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United States v. Garcia

United States District Court, D. New Mexico

January 31, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
PHILLIP ANGEL GARCIA, Defendant/Movant.

          Damon P. Martinez United States Attorney David M. Walsh Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff/Respondent.

          Michael A. Keefe Assistant Federal Public Defender Office of the Federal Public Defender Albuquerque, New Mexico Attorney for the Defendant/Movant.

          MEMORANDUM OPINION AND ORDER OVERRULING THE MAGISTRATE JUDGE'S AMENDED PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER comes before the Court on the Magistrate Judge's Amended Proposed Findings and Recommended Disposition, filed November 1, 2016 (Doc. 30)(“PFRD”), entered pursuant to the Court's Memorandum Opinion and Order, filed September 28, 2016 (Doc. 23)(“MOO”). On November 14, 2016, Defendant/Movant Phillip Angel Garcia filed Mr. Garcia's Objections to Certain Magistrate Judge's Proposed Findings, filed November 14, 2016 (Doc. 31)(“Objections”). Plaintiff United States of America did not file objections to the PFRD. The United States' deadline for filing a response to Garcia's Objections was December 1, 2016, and the United States similarly did not file a response to Garcia's Objections. The Court has conducted a de novo review of those portions of the PFRD, authored by the Honorable Judge Lourdes Martínez, United States Magistrate Judge for the District of New Mexico, to which Garcia objects, and concludes that, although his Objections lack a sound foundation in the facts and in the applicable law, the PFRD similarly reaches a conclusion that the Court adopts only in part. The Court notes that, by his Objections, Garcia did not object to Judge Martínez' disposition -- instead, Garcia objected only to Judge Martínez' analysis. Regardless, because Garcia's Objections found the Court's de novo review of Garcia's specific Objections to the PFRD, the Court is also forced, by Garcia's Objections, to analyze each issue at play in this case and disagrees in part with Judge Martínez' and Garcia's analyses and conclusions. The primary issues are: (i) whether robbery in New Mexico, N.M. Stat. Ann. § 30-16-2, is a “violent felony” for the purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”); and (ii) whether a court, on a petition under 28 U.S.C. § 2255 to review a sentencing court's ACCA application, is restricted to consideration of a defendant's prior convictions that were explicitly listed as predicate felonies in a Presentence Report, filed June 24, 2016 (Doc. 11)(“PSR”), or if, instead, a court can consider whether defendant's additional felonies listed elsewhere in that report are ACCA predicate felonies. The Court concludes that, in New Mexico, robbery is a “violent felony” and that the Court can consider Garcia's robbery conviction, the existence of which all parties knew at the initial sentencing, even though the United States Probation Office (“USPO”) did not explicitly list as one of Garcia's ACCA predicate felonies in the PSR. Accordingly, the Court will: (i) overrule the Objections as lacking a sound foundation in the facts and in the applicable law; (ii) adopt in part and deny in part the PFRD; (iii) deny Mr. Garcia's Motion for Expedited Decision and Resentencing, filed May 27, 2016 (Doc. 8)(“Motion for Expedited Decision”); and (iv) deny Mr. Garcia's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255, filed March 30, 2016 (Doc. 1)(“Motion”).

         FACTUAL BACKGROUND

         On April 24, 2007, Garcia was indicted on the charge of possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See Redacted Indictment, filed April 24, 2007 (Cr. Doc. 12)(“Redacted Indictment”). On December 13, 2007, Garcia entered into a Plea Agreement, filed December 13, 2007 (Cr. Doc. 41)(“Plea Agreement”), in which he pled guilty to the “one-count indictment charging a violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2), that being Felon in Possession of a Firearm and Ammunition, ” as alleged in the Redacted Indictment. See Plea Agreement at 1-2. By the Plea Agreement, “The United States has made, and will make, NO AGREEMENT pursuant to Rule 11(c)(1)(C), Fed. R. Crim. P., that a specific sentence is the appropriate disposition of this case.” Plea Agreement at 3. Garcia admitted that

Prior to February 22, 2007, I had previously been convicted of the following felony convictions: Robbery in the Second Judicial District Court for the State of New Mexico in case number CRCR 96-03943, Unlawful Taking of a Vehicle in the Second Judicial District Court for the State of New Mexico in case number CRCR 96-3943, Arson in the Second Judicial District Court for the State of New Mexico in case number CRCR 96-03943, Residential Burglary in the Second Judicial District Court for the State of New Mexico in case number CRCR 97-03978, Possession of a Deadly Weapon by a Prisoner in the Second Judicial District Court for the State of New Mexico in case number CR 99-00548, Receiving and Transferring a Stolen Vehicle in the Second Judicial District Court for the State of New Mexico in case number CR 99-03043, and Possession of a Controlled Substance in the Second Judicial District Court for the State of New Mexico in case number CR 05-03651.

