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United States v. Kirby

United States District Court, D. New Mexico

February 16, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ROMAN KIRBY, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY B. WORMUTH United States Magistrate Judge.

         This matter is before the Court on Defendant's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Doc. 1.[1] Defendant seeks to have his conviction and sentence set aside pursuant to the Supreme Court's decision in Johnson v. United States, which struck down the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutionally vague under the Fifth Amendment Due Process Clause. 135 S.Ct. 2551 (2015). See generally docs 1, 12. Having reviewed the pleadings and record before the Court, I recommend denying the Motion.

         I. Background

         Defendant pled guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1) on August 30, 2011. Cr. docs. 40, 41. Ordinarily, this offense carries a maximum term of imprisonment of ten years. 18 U.S.C. § 924(a)(2). However, the ACCA provides that a defendant convicted of being a felon in possession of a firearm faces an enhanced sentence where he has three or more previous convictions for a “violent felony or a serious drug offense, or both, committed on occasions different from one another[.]” Id. § 924(e)(1). Specifically, defendants with three such previous convictions are subject to a maximum sentence of life imprisonment and a minimum of fifteen years imprisonment. Id.; see also Logan v. United States, 552 U.S. 23, 27 (2007). At the time of Defendant's sentencing, the ACCA defined “violent felony” as 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 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 italicized portion is known as “the residual clause” of the ACCA, which the Supreme Court struck down as unconstitutional under the void-for-vagueness doctrine in its Johnson decision. See 135 S.Ct. at 2557-61.[2]

         After Defendant pled guilty to being a felon in possession of a firearm, the United States Probation Office prepared a presentence report (“PSR”) to aid the Court in sentencing. The PSR included the finding that Defendant had three prior convictions for violent felonies, qualifying him as an armed career criminal under the ACCA. PSR ¶ 24. Consequently, he qualified for the increased statutory punishment under the ACCA and the sentencing guideline enhancement under U.S.S.G. § 4B1.4(b). Additionally, Defendant's base offense level was automatically set at 34[3] because Defendant possessed the firearm in connection with a crime of violence-namely, one count of Aggravated Battery Against a Household Member and two counts of Aggravated Assault Against a Household Member, although those state court charges were dismissed in light of the pending federal charge. Id.

         Prior to sentencing, both Defendant and the United States submitted sentencing memoranda agreeing with the PSR's findings that Defendant qualified as an armed career offender under the ACCA, that his total offense level was 31 with a criminal history category of VI, and that, as a result, the applicable sentencing guideline range was 188-235 months. Cr. doc. 46 at 2; cr. doc. 48 at 1-2. A sentencing hearing was held on January 12, 2012, during which the Court accepted Defendant's guilty plea and adopted the findings of the undisputed PSR. Cr. docs. 49, 50. With a minimum required sentence of 180 months and a guideline range of 188-235 months, Defendant was sentenced to 188 months of imprisonment and five years of supervised release. See id.

         Defendant's past convictions that were classified in the PSR as “violent felonies” justifying his designation as an armed career criminal include: (1) Aggravated Assault on a Peace Officer (Fourth Degree Felony) (Eighth Judicial District Court, Colfax County, New Mexico, case number CR-92-122); (2) Shooting at or from a Motor Vehicle (Great Bodily Harm) (Second Degree Felony) (Second Judicial District Court, Albuquerque, New Mexico, case number D-202-CR-9600872); and (3) Attempt to Commit a Felony, to Wit: First Degree Murder (Second Degree Felony) (Second Judicial District Court, Albuquerque, New Mexico, case number D-202-CR-9702343). PSR ¶ 24. The PSR also reflects convictions for Trafficking (by Possession with Intent to Distribute) (Second Degree Felony), Bribery of a Witness (Retaliation) (Fourth Degree Felony), and Possession of a Controlled Substance with Intent to Distribute (Methamphetamine) (Third Degree Felony), each of which contributed three criminal history points under U.S.S.G. § 4A1.1(a). PSR ¶¶ 30, 32, 34.

         II. Legal Standard

         Whether the criminal convictions underlying Defendant's ACCA enhancement qualify as “violent felonies” depends on whether they satisfy the definition of “violent felony” under the remaining clauses of the ACCA, now that the residual clause has been struck down as unconstitutional. See 18 U.S.C. § 924(e)(2)(B).

