United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR United States Magistrate Judge.
MATTER is before me on Defendant Salazar's pro se motion
to correct his sentence under 28 U.S.C. § 2255, filed
March 7, 2016. [CV Doc. 1], [CR Doc. 63]. The United States
responded on April 4, 2016. [CV Doc. 5], [CR Doc. 65].
Salazar replied pro se on April 13, 2016. [CV Doc. 7], [CR
Doc. 67]. On May 19, 2016, after an attorney appeared on his
behalf, Salazar filed his Supplemental Counseled Brief
Related to His Petition to Correct His Illegal Sentence. [CV
Doc. 14], [CR Doc. 74]. The United States filed its
supplemental response on June 2, 2016. [CV Doc. 15], [CR Doc.
75]. The parties submitted additional briefs in response to
an Order to Show Cause. [Docs. 18-21, 24]. The Honorable
Martha Vázquez, United States District Judge, referred
this matter to me for findings and a recommended disposition.
[Doc. 6]. Having considered the briefing, the
relevant portions of the underlying criminal record, the
relevant authorities, and being otherwise fully advised in
the premises, I find that Salazar's underlying
convictions for felony Aggravated Battery and felony
Aggravated Battery Against a Household Member, NMSA 1978,
§§ 30-3-5(C) and 30-3-16(C), qualify as crimes of
violence under the “force clause” (irrespective
of the “residual clause”) of U.S. Sentencing
Guidelines Manual (“Guidelines” or
“Sentencing Guidelines”) § 4B1.2(a) (2009).
Therefore, his argument that the residual clause is
retroactively unconstitutional under Johnson v. United
States need not be addressed. Even if the residual
clause were retroactively unconstitutional, a matter that I
decline to decide, Salazar would still not be entitled to
re-sentencing. His Motion should be denied.
was indicted in 2008 on two counts of possession with intent
to distribute methamphetamine, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(B), (b)(1)(C) and 18 U.S.C.
§ 2. [CR Doc. 16] at 1-2. At Salazar's request,
Judge Vázquez ordered a Form 13 Pre-Conviction
Pre-Sentence Report. [CR Doc. 33]. Thereafter, the parties
entered into a plea agreement under Fed. R. Crim. P.
11(c)(1)(C). [CR Doc. 45]. Pursuant to the plea agreement,
Salazar pleaded guilty to one count of possession with intent
to distribute and stipulated that the appropriate sentence
should be 144 months' incarceration. [CR Docs. 45, 54,
United States Probation Office (“USPO”) completed
a full Pre-Sentence Investigation Report (“PSR”).
The PSR calculated Salazar's Total Offense Level as 34
and his Criminal History Category as VI, yielding a guideline
range of 262-327 months. PSR ¶¶ 26, 53; see
Guidelines Sentencing Table. USPO determined that Salazar was
a career offender pursuant to § 4B1.1 of the Sentencing
Guidelines because of two prior New Mexico state court
convictions, one for felony Aggravated Battery and one for
felony Aggravated Battery Against a Household Member. PSR
¶ 24. Ultimately, Judge Vázquez imposed a
sentence of 144 months' imprisonment, the term to which
Salazar had stipulated in the plea agreement. [CR Doc. 52] at
pro se, Salazar filed a motion to reduce his sentence
pursuant to 18 U.S.C. § 3582, on August 21, 2015, which
remains pending. [CR Doc. 57]. Otherwise, the instant
petition is the only post-conviction relief Salazar has
under § 2255 and Johnson II
to 28 U.S.C. § 2255(a), a “prisoner in
custody” pursuant to a federal conviction may
“move the court” “to vacate, set aside or
correct the sentence” if it “was imposed in
violation of the Constitution or laws of the United
Johnson v. United States, 135 S.Ct. 2551, 2557
(2015) (“Johnson II”), the Supreme Court
held that the so-called residual clause of the definition of
“violent felony” in the Armed Career Criminal Act
(“ACCA”) was unconstitutionally vague. The ACCA
required imposition of a minimum 15-year term of imprisonment
for defendants convicted of unlawful possession of a firearm
under 18 U.S.C. § 922(g), who have three prior
convictions for violent felonies or drug offenses. The ACCA
defined “violent felony” as follows:
any crime punishable by imprisonment for a term exceeding one
year . . . 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
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
18 U.S.C. § 924(e)(2)(B) (emphasis added). The closing
words of this definition, italicized above, have come to be
known as the “residual clause.”