Plea Agreement at 5.

         PROCEDURAL BACKGROUND

         On December 10, 2007, the USPO disclosed a PSR, concluding that Garcia is subject to the ACCA, which mandates a minimum fifteen-year term of imprisonment. See PSR at 4. For the conclusion, the USPO relied on Garcia's prior convictions for arson, residential burglary, and possession of a deadly weapon by a prisoner, providing:

The following prior convictions that were used to trigger this enhancement are as follows: Count 10, Arson (Over $1, 000) (Felony), as charged in the Second Judicial District Court, in Albuquerque, New Mexico, case number CR 96-3943; Residential Burglary, as charged in the Second Judicial District Court, in Albuquerque, New Mexico, case number CR 97-3978; and Count 1, Possession of a Deadly Weapon By a Prisoner, as charged in the Second Judicial District Court, in Albuquerque, New Mexico, case number CR 99-548.

         PSR at 10. The PSR nonetheless recounts Garcia's criminal history, listing his prior conviction for New Mexico robbery, amongst all others. See PSR at 13-14. Indeed, on December 12, 2007, the United States filed its Notice of Intention to Seek Enhanced Sentence Pursuant to the Armed Career Criminal Provisions of 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, filed December 12, 2007 (Cr. Doc. 40)(“Notice”), in which the United States “inform[ed] the defense and the Court that it will be relying upon [Garcia's] violent felony convictions [for robbery, arson, possession of a deadly weapon by a prisoner, and burglary] to animate the enhanced penalty provision[s] ¶ 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4.” Notice at 2. Accordingly, on December 13, 2007, Garcia entered into the Plea Agreement in which he pled guilty to the “one-count indictment charging a violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2), that being Felon in Possession of a Firearm and Ammunition, ” as alleged in the Redacted Indictment. See Plea Agreement at 1-2.

         On October 1, 2008, the Honorable Senior Judge John Conway, United States District Judge for the District of New Mexico, sentenced Garcia to 188 months of imprisonment, and recommended that Garcia's sentence run concurrently with his state cases that were then pending in New Mexico State Court. See Judgment at 1-2, filed October 1, 2008 (Cr. Doc. 61)(“Judgment”). Judge Conway also concluded that “the defendant, a six-time convicted felon, was in possession of a firearm.” Transcript of Hearing at 6:5-6, taken October 1, 2008 (“Tr.”)(Conway). In addition, Judge Conway sentenced Garcia to a term of supervised release for three years. See Judgment at 3.

         On March 30, 2016, Garcia filed the Motion in which he contends that his sentence is unconstitutional pursuant to the Supreme Court of the United States' recent decision in Johnson v. United States, 135 S.Ct. 1551 (2015)(“Johnson II”). See Motion at 2. Garcia contends that his conviction for possession of a deadly weapon by a prisoner was a conviction for a violent felony under the ACCA solely because it fit within the residual clause, which the Supreme Court found to be unconstitutionally vague in Johnson II. See Motion at 1, 13-14. In addition, Garcia contends that his conviction for New Mexico robbery does not maintain justification for his ACCA enhancement, because New Mexico's third-degree robbery statute does not require force sufficient to meet ACCA's “physical force” or “violent force” clause. See Motion at 17 (relying on Johnson v. United States, 559 U.S. 133, 140 (2010)(“Johnson I”)(describing the physical force clause, and holding that the crime in question must entail “violent” force). Garcia contends that, because the ACCA enhancement requires three previous convictions for a violent felony or for a serious drug offense, and because Garcia “only has at most two, not three, previous convictions for ‘violent felonies' that the district court relied on, ” he is thus not subject to the ACCA enhancement. Motion at 14. Based on these arguments, Garcia asks the Court to vacate his sentence and resentence him to no more than the ten-year maximum sentence to which he would be subject absent the ACCA enhancement. See Motion at 2, 14.