         In making its determination, the Court should consider the offense “generically, that is to say, . . . in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. U.S., 553 U.S. 137, 141 (2008). This “categorical approach” requires the Court to “consult only the fact of conviction and the statutory definition of the prior offense, and [] not generally consider the particular facts disclosed by the record of conviction.” United States v. Ramon Silva, 608 F.3d 663, 669 (10th Cir. 2010) (internal quotations omitted); see also Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). In other words, the categorical approach requires the Court to presume that Defendant's conviction under a given statute “rested upon nothing more than the least of the acts criminalized, before determining whether those acts are encompassed by the generic federal offense.” Moncrieffe v. Holder, 133 S.Ct. 1678, 1680 (2013) (alterations and citation omitted).

         However, this focus on the minimum culpable conduct that would satisfy the elements of the statute “is not an invitation to apply ‘legal imagination' to the state offense; there must be a ‘realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.'” Id. at 1684-85 (quoting Gonzales v. Duenas -Alvarez, 549 U.S. 183, 193 (2007)). “Decisions from the state supreme court best indicate a ‘realistic probability, ' supplemented by decisions from the intermediate-appellate courts.” United States v. Harris, __ F.3d __, No. 16-1237, 2017 WL 34458, at *3 (10th Cir. Jan. 4, 2017).

         The Supreme Court explained in Johnson v. United States, 559 U.S. 133, 140 (2010)[4]that the term “physical force” as used in the ACCA “means violent force-that is, force capable of causing physical pain or injury to another person.” (Emphasis in original.)

         Nonetheless, the force required to satisfy that element need not be sufficient to cause serious injury-it “might consist . . . of only that degree of force necessary to inflict pain-a slap in the face, for example.” Id. at 1272. Therefore, in evaluating whether Defendant's past convictions under New Mexico law constitute violent felonies under the ACCA, the Court must first consider whether each state statute that he violated necessarily proscribes conduct that “has as an element the use, attempted use, or threatened use of” violent force against the person of another. If so, it is categorically a “violent felony” under the elements clause of the ACCA.

         If, however, the statutory definition of any of Defendant's prior offenses is broader than the ACCA's definition of “violent felony” and the prior offense is “divisible, ” the Court will then apply what is known as a “modified-categorical approach.” Ramon Silva, 608 F.3d at 669; see also Mathis, 136 S.Ct. at 2249, 2256. Under this approach, the Court should consult “charging documents and documents of conviction to determine whether the defendant in a particular case was convicted of an offense that qualifies as a violent felony.” Id. Any three such felonies may validly underlie the application of the ACCA enhancement. 18 U.S.C. § 924(e)(2)(B)(i).

         Additionally, while the sentencing court imposed the ACCA enhancement on the basis of three predicate “violent felony” offenses, a “serious drug offense” may also underlie the application of the ACCA enhancement. Id. § 924(e)(1). The United States raises one of Defendant's past drug trafficking offenses as a potential alternative predicate for the ACCA enhancement on the basis that it qualifies as a “serious drug offense.” Doc. 8 at 7.

         The ACCA defines “serious drug offense, ” in pertinent part, as “an offense under State law, involving . . . possessing with intent to . . . distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law[.]” 18 U.S.C.A. § 924(e)(2)(A)(ii). Therefore, if the Court ultimately finds that any one of the three predicate “violent felony” offenses qualifying Defendant as an armed career criminal at sentencing is no longer a violent felony post-Johnson II, it must then consider whether Defendant has any combination of three prior offenses that are either serious drug offenses or violent felonies justifying the ACCA enhancement.

         III. Analysis

         Defendant challenges his sentence on the basis that, after Johnson II, his past criminal convictions identified in the PSR as predicate offenses compelling the ACCA enhancement no longer qualify as “violent felonies” under the remaining clauses of the ACCA. Doc. 1 at 4; see generally doc. 12. He argues that he therefore does not qualify as an armed career criminal and is entitled to be resentenced without the ACCA enhancement. Doc. 12 at 3, 28. Each of Defendant's predicate criminal convictions for his armed career criminal designation will be addressed in turn to determine whether the ACCA enhancement was properly applied in light of Johnson II.

