United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Defendant Martin Michael
Ybarra's (“Defendant's”) Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C.
§ 2255. Doc. 1. Defendant seeks to have
his conviction and sentence set aside pursuant to the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015) (Johnson II), which
invalidated the residual clause of the Armed Career Criminal
Act (“ACCA”) as unconstitutionally vague under
the Fifth Amendment Due Process Clause. The Court has
satisfied itself that Defendant's Motion is limited to
only matters of law, and its disposition requires no further
factual development or evidentiary hearing. Having reviewed
the pleadings and record before the Court, as well as the
relevant law, the Court recommends that Defendant's
§ 2255 Motion be denied.
24, 2008, pursuant to a Plea Agreement under Federal Rule of
Criminal Procedure 11(c)(1)(C), Defendant pled guilty to an
Indictment charging him with being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). CR Doc. 17 & 18. According to
Defendant's Presentence Report, his base offense level
was determined to be 33, because he was found to qualify as
an armed career criminal under the ACCA. Doc. 2, Ex.
1 ¶ 48. After a three-level reduction for acceptance of
responsibility, his total offense level was calculated at 30.
Id. ¶ 49-51. With a criminal history category
of V and the ACCA's fifteen-year mandatory minimum of
incarceration, his guideline range became 180-188 months.
Id. ¶ 98-99.
to the Presentence Report, Defendant qualified as an armed
career criminal based upon three prior convictions in the
United States District Court for the District of California
for federal bank robbery in case number CR 87-0373. Doc.
2, Ex. 1 ¶¶ 36, 48, 68. Defendant had also
previously been convicted of aggravated assault with a deadly
weapon, id. ¶ 36, but his Presentence Report
suggests that it was his federal bank robbery convictions
alone that qualified him as an armed career criminal.
Id. ¶ 48.
indictment issued in Defendant's 1987 District of
California federal bank robbery case, attached to the
Government's response brief, reveals that Defendant was
charged with nine counts of federal bank robbery in violation
of 18 U.S.C. § 2113(a). See Doc. 7, Ex. 1. Each
count charged him with federal bank robbery “by force,
violence, and intimidation.” Doc. 7,
Ex. 1 at 1-9 (emphasis added). According to the judgment
issued by the United States District Court for the District
of California, Defendant ultimately pled guilty to Counts 1,
2, and 3 of the indictment and was sentenced to eighteen
years custody as to each count to be served concurrently.
Doc. 7, Ex. 2.
instant case, Defendant entered into a Plea Agreement on June
24, 2009, in which he and the Government agreed, pursuant to
Federal Rule of Criminal Procedure 11(c)(1)(C) and U.S.S.G.
§ 6B1.2(c)(2), that “the appropriate sentence in
this case is 180 months.” CR Doc. 17 at 4.
Defendant agreed in his Plea Agreement to waive his right to
appeal or to collaterally attack his conviction under §
2255, except on the issue of ineffective assistance of
counsel. CR Doc. 17 at 5. While the language of the
Agreement does not explicitly mention application of the
ACCA, the parties do expressly acknowledge in the Agreement
that Defendant was subject to “imprisonment for a
period of not less than fifteen (15) years nor more than
life.” CR Doc. 17.
April 13, 2010, the Honorable Martha Vazquez of this District
accepted the parties' Plea Agreement and sentenced
Defendant to the stipulated sentence of 180 months
imprisonment. CR Doc. 21. The Court filed its
Judgment in this case on April 21, 2010. See CR Doc.
22. Defendant, having waived his right to do so, did not
appeal his sentence. See CR Doc. 17 at 5.
instant Motion is Defendant's first attempt to
collaterally attack his sentence. Initially, he argued that
his predicate offenses for “three prior California
state convictions for bank robbery, ” were
“likely classified as violent felonies by the district
court under the unconstitutionally vague residual clause of
the definition of ‘violent felony, 18 U.S.C. §
924(2)(2)(B)(ii).[']” Doc. 1 at 1-3. After
the Government clarified in its response brief that the
relevant predicate offenses were convictions for
federal bank robbery under 18 U.S.C. § 2113(a),
Defendant revised his argument in his reply brief to comport
with the Presentence Report. See Doc. 9. Defendant
now argues that following the invalidation of the Act's
residual clause, federal bank robbery, 18 U.S.C.
§ 2113(a), is categorically not a violent felony under
the ACCA. See id.
ACCA provides that a person convicted of violating §
922(g) who has three prior convictions for a “violent
felony” or “serious drug offense” is
subject to a minimum term of imprisonment of fifteen years.
18 U.S.C. § 924(e)(1). Prior to the demise of the
residual clause in Johnson II, 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 to denote the
now-invalidated residual clause). Subpart (i) of §
924(e)(2)(B) is often referred to as its “force clause,
” while the initial, unitalicized portion of subpart
(ii) is known as the “enumerated clause.”
See Johnson, 135 S.Ct. at 2556. It is the
final italicized clause within subpart (ii) that the Supreme
Court found to be unconstitutionally vague in Johnson II.
See id. at 2557, 2563. Notably, the Court left intact
both the force clause and the enumerated clause.
Welch v. United States, 136 S.Ct. 1257 (2016), the
Supreme Court announced that Johnson II applies
retroactively to ACCA cases on collateral review, reasoning
that the decision announced a new substantive rule.
Id. at 1264-65. As a result, individuals whose
predicate convictions qualified as “violent
felonies” under only the ACCA's invalidated
residual clause are now entitled to relief under 28 U.S.C.
§ 2255. In contrast, those individuals whose predicate
offenses qualify as “violent felonies” under
either the ACCA's force clause or enumerated clause are
not entitled to relief.
the Government insists that Defendant's federal bank
robbery convictions are violent felonies under the ACCA's
force clause - that is, these offenses have “as an
element the use, attempted use, or threatened use of physical
force against the person of ...