         In its response to Garcia's § 2255 Motion, the United States concedes that Garcia's conviction for possession of a deadly weapon by a prisoner no longer supports his ACCA eligibility after Johnson II. See United States' Response to Mr. Garcia's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 at 2, filed May 16, 2016 (Doc. 6)(“Response”). Nevertheless, the United States notes that it initially, in 2008, contended that Garcia had four predicate violent felonies under the ACCA -- burglary, robbery, arson, and possession of a deadly weapon by a prisoner -- and that, even absent the possession of a deadly weapon by a prisoner conviction, Garcia still has three qualifying predicate convictions. See Response at 2 (referencing the United States' Notice at 2). The United States further contends that Johnson I is nonetheless not retroactive, and that because Garcia's robbery offense qualified as a violent felony at the time he was sentenced, it still qualifies. See Response at 2-3. In addition, the United States notes that the USPO filed a Sentencing Memorandum, filed July 14, 2016 (Doc. 13)(“Memorandum”), stating that Garcia's remaining convictions for robbery, burglary, and arson all meet the definition of violent felonies under the ACCA, and therefore Garcia is an armed career criminal and is not eligible for a sentence reduction. See Memorandum at 1.

         On August 11, 2016, the United States filed its Supplemental Government Response/Notice of Concession, filed August 11, 2016 (Doc. 17)(“Supplemental Memorandum”), stating that, “in another case[, ] the government has conceded that New Mexico's robbery statute is not a violent felony for purposes of the [ACCA].” Supplemental Memorandum at 1 (citing to United States v. Sanchez, No. CR 13-0961 JAP, No. CIV 16-0659 JAP/GBW (D.N.M. 2016)). The United States explains that its “initial response in this case was filed prior to the formation of a committee designed to uniformly determine Johnson [II] [§] 2255 matters, ” and that “the United States seeks to withdraw its argument as to non-retroactivity, as it has been learned subsequent to the filing of the initial response that the department has advised against making such procedural arguments.” Supplemental Memorandum at 1. In addition, the USPO filed its own Revised Sentencing Memorandum, filed August 18, 2016 (Doc. 19)(“Revised Memorandum”), stating that Garcia's robbery conviction is not a violent felony because the New Mexico robbery statute “does not require the level of force necessary to qualify as a violent felony under the elements clause, ” and that Garcia is thus eligible for resentencing. Revised Memorandum at 2. On August 18, 2016, based on the United States' concessions and the USPO's Revised Memorandum, the Magistrate Judge issued her first Proposed Findings and Recommended Disposition, filed August 18, 2016 (Doc. 20)(“First PFRD”), concluding that Garcia no longer has three predicate felonies to support a determination that he is an armed career criminal under the ACCA, and recommending that the Court vacate Garcia's sentence and set his case for resentencing as soon as possible. See First PFRD at 4.

         On September 28, 2016, the Court entered its MOO stating that, on July 26, 2016, in United States v. Barela, No. CR 15-3550 JB (“Barela”), the United States filed a response to that defendant's objections to his Presentence Report where it argued that New Mexico's robbery statute, N.M. Stat. Ann. § 30-16-2, is a violent felony for the purposes of the United States Sentencing Guidelines § 4B1.4 enhancement. See MOO at 1. The Court agreed with the United States' arguments in Barela, as set forth in the Memorandum Opinion and Order it entered in that case on September 16, 2016. See Memorandum Opinion and Order, filed September 16, 2016 (Doc. 44 in No. CR 15-3550)(“Barela MOO”). The Court noted that the United States has taken a different position in this case, so the Court posed four questions to the United States asking it to clarify its position, and asked Judge Martínez to prepare another PFRD analyzing the issues presented in Garcia's § 2255 Motion in the absence of the United States' concessions. See MOO at 4-6. The Court asked the United States:

1. If the Court holds that Defendant Phillip Angel Garcia has four predicate violent felonies under ACCA and that, even absent the possession of a deadly weapon by a prisoner, Garcia still has three useable predicate convictions, will the United States defend on appeal the Court's decision to use predicate convictions that Judge Conway and the USPO, at the time of sentencing, did not use? Will it defend the Court's procedure or will it confess error? The Court is having a hard time seeing why it should set aside a conviction if, at the new sentencing, it is going to still find that he has three violent predicate convictions.
2. If the Court determines that Johnson v. United States, 559 U.S. 133, 140 (2010)(“Johnson 1”), is not retroactive, will the United States defend that position or confess error?
3. If the Court determines that, in relevant part, the Florida battery statute in Johnson 1 cannot be distinguished from New Mexico's robbery offense, will the United States defend that position or confess error?
4. If the Court determines that New Mexico's robbery statute is a violent felony for ACCA purposes -- as the United States argued on July 27, 2016, in United States v. Barela -- will the United States defend that position on appeal or confess error? The Court is having a harder time ignoring the United States Court of Appeals for the Tenth Circuit decision, in United States v. Lujan, 9 F.3d 890 (10th Cir. 1993), than the parties and the USPO are apparently having.

