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Rhoads v. United States

United States District Court, D. New Mexico

January 25, 2017

PHILLIP JASON RHOADS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY B. WORMUTH United States Magistrate Judge

         This matter is before the Court on Petitioner's Amended Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (doc. 1)[1] and his subsequent amendment thereto (doc. 6). Having reviewed the pleadings and record before the Court, I recommend denying the Motion.

         I. Background

         On November 3, 1997, Petitioner pled guilty to one count of Possession with Intent to Distribute More than 100 Grams and More of a Mixture or Substance Containing Methamphetamines, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2, and one count of Carrying a Firearm During and in Relation to a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c). See cr. docs. 1, 80, 81; see also Presentence Report (“PSR”) ¶ 3. The drug trafficking offense carried a mandatory minimum sentence of five years imprisonment and a maximum of forty years imprisonment, and the firearm enhancement carried an additional mandatory five years imprisonment. PSR at 1, ¶ 41. After the three-level reduction for acceptance of responsibility under the United States Sentencing Guidelines (U.S.S.G.) §§ 3E1.1(a) and (b)(2) (1997), Petitioner's total offense level was calculated at 27. PSR ¶ 28. Additionally, the PSR calculated that Petitioner's criminal history category was V. PSR ¶ 40.

         Ordinarily, an offense level of 27 with a criminal history category of V would establish a guideline imprisonment range of 120 to 150 months. Cr. doc. 154 at 5. However, as reflected in the PSR, Petitioner had two prior felony convictions for Armed Robbery and Possession with Intent to Distribute Cocaine. PSR ¶¶ 34, 38, 41. Because the former conviction was considered a “crime of violence” under U.S.S.G. § 4B1.2(a), [2]and the latter was a controlled substance offense under U.S.S.G. § 4B1.2(b), Petitioner qualified as a career offender under U.S.S.G. § 4B1.1(a).[3] PSR ¶ 41; see also cr. doc. 154 at 5-6. Petitioner's offense level was thus adjusted to 31 under the career offender enhancement because the statutory maximum for his drug trafficking offense was 25 years or more, and his guideline imprisonment range became 188 to 235 months. U.S.S.G. § 4B1.1(b) (1997); see also PSR ¶ 68. After a sentencing hearing, the Court imposed a sentence of 188 months. See cr. doc. 154 at 6.

         Petitioner's Motion argues that his conviction for armed robbery is no properly categorized as a § 4B1.2(a) “crime of violence” in light of Johnson v. United States, 135 S.Ct. 2551 (2015). See generally doc. 6. In Johnson, the Supreme Court held that the residual clause of the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B) - “or otherwise involves conduct that presents a serious potential risk of physical injury to another”-is unconstitutionally vague. 135 S.Ct. at 2563. Therefore, individuals could not be subject to the ACCA if their underlying prior convictions qualified as “violent felonies” only under the vague residual clause. Id. The Supreme Court announced that Johnson would apply retroactively on collateral review in Welch v. United States, reasoning that Johnson announced a substantive new rule. 136 S.Ct. 1257, 1264-65 (2016).

         However, Petitioner was not sentenced pursuant to the ACCA. Instead, as described above, he received an increase to his sentencing guideline range pursuant to the career offender guideline due to his “two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). That guideline provision resulted in a four-level increase to the base offense level pursuant to U.S.S.G. § 4B1.1(b). As already discussed, the enhancement was based on one prior conviction for a “controlled substance offense, ” as defined in § 4B1.2(b), and one “crime of violence, ” as defined in § 4B1.2(a). See cr. doc. 154 at 5-6. The definition of “crime of violence, ” as used in the career offender guideline, contains a residual clause identical to the residual clause in the ACCA. See U.S.S.G. § 4B1.2(a)(2); 18 U.S.C. § 924(e)(2)(B)(ii). In order to be entitled to resentencing on the basis that his conviction for armed robbery is not a “crime of violence, ” Petitioner must first establish that the residual clause of the guideline provision is also unconstitutional for vagueness. In United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir. 2015), on direct appeal, the Tenth Circuit indeed held that use of the residual clause in U.S.S.G. § 4B1.2 to calculate and enhance sentencing guideline ranges is unconstitutional because the clause is void for vagueness. Consequently, the United States has conceded this point.[4] Next, because Petitioner's motion is a collateral attack on his sentence, he must establish that relief pursuant to Johnson and Madrid applies retroactively. Finally, assuming retroactive effect, Petitioner must demonstrate that his sentence was enhanced pursuant to the residual clause of U.S.S.G. § 4B1.2(a)(2).

