United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION
WILLIAM P. LYNCH UNITED STATES MAGISTRATE JUDGE
Robert
Serrano timely filed, with permission from the Tenth Circuit,
his Motion for a Second 2255 Motion In Accordance with
United States v. Johnson Order Issued by Supreme
Court of Unconstitutional Issues. (CV Doc. 1; CR Doc.
34.)[1]
Counsel for Serrano then filed a Supplement to Motion to
Vacate and Correct Sentence Pursuant to 28 U.S.C. §
2255. (Doc. 37.) Serrano contends that he is entitled to
resentencing because two of his previous felony convictions
no longer qualify as “violent” felonies under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(1). (Id.) The United States argues
that Serrano is not entitled to relief. I recommend that the
Court deny Serrano's motion and deny a certificate of
appealability.
Background
On
December 7, 2011, Serrano pled guilty to one count of
possessing a firearm in violation of 26 U.S.C. §§
5845(a)(2), 5861(d), and 5871 (a sawed off shotgun), and one
count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2).[2] At sentencing on August 6, 2012, the Court
adopted the presentence report (“PSR”) and found
that Serrano was an armed career criminal pursuant to the
ACCA. (See Doc. 32 at 1 (the Court imposed a
sentence of 180 months' incarceration for being a felon
in possession of a firearm, which is the statutory minimum
sentence under the ACCA; this sentence would exceed the
statutory maximum if Serrano were not found to be an armed
career criminal).)
The PSR
calculated Serrano's offense level as 31, with a criminal
history category VI, and a resulting guidelines range of 188
to 235 months. (Doc. 40-1 at 16.) Serrano was classified as
an armed career criminal under 18 U.S.C. § 924(e)(1)
because he was at least eighteen years old at the time of the
instant offense, was a felon in possession of a firearm, and
had at least three prior convictions for crimes of violence
or drug trafficking crimes. Serrano's relevant criminal
history includes the following felony convictions: 1)
unlawful delivery of marijuana in 1985; 2) armed robbery in
violation of NMSA § 30-16-2 in 1993; 3) trafficking
cocaine and conspiracy to traffic cocaine in 2000; and 4)
aggravated battery against a household member in violation of
NMSA § 30-3-16 in 2005. (Id. at 8-11.) Serrano
was ultimately sentenced to 180 months' of incarceration,
pursuant to a Federal Rule of Criminal Procedure 11(c)(1)(C)
plea agreement.
Pursuant
to 18 U.S.C. § 924(a)(2), a person convicted of being a
felon in possession of a firearm in violation of §
922(g) may fined, imprisoned for not more than ten years, or
both, unless that person is deemed an armed career criminal
pursuant to § 924(e)(1), in which case that person shall
be sentenced to at least fifteen years' imprisonment.
Discussion
Serrano
concedes that he has two prior felony convictions for drug
trafficking offenses (Doc. 44 at 9), but argues that two of
his underlying felony convictions for armed robbery and
aggravated battery against a household member no longer
qualify as predicate offenses under the ACCA. To qualify as
an armed career criminal, an individual must have
“three previous convictions . . . for a violent felony
or a serious drug offense, or both . . . .” 18 U.S.C.
§ 924(e)(1). Because I recommend that the Court conclude
that Serrano's conviction for armed robbery qualifies as
a violent felony, I do not address the aggravated battery
against a household member conviction. Serrano's
convictions for armed robbery and the two drug trafficking
offenses are sufficient to categorize him as an armed career
criminal under the ACCA.
A
“violent felony” is any crime punishable by
imprisonment for more than one year and:
(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). Subparagraph (B)(i) is
commonly known as the force clause, while (B)(ii) contains
the enumerated offenses clause and the “residual
clause.” The residual clause reads: “. . .
otherwise involves conduct that presents a serious potential
risk of physical injury to another.” Id.
In
Johnson v. United States, the Supreme Court held
that the residual clause of the ACCA is unconstitutionally
vague. 576 U.S. __, 135 S.Ct. 2551, 2563 (2015). The Supreme
Court announced that Johnson would apply
retroactively on collateral review in Welch v. United
States, reasoning that Johnson announced a
substantive new rule. __ U.S. __, __, 136 S.Ct. 1257, 1264-65
(2016).
Serrano's
challenged conviction for armed robbery does not fall within
the enumerated offenses clause.[3] To support Serrano's
classification as an armed career criminal, it must fall
under the force clause. The question is whether New Mexico
armed robbery “has as an element the use, attempted
use, or ...