         MOO at 4-5.

         1. The United States' Response to the MOO Addressing Barela.

         In its response to the MOO, the United States explains that it filed its Response in this case on May 16, 2016, and that, “[t]hereafter, the United States Attorney's Office formed a committee in [an] effort to uniformly respond to the substantial number of § 2255 motions that were being filed.” See Response to Memorandum Opinion and Order at 1, filed October 18, 2016 (Doc. 28)(“MOO Response”). The United States explains that it responded to the defendant's objections in Barela on July 27, 2016, which was before the aforementioned committee's determination that New Mexico's robbery offense at N.M. Stat. Ann. § 30-16-2 no longer qualifies as a violent felony pursuant to the holding in Johnson I. See MOO Response at 1 (“The United States declared its position [regarding New Mexico's robbery offense] in its filing of August 5, 2016 in the case of United States v. Sanchez, 13-CR-961, 16-CV-659.”). On August 11, 2016, the United States filed its Supplemental Memorandum in this case, “which aligned the government's position in the instant case to that in Sanchez.” MOO Response at 1-2. The United States explains that, regardless of the new position taken by the United States in this case, the United States' position in Barela related to whether New Mexico's robbery statute constitutes a crime of violence under the U.S.S.G. and not under the ACCA. See MOO Response at 2 (explaining that “Barela was not an ACCA case” and that “[t]he Court's determination, rather, hinged on the sentencing guidelines listing robbery as an enumerated offense”)(emphasis added). The United States maintains that, pursuant to the holding in Johnson I, a conviction under New Mexico's robbery statute does not qualify as a violent felony for ACCA purposes, see MOO Response at 2, but the United States “nonetheless, continues to agree with the Court that New Mexico's robbery offense should count as a crime of violence under the sentencing guidelines based on the distinguishable grounds that it is an enumerated offense in the commentary, ” MOO Response at 3 (citing United States v. Madrid, 805 F.3d 1204, 1207 (10th Cir. 2015)).

         In answer to the Court's specific questions in the MOO, the United States provides the following answers: (i) the United States will defend on appeal the Court's procedure to use the predicate convictions that Judge Conway and the USPO, at the time of sentencing, did not use, but will also stand by its concession that Garcia's prior conviction for robbery is not a violent felony for the ACCA's purposes; (ii) the United States' position is that the holding of Johnson I is retroactive and it will maintain this position on appeal; (iii) the United States' position is that New Mexico's robbery statute does not require Johnson I-level force and it will maintain this position on appeal; and (iv) the United States' position is that New Mexico's robbery statute is not a violent felony under the ACCA in light of Johnson I, which was issued after the United States Court of Appeals for the Tenth Circuit's decision in United States v. Lujan, 9 F.3d 890 (10th Cir. 1993), and it will maintain this position on appeal. See MOO Response at 2-3.

         2. The PFRD.

         In addition, pursuant to the MOO, Judge Martínez prepared her new PFRD considering Garcia's claims in his § 2255 Motion, notwithstanding the United States' concessions to those claims. See PFRD at 1. Judge Martínez first considered Garcia's claim that his conviction for possession of a deadly weapon by a prisoner can no longer be used as a conviction for a violent felony under the ACCA, because it falls within the residual clause, which the Supreme Court held was unconstitutionally vague in Johnson II. See PFRD at 7-8 (addressing Motion at 1, 12-15). Judge Martínez explained that, under the ACCA, an individual who violates § 922(g), e.g., being a felon in possession of a firearm or ammunition, and who has “three previous convictions . . . for a violent felony or a serious drug offense, ” will receive a mandatory, minimum 15-year sentence. 18 U.S.C. § 924(e). The statute defines the term “violent felony” as:

