the number
of juvenile offenders that could be constitutionally
subjected to a sentence of life in prison, so it announced a
substantive rule with retroactive effect. Id.
here, reducing the number of offenses that qualify as crimes
of violence under the Guidelines reduces the range of conduct
that will trigger an enhanced penalty and the number of
offenders that will be subject to enhancement. “[T]he
Guidelines are the mandatory starting point for a sentencing
determination; a district court can be reversed for failing
to correctly apply them despite the ability to later deviate
from the recommended range.” Madrid, 805 F.3d
at 1211. While all sentencing decisions are within the
discretion of the district court and subject to deferential
review, “the extent of the difference between a
particular sentence and the recommended Guidelines range is
surely relevant” to the reasonableness of a particular
sentence. Gall v. United States, 552 U.S. 38, 40
(2007). A sentence that falls within the recommended
Guidelines range may be presumed to be reasonable.
Id. But “a district judge must give serious
consideration to the extent of any departure from the
Guidelines and must explain his conclusion that an unusually
lenient or an unusually harsh sentence is appropriate in a
particular case with sufficient justifications.”
Id. at 46.
Guidelines therefore provide the basis for the sentence even
when the term imposed falls outside the advisory range.
Peugh v. United States, 133 S.Ct. 2072, 2083 (2013).
This system, “in practice, make the imposition of a
non-Guidelines sentence less likely.” Id. at
2083- 84. “The Sentencing Guidelines represent the
Federal Government's authoritative view of the
appropriate sentences for specific crimes. “
Id. at 2085. “[A]n increase in the guidelines
range applicable to an offender create[s] a significant risk
that [the offender will] receive a higher sentence.”
Id. at 2083; see also Molina-Martinez v. United
States, 136 S.Ct. 1338, 1345 (2016) (“[T]he
Guidelines are not only the starting point for most federal
sentencing proceedings but also the lodestar. The Guidelines
inform and instruct the district court's determination of
an appropriate sentence. In the usual case, then, the
systemic function of the selected Guidelines range will
affect the sentence. . . . In most cases a defendant who has
shown that the district court mistakenly deemed applicable an
incorrect, higher Guidelines range has demonstrated a
reasonable probability of a different outcome.”).
United States urges the Court to follow Miller v. United
States, 16-cv-00566-WJ-WPL (D.N.M. Sept. 23, 2016),
which concluded that Johnson announced a procedural
rule when applied to the Guidelines due to their advisory
nature. Resp. at 4. But the United States has failed to
mention Soto v. United States, 16-cv-00308-JAP-CG
(D.N.M. Sept. 16, 2016), Martinez Jr. v. United
States, 16-cv-00449-RB-LAM (D.N.M. Dec. 2, 2016), or any
of the other district court decisions in this Circuit which
have reached the opposite conclusion. See Martinez
Jr., 16-cv-00449-RB-LAM (collecting cases from other
districts). The Court concludes that the rule announced in
Johnson reduces the range of conduct that merits a
longer recommended Guidelines sentence, and thereby limits
the number of offenders that can still reasonably be
subjected to such a lengthy term based on individualized
justifications for sentencing outside of the Guidelines. This
is a substantive rule that applies retroactively on
concluded that Johnson is applicable, the Court will
analyze Petitioner's prior convictions to determine
whether they can be categorized as crimes of violence after
Johnson. The United States concedes that
Petitioner's conviction for battery on a peace officer is
no longer a crime of violence. Resp. at 11-12. But Petitioner
argues further that Johnson also invalidated any
enhancement based on his conviction for aggravated battery
with a deadly weapon. Mot. at 9-12. Aggravated battery is not
an enumerated crime of violence under § 4B1.2(a). Thus
to survive Johnson as a predicate offense for
enhancement, aggravated battery must contain as an element
the use, attempted use, or threatened use of physical force.
See § 4B1.2(a). The Supreme Court has clarified
that “in the context of a statutory definition of
‘violent felony, ' the phrase
‘physical force' means violent force-that
is, force capable of causing physical pain or injury to
another person.” Johnson v. United States, 559
U.S. 133, 140 (2010) (emphasis in original).
Mexico defines aggravated battery as “the unlawful
touching or application of force to the person of another
with intent to injure that person or another.” NMSA
1978, § 30-3-5(A) (1969). The use of a deadly weapon
elevates the crime to a felony. Section 30-3-5(C). A deadly
weapon is “any firearm, whether loaded or unloaded; or
any weapon which is capable of producing death or great
bodily harm.” NMSA 1978, § 30-1-12(B) (1963).
Petitioner argues that aggravated battery does not require
the use of violent physical force because it encompasses any
touch. Mot. at 11; In determining whether the requisite
element of force is present, the Court is bound by the New
Mexico Supreme Court's interpretation of state law.
See Johnson, 559 U.S. at 138.
Mexico, simple battery requires only the slightest touch.
See State v. Seal, 1966-NMSC-123, ¶ 5, 76 N.M.
461, 415 P.2d 845. The “unlawful touching or
application of force” required to commit aggravated
battery is the same. See State v. Garcia,
2009-NMCA-107, ¶ 5, 147 N.M. 150, 217 P.3d 1048 (simple
battery is a lesser included offense of aggravated battery).
Common-law battery that can be committed by any offensive
touch, no matter how slight, does not qualify as a crime of
violence. See Johnson, 559 U.S. at 141-42. But the
requirement of a specific intent to injure and the use of a
deadly weapon differentiate New Mexico's aggravated
battery statute from the common-law crime. See United
States v. Mitchell, 653 F.App'x 639, 645 (10th Cir.
2016) (“the additional element of a deadly or dangerous
weapon makes an apprehension-causing assault [or an
attempted-battery assault] a crime of violence, even if the
simple assault would not be.”); United States v.
Ramon-Silva, 608 F.3d 663, 669-72 (10th Cir. 2010)
(aggravated assault with a deadly weapon is a crime of
violence because it threatens violent physical force);
United States v. Treto-Martinez, 421 F.3d 1156, 1159
(10th Cir. 2005) (aggravated battery with a deadly weapon
under Kansas law is a crime of violence even though it
requires only touch because “[p]hysical contact with a
deadly weapon . . . will always constitute either actual or
threatened use of physical force.”). The Court
concludes that even if only the slightest touch is required,
Petitioner's conviction for aggravated battery with a
deadly weapon contains as an element the threatened use of
violent physical force, and remains a crime of violence after
Johnson. Petitioner is properly subject to
enhancement of his offense level under U.S.S.G. §
2K2.1(a) based on one prior conviction for a crime of
violence, rather than the two prior convictions which were
included at his sentencing.
THEREFORE ORDERED that Petitioner's MOTION TO CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Doc. No. 1) is
GRANTED in part and DENIED in part. Petitioner's sentence
will be vacated and a resentencing hearing will be scheduled.
 The United States does not concede
that Petitioner's conviction for aggravated battery with
a deadly weapon is not a crime of violence, but does not
respond to Petitioner's argument as it relates to that
charge. See Resp. at 11 n.2.