         As a preliminary matter, Defendant's past offenses identified in the PSR as qualifying him as an armed career criminal clearly do not fall under the clause enumerating the specific felonies of “burglary, arson, or extortion, ” or those “involv[ing] use of explosives.” 18 U.S.C. § 924 (e)(2)(B)(ii); see also PSR ¶ 24.[5]Therefore, the question before the Court is whether at least three of Defendant's past convictions qualify as violent felonies under the “elements clause”-that is, whether each conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another[.]” Id. § 924 (e)(2)(B)(i).

         Finally, the United States has also identified two of Defendant's other past convictions as alternative predicate offenses for the ACCA enhancement: Bribery of a Witness (Retaliation), in violation of N.M.S.A. § 30-24-3, and Trafficking (Possession with Intent to Distribute), in violation of N.M.S.A. § 30-31-20(A)(3). Analysis of the bribery offense requires the Court to evaluate whether the offense either matches the generic offense of “extortion, ” as listed in 18 U.S.C. § 924 (e)(2)(B)(ii), or otherwise qualifies as a “violent felony” under the elements clause. Analysis of the trafficking offense requires the Court to determine whether that crime categorically meets the definition of “serious drug offense” under 18 U.S.C. § 924(e)(2)(A)(ii). The undersigned will turn to these alternative predicate offenses after first addressing whether the offenses identified at sentencing as the basis for the ACCA enhancement remain “violent felonies” in light of Johnson II.

         A. Aggravated Assault on a Peace Officer

         It is undisputed that Defendant was convicted of Aggravated Assault on a Peace Officer pursuant to a guilty plea in November 1992. Doc. 8-1 at 1-3; see also doc. 12 at 1, 7-17. The New Mexico statute criminalizing aggravated assault upon a peace officer reads:

A. Aggravated assault upon a peace officer consists of:
(1) unlawfully assaulting or striking at a peace officer with a deadly weapon while he is in the lawful discharge of his duties;
(2) committing assault by threatening or menacing a peace officer who is engaged in the lawful discharge of his duties by a person wearing a mask, hood, robe or other covering upon the face, head or body, or while disguised in any manner so as to conceal identity; or
(3) willfully and intentionally assaulting a peace officer while he is in the lawful discharge of his duties with intent to commit any felony.
B. Whoever commits aggravated assault upon a peace officer is guilty of a third degree felony.

N.M.S.A. § 30-22-22.

         This statute has a divisible structure, as it disjunctively lists alternative elements rather than enumerating various factual means of committing a single element-that is, if all of the elements under either (A)(1), (A)(2), or (A)(3) of the statute are met by a defendant's conduct, the defendant has committed the crime of aggravated assault on a peace officer. Each subsection contains an independent, alternative set of elements. See Mathis, 136 S.Ct. at 2249. Defendant does not contest the divisibility of the statute or that he was convicted specifically of the crime defined under subsection (A)(1): “unlawfully assaulting or striking at a peace officer with a deadly weapon while he is in the lawful discharge of his duties.” See doc. 12 at 1, 7. The criminal judgment from the original offense and the PSR relating to the instant offense confirm that Defendant was convicted under (A)(1) of the statute. See doc. 8-1 at 2, PSR ¶ 28. The Court may therefore apply the modified categorical approach in analyzing whether this subsection qualifies as a violent felony under the ACCA. Mathis, 136 S.Ct. at 2249.

         Defendant asserts that aggravated assault upon a peace officer, as defined in N.M.S.A. § 30-22-22(A)(1), is not a violent felony under the ACCA. Defendant frames the minimum culpable conduct under the statute as “trying to touch an officer with a stick, a rock, or a tire tool, ” which he argues does not require the use, attempted use, or threatened use of violent physical force against the person of another under the Johnson I standard. Doc. 12 at 9. Although Defendant was convicted of assaulting or striking the person of another with a deadly weapon, Defendant argues that “[t]he element of use of a deadly weapon does not make it violent, because the object need not be employed as a weapon to commit the offense proscribed by [N.M.S.A. §] 30-22- 22(A)(1).” Id. at 12. He bases this argument on the fact that the New Mexico statute defining “deadly weapon” contains an enumerated list of objects that are categorically considered deadly weapons, followed by a catch-all clause: “. . . or any other weapons with which dangerous wounds can be inflicted[.]” N.M.S.A. § 30-1-12. Accordingly, where a statute contains a “deadly weapon” element, but the object used in the charged offense is not specifically listed in the “deadly weapon” statute, a jury may nevertheless find that the “deadly weapon” element is met where the object in question, “when used as a weapon, could cause death or great bodily harm.” See, e.g., NM R CR UJI 14-2201. Therefore, Defendant avers that the aggravated assault upon a peace officer can be committed “by someone who has never used the object as a deadly weapon, does not know how to use it as a deadly weapon, and is not aware that it could be used as a deadly weapon.” Id. at 14.