[A]ny crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that --
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosive, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B)(i)-(ii) (emphasis added). The emphasized clause is the “residual clause, ” and, in Johnson II the Supreme Court held that the residual clause “denies fair notice to defendants and invites arbitrary enforcement by judges, ” and, therefore, violates the Constitution of the United States of America's Due Process Clause. Johnson II, 135 S.Ct. at 2557. Judge Martínez agreed with Garcia that his conviction for possession of a deadly weapon by a prisoner can no longer be used as a conviction for a violent felony under the ACCA, because that conviction falls within the residual clause, which the Supreme Court found to be unconstitutionally vague in Johnson II. See PFRD at 8. Judge Martínez further concluded that Garcia's conviction for possession of a deadly weapon by a prisoner does not fall under § 924(e)(2)(B)(i), or the “force clause, ” because it does not have “as an element the use, attempted use, or threatened use of physical force against the person of another, ” and is not one of the enumerated offenses in § 924(e)(2)(B)(ii). PFRD at 8. Judge Martínez therefore concluded that, pursuant to the holding in Johnson II, this conviction can no longer be used to support a finding that Garcia is an armed career criminal. See PFRD at 8.

         Next, Judge Martínez considered whether, even without Garcia's conviction for possession of a deadly weapon by a prisoner, Garcia may still be subject to the ACCA based on his prior convictions for arson, burglary, and robbery. See PFRD at 8-18. Judge Martínez considered Garcia's argument that his conviction for robbery cannot be used as a predicate offense under any ACCA provision other than the residual clause, because Judge Conway did not consider the conviction as a predicate conviction at Garcia's sentencing. See PFRD at 8-13 (considering Garcia's argument in the Motion at 16). Judge Martínez concluded that it is not clear whether Judge Conway relied on Garcia's robbery conviction in his decision to apply the ACCA enhancement, noting that, while Garcia's PSR does not include his conviction for robbery as one of the three convictions used to trigger the ACCA enhancement, see PSR ¶ 24, at 10, the PSR nonetheless includes this conviction in Garcia's criminal history, see PSR ¶ 30, at 13. See also PFRD at 9. Judge Martínez further noted that Judge Conway, at sentencing, stated that Garcia was “a six-time convicted felon, ” Tr. at 6:5-6 (Conway), that the United States' Notice included the robbery offense as one of the qualifying prior convictions, see Notice at 2, and that Garcia admitted in the Plea Agreement that he had previously been convicted of robbery, see Plea Agreement at 5. See also PFRD at 9.

         Judge Martínez concluded that, even if Judge Conway did not rely on Garcia's robbery conviction for the ACCA enhancement, the Court must vacate Garcia's sentence, because his prior conviction for possession of a weapon by a prisoner is no longer valid as an ACCA-enhancing conviction, and the Court, therefore, must resentence Garcia, at which point the Court can rely on Defendant's robbery conviction. See PFRD at 10. Judge Martínez noted that Garcia cites to no authority that says that a court must discuss all of a defendant's prior convictions for an ACCA enhancement, instead of just the required three, or that, if a court fails to discuss all of a defendant's convictions, it may not use those prior convictions at resentencing. See PFRD at 10. Judge Martínez concluded that Garcia's reliance on the case McCarthan v. Warden, FCI Estill, 811 F.3d 1237, 1250 n.8 (11th Cir. 2016)(“McCarthan”), does not support Garcia's contention that his robbery conviction cannot now be used as a predicate offense under the ACCA because the United States failed to object to the sentencing court's decision to rely on convictions other than the robbery conviction for the ACCA enhancement. See PFRD at 11-13 (considering Garcia's argument in the Motion at 16). Judge Martínez explained that, in McCarthan, the United States Court of Appeals for the Eleventh Circuit concluded that the PSR's identification of the defendant's predicate convictions was sufficient to support an ACCA enhancement, even though neither the PSR nor the sentencing court identified which of the prior convictions are being used to support that enhancement. See PFRD at 12 (citing McCarthan, 811 F.3d at 1253-54). The Eleventh Circuit stated that

[the defendant] did not object to the PSR's failure to identify which of his prior convictions justified an ACCA enhancement[, ] [n]or did [the defendant] object to the sentencing court's adoption of the PSR, or its failure to identify specific prior convictions in support of its imposition of an ACCA enhancement[;] [o]n these facts, [the defendant] forfeited any objection to the sentencing court's failure to identify the specific convictions supporting his ACCA enhancement[;] [w]e must, therefore, assume that the district court relied on all of [the defendant's] ACCA-qualifying convictions in imposing [defendant's] ACCA enhancement.

