United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
E. GARZA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Petitioner Johnathan
Sandoval's Amended Motion to Vacate a Criminal
Sentence Pursuant to 28 U.S.C. § 2255 (Johnson v. United
States) (the “Motion”), (CV Doc. 6), filed
September 9, 2016; and Respondent United States'
Response to Defendant's Motion to Correct Sentence
Pursuant to 28 U.S.C. § 2255 (the
“Response”), (CV Doc. 11), filed December 23,
2017. Petitioner has not filed a reply, and the
time for doing so has passed. D.N.M.LR-Civ. 7.4(a). United
States District Judge C. Leroy Hansen referred this case to
Magistrate Judge Carmen E. Garza to perform legal analysis
and recommend an ultimate disposition. (CV Doc. 3). After
considering the parties' filings and the relevant law,
the Court RECOMMENDS that Petitioner's
Motion be DENIED.
20, 2013, Petitioner pled guilty to one count of being a
felon in possession of ammunition, in violation of 18 U.S.C.
§§ 922(g) and 924(a)(2). (CR Doc. 68). Pursuant to
a plea agreement, the parties stipulated that Petitioner may
have been an “armed career criminal” as defined
by 18 U.S.C. § 924(e). (CR Doc. 67 at 2). If Petitioner
was not an armed career criminal, he would have faced a
maximum 120 month sentence. § 924(a)(2). If Petitioner
was found to be an armed career criminal, he would have faced
a minimum 180 month sentence. § 924(e)(1).
Petitioner's pre-sentence report (“PSR”)
determined that Petitioner was an armed career criminal based
on Petitioner's numerous convictions for residential
burglary in New Mexico. (CR Doc. 96-1 at 6-7). The PSR
determined Petitioner's Guideline range was 188 to 235
months. (CR Doc. 96-1 at 20). Ultimately, Petitioner pled
guilty pursuant to a Rule 11(c)(1)(C) plea agreement and
stipulated to a 180 month sentence. (CR Doc. 67 at 5).
criminal defendant is deemed an armed career criminal if he
has three prior convictions for “violent
felonies.” § 924(e)(1). When Petitioner was
sentenced, “violent felony” included any crime
that “is burglary . . . or otherwise involves
conduct that presents a serious potential risk of physical
injury to another. § 924(e)(2)(B)(ii). The
italicized clause is known as the “residual
clause.” U.S. v. Johnson, 135 S.Ct. 2551, 2556
(2015). In Johnson, the United States Supreme Court
held that the residual clause was unconstitutionally vague
and may not be used to increase a criminal defendant's
sentence. Id. at 2557.
Johnson, Petitioner filed the instant Motion,
challenging both his designation as an armed career criminal
and his sentence. Petitioner argues his convictions for
residential burglary do not qualify as the enumerated offense
of “burglary” under § 924(e)(2)(B)(ii),
therefore he was deemed an armed career criminal in reliance
on the residual clause. (CV Doc. 4, 7-8). Because the
residual clause is unconstitutional, Petitioner claims he is
entitled to resentencing without being considered an armed
career criminal. (CV Doc. 6 at 10).
counters first with procedural arguments. Respondent argues
that: (1) Petitioner waived his right to collaterally attack
his sentence under § 2255; (2) Petitioner's motion
is time-barred because Johnson is inapplicable to
Petitioner's case; and (3) Petitioner forfeited his
§ 2255 claim when he pled guilty and agreed to serve 180
months. (CV Doc. 11 at 5-6). As for the merits of
Petitioner's Motion, Respondent argues that
“residential burglary” in New Mexico qualifies as
“burglary” under § 924(e)(2)(B)(ii),
therefore Petitioner was not deemed an armed career criminal
in reliance on the residual clause. (Doc. 11 at 14-15).
Standard of Review
U.S.C. § 2255 provides that federal prisoners may
challenge their sentences if: (1) their sentence was imposed
in violation of the United States Constitution or federal
law; (2) the sentencing court had no jurisdiction to impose
the sentence; (3) the sentence exceeded the maximum
authorized sentence; or (4) the sentence is otherwise subject
to collateral review. § 2255(a). If the court finds that
a sentence infringed upon the prisoner's constitutional
rights and is subject to collateral review, the court must
vacate the sentence and discharge, resentence, or correct the
sentence as the court believes appropriate. § 2255(b).
Whether Petitioner has waived his right to file this Motion
under § 2255
threshold issue the Court must address is whether Petitioner
waived his right to file the instant Motion. Respondent
argues Petitioner waived his right to collaterally attack his
sentence in his plea agreement. (CV Doc. 11 at 6). Petitioner
did not reply to this argument. Nonetheless, the Court will
evaluate Respondent's argument.
plea agreement includes a “Waiver of Appeal
Rights.” (CR Doc. 67 at 9). The waiver states that
Petitioner “knowingly waives the right to appeal [his]
conviction(s) and any sentence . . . In addition, the
[Petitioner] agrees to waive any collateral attack to [his]
conviction(s) pursuant to 28 U.S.C. § 2255, except on
the issue of counsel's ineffective assistance in
negotiating or entering this plea or waiver.” (CR Doc.
67 at 9). Petitioner has filed a motion under § 2255
challenging his sentence-not his conviction. (CV Doc. 6 at 1,
4, 11). The Motion repeatedly refers to Petitioner's
sentence as an armed career criminal, but the Motion does not
dispute the underlying conviction for possession of
ammunition. (CV Doc. 6 at 1, 4, 11).
petitioner's waiver of his right to collateral attack
under § 2255 “is generally enforceable where the
waiver is expressly stated in the plea agreement.”
U.S. v. Cockerham, 237 F.3d 1179, 1183 (10th Cir.
2001). In the Tenth Circuit, courts perform a three-pronged
analysis to determine the force of a waiver. U.S. v.
Hahn,359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)
(per curiam). The Court must decide: (1) whether the
challenged motion is within the scope of the waiver; (2)
whether the movant knowingly and voluntarily agreed to the
waiver; and (3) if enforcing the waiver would result in a
miscarriage of justice. Id. The Court must
“strictly construe[ ]” the waiver's scope,
and “‘any ...