United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH United States Magistrate Judge
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) and his subsequent amendment
thereto (doc. 6). Having reviewed the pleadings and
record before the Court, I recommend denying the Motion.
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 ¶
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), 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). 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.
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).
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. 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).
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.
“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.
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.
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.
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),  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.
Robbery in New Mexico is a “crime of
violence” under the Guidelines.
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, ...