McCarthan, 811 F.3d at 1253-54. Judge Martínez noted that such a situation was similar to this case's facts where, even though Garcia's PSR identifies which convictions were used for the probation officer's ACCA finding and does not specifically include the robbery conviction as one of those convictions, the PSR also includes Garcia's robbery conviction in the list of his prior convictions in the criminal history section. See PFRD at 12-13. Judge Martínez further relied on Judge Conway's statement that Garcia had six prior convictions and that the United States had filed a Notice to seek an enhanced sentence under the ACCA which included Garcia's robbery conviction. See PFRD at 13. Judge Martínez, therefore, concluded that the facts in McCarthan can support a finding that Judge Conway relied on all of Garcia's ACCA-qualifying convictions in imposing his ACCA enhancement. See PFRD at 13.

         Second, Judge Martínez concluded that, even if the McCarthan statements can be used to support Garcia's contention that his robbery conviction cannot now be used as a predicate offense under the ACCA because the United States failed to object to Judge Conway's decision to rely on other convictions for the ACCA enhancement, McCarthan is not binding precedent on the Court, and, regardless, the Eleventh Circuit vacated the panel's decision when granting a rehearing en banc. See PFRD at 13 (citing McCarthan v. Warden, FCI Estill, 2016 WL 3878151 (11th Cir. 2016)(“[I]t is ORDERED that this case will be reheard en banc. The panel's opinion is VACATED.”)). Judge Martínez, therefore, recommends rejecting Garcia's argument that his robbery conviction cannot be used to enhance his sentence under the ACCA because Judge Conway did not consider it as a predicate conviction at Garcia's sentencing. See PFRD at 13.

         Next, Judge Martínez considered Garcia's alternative argument that his robbery conviction cannot be used as a qualifying predicate offense under the ACCA, because it does not qualify under either of ACCA's non-residual clause categories of violent felonies. See PFRD at 14-18 (considering Garcia's argument in the Motion at 16-24). Judge Martínez first noted that Garcia's robbery conviction is not one of the enumerated offenses -- burglary, arson, or extortion -- in 18 U.S.C. § 924(e)(2)(B)(ii). See PFRD at 14. Judge Martínez then considered whether the robbery conviction satisfies the ACCA's force clause, which provides that a prior conviction is a “violent felony” if it “has as an element the use, attempted use, or threatened use of physical force against the person of another, ” 18 U.S.C. § 924(e)(2)(B)(i). PFRD at 14. Judge Martínez noted that New Mexico's robbery statute states: “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.” N.M. Stat. Ann. § 30-16-2. Judge Martínez applied the categorical approach, because the offense does not contain multiple elements listed in the alternative, and, therefore, looked only to the statutory definition of the offense and not to the particular facts underlying Garcia's conviction. See PFRD at 14-15 (citing United States v. Lujan, 9 F.3d at 891-92, which applied the categorical approach to New Mexico's robbery statute). Judge Martínez explained that, while in United States v. Lujan the Tenth Circuit held that New Mexico's robbery statute fit within ACCA's force clause, see 9 F.3d at 892, the Supreme Court in Johnson I clarified that the term “physical force” in § 924(e)(2)(B)(i) must be “strong physical force, ” “a substantial degree of force, ” or “violent force -- that is, force capable of causing physical pain or injury to another person.” Johnson I, 559 U.S. at 140 (emphasis omitted). Judge Martínez concluded that, because New Mexico's robbery statute does not require “strong physical force, ” “a substantial degree of force, ” or “violent force -- that is, force capable of causing physical pain or injury to another person, ” it does not constitute “physical force” under § 924(e)(2)(B)(i). PFRD at 15. Judge Martínez therefore recommended denying the United States' initial argument to the contrary, see Response at 3-5, noting that the United States later conceded the issue, see Supplemental Memorandum at 1.[1]

