United States v. Serrano

          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 ...