         Petitioner does not contest that his conviction of a controlled substance offense was a valid partial basis for the § 4B1.1(a) enhancement. See generally docs. 1, 6. Thus, the only issues remaining for the Court to address are the retroactivity of Johnson/Madrid and whether New Mexico armed robbery still qualifies as a “crime of violence” under U.S.S.G. § 4B1.2(a) without the residual clause. Because I conclude that New Mexico armed robbery remains a “crime of violence” under the guidelines even absent the residual clause, I need not address the retroactivity question.[5]

         II. Legal Standard

         While a “crime of violence” justifying a career offender enhancement under the guidelines is distinct from the “violent felony” provision of the ACCA, the Tenth Circuit has instructed that because the definition of the former is “almost identical” to the definition of the latter, “the Supreme Court's analysis under the ACCA ‘applies equally to the sentencing guidelines.'” United States v. Charles, 576 F.3d 1060, 1068 n.2 (10th Cir. 2009) (citing United States v. Tiger, 538 F.3d 1297, 1298 (10th Cir. 2008)). The Court may therefore apply relevant precedent regarding one provision interchangeably to the other.

         When determining whether a prior conviction constitutes a “crime of violence” under the guidelines, the Court generally employs the categorical approach, which involves “looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir. 2005) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)). However, if the statute defining the prior offense is divisible, the Court will then apply what is known as a “modified-categorical approach.” See Mathis v. United States, 136 S.Ct. 2243, 2249 (2016) (explaining that “divisible” statutes are those that “list elements in the alternative, and thereby define multiple crimes”). Under this approach, the Court should consult “a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy)” to determine whether the defendant in a particular case was convicted of a crime that categorically qualifies as a crime of violence. Id.

         III. Analysis

         Petitioner argues that his conviction for armed robbery no longer satisfies the definition of “crime of violence” under U.S.S.G § 4B1.2 after redacting its residual clause, which the Tenth Circuit held to be unconstitutionally vague in light of Johnson. See doc. 6 at 6-22. Madrid, 805 F.3d at 1210-11. Petitioner asserts he is therefore entitled to resentencing on the basis that the career offender enhancement was unconstitutionally applied to increase his sentencing guideline range. See generally doc. 6.

         As a preliminary matter, Petitioner's conviction of armed robbery clearly does not qualify as a “crime of violence” under the clause enumerating the specific crimes of “burglary of a dwelling, arson, or extortion, ” or those “involv[ing] the use of explosives.” U.S.S.G. § 4B1.2(a)(2). Therefore, the pertinent question is whether armed robbery qualifies as a crime of violence under the “elements clause”-that is, whether the crime of armed robbery in New Mexico “has as an element the use, attempted use, or threatened use of physical force against the person of another[.]” Id. at (a)(1). The elements clause of the definition of “crime of violence” under the guidelines is identical to the corresponding clause in the definition of “violent felony” under the ACCA. See 18 U.S.C. § 924(e)(2)(B)(i); U.S.S.G. § 4B1.2(a)(1). In Johnson v. United States, 559 U.S. 133, 140 (2010), [6] the Supreme Court explained 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.

         A. Robbery in New Mexico is a “crime of violence” under the Guidelines.

         Petitioner's conviction is based upon a violation of New Mexico's robbery statute, which provides 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 threatened use of force or violence.
Whoever commits robbery is guilty of a third degree felony.
Whoever commits robbery while armed with a deadly weapon is, for the first offense, guilty of a second degree felony and, for second and subsequent offenses, ...

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