         Judge Martínez next considered the United States' initial contention that Johnson I does not apply retroactively and, therefore, the Court must look at the law at the time of Garcia's sentencing. See PFRD at 15-18 (citing Response at 2-3, and the Supplemental Memorandum, wherein the United States asks to withdraw the Response's argument, because “it has been learned subsequent to the filing of the [Response] that the department has advised against making such procedural arguments”). Judge Martínez noted that neither the Tenth Circuit nor the Supreme Court have held that Johnson I should apply retroactively. See PFRD at 16. Judge Martínez further explained that, because Garcia has successfully demonstrated constitutional error as to his sentence pursuant to the holding in Johnson II, he is entitled to resentencing, and the Tenth Circuit has held that courts shall apply current sentencing law at the time of resentencing, absent an ex post facto violation in which application of the new law to Garcia would disadvantage him. See PFRD at 17 (citing United States v. Ziegler, 39 F.3d 1058, 1063-64, n.2 (10th Cir. 1994); United States v. Vogt, 106 F.3d 414, at *4 (10th Cir. 1997)). In addition, Judge Martínez notes that, after the Supreme Court issued Johnson I, and before Johnson II, Garcia had no viable challenge to his robbery conviction, because Garcia's predicate convictions for possession of a deadly weapon by a prisoner and robbery would still have been viable under the residual clause as his third ACCA conviction. See PFRD at 18. Judge Martínez thus concluded that Johnson I should be applied to Garcia's case upon resentencing. See PFRD at 18.

         Finally, Judge Martínez addressed the issue whether, at resentencing, Garcia's robbery conviction can be used to find that he is a career offender under the U.S.S.G. See PFRD at 18-19. Judge Martínez noted that, while neither party raised this issue, the Court's order for additional briefing and an amended PFRD was based on the United States' arguments in Barela whether New Mexico's robbery offense is a violent felony under the U.S.S.G., and that the Court had asked Judge Martínez to discuss this issue. See PFRD at 18. Judge Martínez stated that, because it appears that Garcia has already served the maximum sentence of ten years imprisonment for his conviction under § 922(g), the Court may not need to consider Garcia's robbery offense with regard to the U.S.S.G. Id. at 19. Nevertheless, the Magistrate Judge explained that Garcia's prior convictions for arson and robbery are “crimes of violence” under the U.S.S.G., because they are listed as enumerated offenses under § 4B1.2(a)(2), both in the accompanying commentary and, as of August 1, 2016, in the U.S.S.G.'s text. PFRD at 19 n.4. Therefore, Judge Martínez concluded that, to the extent the U.S.S.G. will apply at Garcia's resentencing, his robbery offense would be considered a crime of violence under the U.S.S.G. See PFRD at 19.

         3. Garcia's Objections.

         At the outset, the Court notes that Garcia has agreed with Judge Martínez' PFRD and her recommendation that it grant his Motion. See Objections at 1. Nevertheless, Garcia states that he “objects to certain findings the magistrate judge made in the course of reaching [her] ultimate correct recommendation.” Objections at 1. The Court, therefore, must consider each of Garcia's objections and conduct a de novo review of those portions of the PFRD to which Garcia objects. See 28 U.S.C. § 636(b)(1)(C). This de novo review implicates the PFRD's ultimate outcome, because the extent of the Objections implicates the analysis Judge Martínez used to reach her conclusions.

         a. Consideration of Garcia's Response and Objections to the Court's MOO.

         Garcia's first objection is that the Court should consider Garcia's response and objections filed in response to the MOO directing the United States to answer questions and Judge Martínez to produce an amended PFRD without consideration of the United States' concessions. See Objections at 3-4 (citing Mr. Garcia's Response and Objections to District Court's Memorandum Opinion and Order, filed October 14, 2016 (Doc. 27)(“MOO Objections”)).[2] After the Court entered its MOO on September 28, 2016, Garcia addressed a Letter to the Court, filed October 2, 2016 (Doc. 24)(“Letter”), and a document called Mr. Garcia's Objections to Memorandum and Order, filed October 7, 2016 (Doc. 26)(“Unsigned Objections”), neither of which Garcia's counsel signed. Then, on October 14, 2016, Garcia's counsel filed Garcia's MOO Objections, which also objected to the Court's MOO. According to the Objections, Judge Martínez erred by not relying on Garcia's documents filed in response to the MOO. See Objections at 3-4. Garcia thus seems to request that the Court incorporate Garcia's arguments in those filings that “Johnson I would apply at a new sentencing . . . [and] Lujan is not applicable to this case.” Objections at 3-4. The Court, at the outset, notes that it specifically directed Judge Martínez to “produce another PFRD that ignores the [United States'] concessions and analyzes all issues [in Garcia's § 2255 Motion] independently, ” MOO at 5, which did not encompass any new claims or additional support that Garcia presented in response to the Barela MOO.

         b. The United States' Waiver of Reliance on Garcia's Robbery Conviction.