Court explained that the residual clause left “grave
uncertainty” about “deciding what kind of conduct
the ‘ordinary case' of a crime involves.”
Johnson II, 135 S.Ct. at 2258. That is, the residual
clause “denie[d] fair notice to defendants and
invite[d] arbitrary enforcement by judges” because it
“tie[d] the judicial assessment of risk to a judicially
imagined ‘ordinary case' of a crime, not to
real-world facts or statutory elements.” Id.
at 2557. Second, the ACCA's residual clause left
“uncertainty about how much risk it takes for a crime
to qualify as a violent felony.” Id. at 2558.
By combining these two indeterminate inquiries, the Court
held, “the residual clause produces more
unpredictability and arbitrariness than the Due Process
Clause tolerates.” Id. On that ground it held
the residual clause void for vagueness. Id.
thereafter, the Court determined that its ruling in
Johnson II was substantive (as opposed to
procedural) and, therefore, had “retroactive effect in
cases on collateral review.” Welch v. United
States, 136 S.Ct. 1257, 1268 (2016). Accordingly,
Welch opened the door for individuals sentenced
under the residual clause of the ACCA's violent-felony
definition to move to vacate their sentences as
unconstitutional under § 2255.
sentence, however, was not enhanced under the ACCA, nor does
he claim that it was. He was sentenced under § 4B1.1 of
the Sentencing Guidelines. This section is known as the
career offender guideline. Like the ACCA, the career offender
guideline prescribes harsher sentences for individuals with
prior convictions for “crimes of violence.” Also,
like the ACCA, the Guidelines' definition of “crime
of violence” includes a residual clause.
(a) The term “crime of violence” means any
offense under federal or state law, punishable by
imprisonment for a term exceeding one year, 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
§ 4B1.2(a) (2009) (emphasis added). The closing words of
this definition, italicized above, have come to be known as
the “residual clause” of the career offender
guideline's definition of “crime of
reasons that because the residual clause in § 4B1.2(a)
mirrors the residual clause in the ACCA, the Supreme
Court's holding in Johnson II (that the
ACCA's residual clause is unconstitutionally vague)
should apply equally to § 4B1.2(a). In other words,
Salazar asks the Court to extend Johnson II beyond
the ACCA to the career offender guideline. There is some
support for his position.
United States v. Madrid, the Tenth Circuit invoked
Johnson II to invalidate the residual clause of the
career offender guideline. 805 F.3d 1204, 1210 (10th Cir.
2015). However, Madrid was not a collateral attack
on a sentence; it was a direct appeal. This distinction
matters because, in order to rely on Madrid for the
instant collateral attack, Salazar must show that the rule in
Madrid is retroactive. See Welch, 136 S.Ct.
at 1264 (describing the standard for determining the
retroactivity of new constitutional rules of criminal
procedure). There is no Welch corollary expressly
holding that Madrid is or is not retroactive, and it
is no surprise that the parties dispute whether
Madrid should apply retroactively. Compare
[Doc. 14] at 7-14 (Salazar's position), with
[Doc. 15] at 2-6 (the United States' position).
issues-whether Johnson II should be extended to the
career offender guideline, and if so, whether such ruling
should apply retroactively-are currently before the Supreme
Court in Beckles v. United States ( S.Ct. No.
15-8544). I ordered the parties to show cause why
Salazar's § 2255 motion should not be stayed pending
the Supreme Court's ruling in Beckles.
17]. The United States urges a stay. [Doc. 18]. It argues
that it would be prejudiced if the Court were to grant
Salazar's motion and resentence him to a lesser term,
only for the Supreme Court to decide Beckles adverse
to Salazar's position. Id. at 3. Salazar argues
that he would be prejudiced by a stay because he likely would
be eligible for immediate release if the Court were to grant
his motion. See [Doc. 19] at 1-3. I agree that this
case should not be stayed pending a ruling in
Beckles. If Salazar had been sentenced pursuant to
the residual clause and if he were likely eligible for
immediate release, it would be unjust to delay a ruling.
See, e.g., United Statesv. Smith, No.
16-8091 (10th Cir. Nov. 9, 2016) (holding same). However,
having thoroughly examined Salazar's arguments, I find