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United States v. Salazar

United States District Court, D. New Mexico

February 14, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RICKY SALAZAR, Defendant.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          STEPHAN M. VIDMAR United States Magistrate Judge.

         THIS 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].[1] 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.

         Background

         Salazar 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, 55].

         The 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.[2] 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 2.

         Proceeding 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 sought.

         Motions under § 2255 and Johnson II

         Pursuant 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 States.”

         In 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 to another.

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.”

         The 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.

         Soon 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.

         Salazar's 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 another.

§ 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 violence.”

         Salazar 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.

         In 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).

         These 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.

         [Doc. 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 ...


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