         Next, Garcia contends that he “has demonstrated the government waived reliance on [Garcia's] conviction to establish his ACCA eligibility” and that Judge Martínez erred by discounting the waiver principles discussed in McCarthan on the ground that McCarthan was vacated. Objections at 4. Garcia therefore contends that “the vacating of McCarthan does not undermine the conclusion that the government's failure to object to the PSR's and the district court's omission of the robbery conviction as an ACCA predicate waived [the government's] reliance on that conviction as an ACCA predicate now.” MOO Objections at 5. Garcia further contends that, “[i]n any event, given the government's concession that [Garcia's] robbery conviction is not a valid ACCA predicate, it has certainly now waived its reliance on that conviction.” Objections at 5.

         c. Garcia's Failure to Object to the Inclusion of His Robbery Conviction.

         Garcia next contends that he did not forfeit his challenge to the inclusion of his robbery conviction as an ACCA predicate by failing to object to Judge Conway's failure to include that conviction as an ACCA predicate at sentencing. See Objections at 5-6. Garcia contends that it was not his obligation to draw Judge Conway's attention to any error regarding the use of his robbery conviction as an ACCA-predicate conviction and that, instead, it was the United States' responsibility to object. See Objections at 5. Garcia states that the facts in McCarthan are different, because the PSR there did not specify which convictions were ACCA predicates, so the defendant there forfeited an objection to the use of any particular conviction as an ACCA predicate, because he did not challenge the failure to list the convictions that rendered him ACCA eligible. See Objections at 6. Here, however, Garcia contends that, because the PSR specified three convictions as ACCA predicate offense, not including the robbery conviction, Garcia had no obligation to object to the PSR, because he knew Judge Conway would rely upon the three specified convictions to impose the ACCA sentence. See Objections at 5-6.

         d. Judge Conway's Reliance on Garcia's Robbery Conviction.

         Next, Garcia contends that Judge Conway “definitely did not rely on [Garcia's] robbery conviction to justify [Garcia's] ACCA sentence.” Objections at 6. Garcia contends that Judge Martínez erred in concluding that it is not clear whether Judge Conway relied on Garcia's robbery conviction as an ACCA predicate and that “[t]he record is very clear that this court did not do so.” Objections at 6. Garcia notes that the PSR listed three convictions as ACCA predicates, but did not list the robbery conviction, that the United States did not object to its absence, and that Judge Conway did not mention the United States' Notice that it intended to rely on Garcia's robbery conviction for an ACCA enhancement. See Objections at 6.

         e. Whether Garcia is Entitled to Resentencing Under Current Law.

         Garcia states that he agrees with Judge Martínez that Garcia shall be resentenced pursuant to the law in effect at the time of resentencing. See Objections at 9-10. Garcia, however, further argues:

Thus, if this Court decides the government has not waived submission of the robbery conviction as an ACCA predicate, this court must apply [Johnson I] to determine whether New Mexico's third-degree robbery statute is a violent felony. Another reason to do so is because [Johnson I] is retroactive in any case. The magistrate judge does not mention that point. But it is an alternative obvious way to reach the same ultimate result and this court expressed concern about the issue.

Objections at 11.

         f. Whether Robbery Requires Enough Force to Satisfy the Force Clause.

         Garcia contends that, while Judge Martínez correctly concludes that New Mexico's third-degree robbery offense does not require sufficient use of force to satisfy the “physical force” clause of § 924(e)(2)(B)(i), Judge Martínez does not explain why New Mexico's third-degree robbery offense does not meet that requirement, and Garcia thus asks the Court to consider his arguments in favor of this conclusion. See Objections at 12-15 (citing to New Mexico cases which explain that, to constitute robbery, the force necessary must only be enough to overcome the “resistance of attachment”).

         g. Consideration of United States v. Lujan.

         Next, Garcia states that he agrees with Judge Martínez that Johnson I trumps the Tenth Circuit's decision in United States v. Lujan, but asks the Court to “consider the more expansive arguments [Garcia] has made demonstrating that this court may not apply Lujan to his case.” Objections at 16. Garcia argues that the Tenth Circuit in United States v. Lujan did not discuss whether New Mexico robbery requires a particular level of force, see Objections at 16-18, and that United ...


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