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United States v. King

United States District Court, D. New Mexico

February 17, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DAVID LOUIS KING, Defendant/Movant. Cr. No. 02-2092 MV

          MAGISTRATE JUDGE'S SUPPLEMENTAL PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          Kirtan Khalsa, Judge

         THIS MATTER comes before the Court on Defendant/Movant David Louis King's (“Defendant”) Emergency Motion to Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) (“Section 2255 Motion”), filed May 26, 2016.

         I. Introduction

         On December 1, 2016, pursuant to a referral by United States District Judge Martha Vázquez, I filed Proposed Findings and a Recommended Disposition (“PFRD”) recommending that the Court grant Defendant's Section 2255 Motion, vacate his sentence, and resentence him at the Court's earliest opportunity. (Docs. 4, 12.) Since that date, developments of potential significance to the PFRD have occurred. The Tenth Circuit has issued United States v. Harris, 844 F.3d 1260 (10th Cir. 2017), and, as a result, the Government has modified its position in this case. Also, the Government has objected to the PFRD, and one district judge and three magistrate judges in this District have since reached conclusions contrary to those I reached in the PFRD. These Supplemental Proposed Findings and Recommended Disposition will address these developments.

         On February 18, 2004, Defendant pled guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). (Doc. 1 at 2; CR Docs. 37, 56, 57.) The Court determined that Defendant had previously been convicted of three violent felonies, and therefore imposed an enhanced sentence of fifteen years' imprisonment pursuant to the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1). (CR Doc. 83 at 24, 28.) In his Section 2255 Motion, Defendant asks the Court to reduce his sentence, because the armed robbery conviction on which the Court relied to enhance it no longer qualifies as a violent felony under the ACCA in light of the United States Supreme Court's decision in Johnson v. United States, __U.S. __, 135 S.Ct. 2551 (2015).[1] (Docs. 1, 10.) In the PFRD, I agreed, and recommended that Defendant's Section 2255 Motion be granted. (See generally Doc. 12.) I have meticulously reexamined that recommendation in light of the Tenth Circuit's decision in Harris, 844 F.3d at 1260, the Government's objections and modified position, and recent decisions by other judges in this District. However, for the following reasons, these developments do not alter my recommendation.

         II. Analysis

         As explained in detail in the PFRD, which I incorporate by reference, the pertinent issue in this case is whether New Mexico armed robbery categorically has “as an element the use, attempted use, or threatened use of physical force against the person of another, ” and therefore qualifies as a “violent felony” under the ACCA's force clause.[2] 18 U.S.C. § 924(e); Harris, 844 F.3d at 1263-64. If armed robbery qualifies as a violent felony under the force clause, then the Court may rely on Defendant's 1986 New Mexico armed robbery conviction to enhance his sentence. However, if the offense does not qualify as a violent felony under the force clause, then the Court can no longer rely on Defendant's conviction of it, because it can only have qualified as an ACCA predicate offense under the residual clause, which Samuel Johnson struck down as unconstitutionally vague. 135 S.Ct. at 2557-58.

         In the PFRD, I proposed to find that New Mexico armed robbery does not categorically have “as an element the use, attempted use, or threatened use of physical force against the person of another” within the meaning of the force clause. 18 U.S.C. § 924(e); (Doc. 12.) 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.” Curtis Johnson, 559 U.S. at 140 (emphasis in original). Although the “degree of force necessary to inflict pain” might consist of no more than “a slap in the face, for example, ” it certainly consists of something more than mere offensive touching. Id. at 143; Harris, 844 F.3d at 1265. As demonstrated in the PFRD, there is at least a realistic probability that a defendant could be convicted of New Mexico armed robbery without using, or threatening or attempting to use, force capable of causing physical pain or injury to another person. (Doc. 12 at 8-22.)

         The Tenth Circuit recently addressed a similar question in Harris, and its decision must therefore inform, though not necessarily change, the reasoning in the PFRD. In Harris, the Tenth Circuit held that Colorado robbery categorically has as an element the use, attempted use, or threatened use of physical force against the person of another, and so satisfies the ACCA's force clause. 844 F.3d at 1270. In so holding, the Harris court relied on a Colorado Supreme Court decision which held that Colorado robbery “tracks the elements of common law robbery, ” and which emphasized the “violent nature of the taking” as the gravamen of the offense. Id. at 1266-67 (quoting Colorado v. Borghesi, 66 P.3d 93, 99-101 (Colo. 2003)). The Harris court rejected the defendant's argument that the Colorado Supreme Court “might not have meant ‘violent' when it said ‘violent, '” and concluded that “robbery in Colorado requires a ‘violent taking, ' which we believe is consistent with the physical force required by the ACCA's elements clause.” Id. at 1266-67. The Harris court further concluded that Colorado robbery by “threats or intimidation” requires the threatened use of Curtis Johnson physical force, rejecting the defendant's argument that the threatened use of force could be against the property, rather than the person, of another. Id. at 1268-70.

         Two points in the Harris decision are particularly instructive here. First, the Harris court held that, because the Colorado Court of Appeals' decision in Colorado v. Davis, 935 P.2d 79 (Colo.App. 1996), predated the Colorado Supreme Court's decision in Borghesi, Davis was “not controlling . . . [t]o the extent [it] suggests a Colorado robbery conviction can be based on less than violent force.” Harris, 844 F.3d at 1267. Thus, the Tenth Circuit intimated that the force used in Davis was “less than violent force.” Id. The Davis court, in turn, held that Colorado robbery “includes the snatching of an object attached to the person of another if force is used to tear or break the attachment.” 935 P.2d at 84-85. As such, the Davis court affirmed the defendant's robbery conviction where the defendant “pulled [a] purse from the victim's arm with sufficient force to break the strap.” Id. at 86. The Harris decision therefore suggests that the force used in a Davis-like purse-snatching would not rise to the level of Curtis Johnson physical force. 844 F.3d at 1267.

         New Mexico law regarding purse-snatchings is similar to Davis, but more extensive and authoritative. In 1976, the New Mexico Supreme Court held that

[t]he question of whether or not the snatching of the purse from the victim was accompanied by sufficient force to constitute robbery is a factual determination, within the province of the jury's discretion. . . . Assuming that the docketing statement, which was filed by the defendant-respondent, presents the facts accurately, and viewing these facts in the light most favorable to the State, we conclude that the evidence supported the verdict of the jury that the snatching of the purse was accompanied by force sufficient to convert the crime from larceny to robbery.

New Mexico v. Clokey, 1976-NMSC-035, ¶ 3, 89 N.M. 453, 553 P.2d 1260. The docketing statement on which the New Mexico Supreme Court relied, in turn, described the facts as follows:

[t]he complaining witness was walking toward the [d]efendant and was carrying a purse under her left arm. The purse was not fastened to her person, nor was it in the grasp of her hand. The [d]efendant allegedly ran toward the complaining witness and with his left hand pushed the purse through the woman's arm, grabbed the purse and ran. It is alleged that in so doing the [d]efendant touched the inside of the woman's arm, causing the woman to stumble. The woman was in her seventies and tottered unsteadily when she walked. There was no resistance offered by the woman whose purse was taken; there was no ...

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