         However, Defendant's analysis is founded on an incorrect premise. Where an object alleged to be a deadly weapon under a New Mexico statute containing a “deadly weapon” element is unlisted in N.M.S.A. § 30-1-12, such as a stick or a tire tool, a jury must find “that [the] object was actually used as a weapon and that it was capable of causing the wounds described in the statute.” State v. Nick R., 218 P.3d 868, 876 (N.M. 2009) (emphasis added). Therefore, under New Mexico law, a defendant may not be convicted of an offense containing a “deadly weapon” element on the sole basis that he possessed an item that could theoretically be used as a deadly weapon, as Defendant contends. Rather, in addition to proof that the object used was “capable of producing death or great bodily harm, ” there must also be proof that the object was used as a weapon and that a defendant “carried the instrument because it could be used as a weapon.” State v. Blea, 668 P.2d 1114, 1116 (1983). See also State v. Traeger, 29 P.3d 518, 523 (N.M. 2001) (“[T]o criminalize the carrying of a baseball bat, without a jury finding that the baseball bat was a deadly weapon and that the baseball bat was in fact being carried because it could be used as a weapon, is incongruent with New Mexico law”).

         Defendant is thus incorrect to assert that he could have been convicted of the crime of aggravated assault on a peace officer by carrying an unlisted object-such as a stick or tire tool-that he was unaware could be used as a deadly weapon, while challenging the authority of the officer in a rude manner and trying to touch him with the object. Instead, a conviction under the statute would require additional proof that Defendant was carrying the stick or tire tool because it could be used as a weapon, and moreover, that he actually used it as a weapon.

         The undersigned cannot conjure any far-fetched hypothetical conduct that could satisfy the elements of this crime without also satisfying the ACCA definition of a violent felony under the elements clause. And in any event, the categorical approach does not demand that the Court do so. As discussed above, “there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.'” Moncrieffe, 133 S.Ct. at 1684-85 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

         There is no realistic probability that a defendant could (1) attempt to touch a peace officer, (2) in a rude, insolent, or angry manner, (3) with an object capable of producing death or great bodily harm when used as a weapon, (4) that the defendant carried or possessed specifically because it could be used as a weapon, and (5) which the defendant actually used as a weapon, without threatening the use of “violent physical force” against the person of another. Therefore, aggravated assault upon a peace officer is categorically a violent felony under the ACCA elements clause. See Johnson I, 559 U.S. at 140; 18 U.S.C. § 924(e)(2)(B)(ii).

         B. Shooting at or from a Motor Vehicle/Aggravated Battery

         On December 13, 1996, pursuant to a guilty plea, Defendant was convicted of two offenses stemming from the same underlying conduct-namely, Shooting at or from a Motor Vehicle (Great Bodily Harm), in violation of N.M.S.A. § 30-3-8 and Aggravated Battery (Great Bodily Harm/Firearm Enhancement), in violation of N.M.S.A. § 30-3-5.[6] A habitual offender enhancement was applied at the sentencing for these offenses, resulting in an additional one-year sentence for each conviction pursuant to N.M.S.A. § 31-18-17. Doc. 8-1 at 4; PSR ¶ 29.

         i. Shooting at or From a Motor Vehicle

         The PSR includes Defendant's conviction of Shooting at or From a Motor Vehicle as a “violent felony” predicate for application of an enhanced sentence under U.S.S.G. § 4B1.4(b) pursuant to the ACCA. PSR ¶ 24. The portion ...


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