United States District Court, D. New Mexico
ORDER OVERRULING PETITIONER'S OBJECTIONS,
ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION, AND DENYING PETITIONER'S
C. HERRERA United States District Judge
matter is before the Court on Petitioner's Objections to
the Magistrate Judge's Proposed Findings and Recommended
Disposition. Doc. 16. To the extent explained herein, the
Court will overrule the objections, adopt the Proposed
Findings and Recommended Disposition (Doc. 15), and deny
Petitioner's Motion (Doc. 1).
February 26, 2014, Petitioner and a co-defendant were charged
by indictment with one count of conspiring to distribute more
than 5 grams of methamphetamine and two counts of
distributing more than 5 grams of methamphetamine. Cr. Doc.
1. The grand jury later returned a Superseding Indictment
against the original defendants and a third defendant, but
the charges against Petitioner remained the same. Cr. Doc.
19. On September 10, 2014, Petitioner pleaded guilty to the
conspiracy charge (Count 1) pursuant to a written plea
agreement. Cr. Docs. 58, 65. The parties stipulated pursuant
to Federal Rule of Criminal Procedure 11(c)(1)(C) that the
“appropriate sentence in this case is 120 months”
of imprisonment. Id. ¶ 10a.
Presentence Investigation Report (hereafter
“PSR”) recommended that the Court find that
Petitioner was a career offender under U.S.S.G. § 4B1.1.
In making this recommendation, the PSR emphasized that the
instant offense was a controlled substance offense and that
Petitioner had a previous federal conviction for a controlled
substance offense (CR 98-988 BB, D.N.M.) and a previous state
aggravated assault with a deadly weapon conviction
(D202CR201302614, 2nd Judicial District Court, NM). PSR
¶ 29. The PSR recommended an adjusted offense level of
31, a criminal history category of VI, and a resulting
guideline imprisonment range of 188-235 months. PSR
¶¶ 37, 57-58, 101. In its final paragraph, the PSR
concluded that “[b]ased on the above factors, and in
consideration of 18 U.S.C. § 3553(a)(1)-(7), a sentence
of 120 months custody in accordance with the Rule 11(c)(1)(C)
plea agreement appears to be an appropriate sentence in this
case.” PSR ¶ 119. Petitioner filed no objections
to the PSR.
March 10, 2015, the Court held a sentencing hearing (Cr. Doc.
90) at which it accepted the Rule 11(c)(1)(C) plea agreement
and sentenced Petitioner to a 120-month term of imprisonment.
Tr. 9, 11. The Court pronounced itself “satisfied that
the agreed sentence is justified, ” even though it
represented a substantial variance from the guideline
imprisonment range that Petitioner would otherwise have been
subjected to as a career offender. Tr. 11. There was no
discussion at the hearing about how or why Petitioner's
current and prior convictions qualified him as a career
offender under § 4B1.1. The Court filed its Amended
Judgment on March 12, 2015. Cr. Doc. 94. Petitioner did not
appeal his sentence.
Motion, Petitioner argues that his prior New Mexico state
conviction for aggravated assault against a household member
with a deadly weapon no longer qualifies as a “crime of
violence” in light of Johnson v. United
States, 135 S.Ct. 2551 (2015). Doc. 1 at 3. He further
contends that Johnson should apply retroactively to
reduce the adjusted guideline range he would have faced from
188-235 months to 77-96 months. Id. at 4. He asserts
that his 120-month sentence should be vacated because he
never would have agreed to a sentence that was 24 months
longer than the top end of what should have been the
appropriate range. Id. at 2.
opposition, the United States contends that New Mexico's
aggravated assault with a deadly weapon statute remains a
crime of violence irrespective of Johnson, because
it has “as an element the use, attempted use, or
threatened use of physical force against the person of
another.” Doc. 5 at 3 (quoting U.S.S.G. §
4B1.2(a)(1)). Furthermore, the United States asserts that
Johnson does not have retroactive application to
Sentencing Guidelines cases pending on collateral review.
Doc. 5 at 5-13.
January 20, 2017, the Magistrate Judge filed his Proposed
Findings and Recommended Disposition (PFRD). Doc. 15. He
first concluded that the application of Johnson to
the guidelines would not have retroactive effect under the
Teague analysis, because it would be a non-watershed
procedural rule. See Id. 5-11. Therefore, he
recommended denying Petitioner's motion on that ground.
Nonetheless, in case the Court disagreed with the
recommendation regarding non-retroactivity, he considered
whether Petitioner's conviction for New Mexico aggravated
assault with a deadly weapon remains a “crime of
violence” under U.S.S.G. § 4B1.2(a)(1), even after
redacting its residual clause. On that issue, he concluded
that a recent Tenth Circuit decision has definitively
answered that question in a manner that binds this Court.
See Id. 12-15. The Magistrate Judge recommended that
Petitioner's Motion be denied for both separate and
February 1, 2017, Petitioner timely filed his objections to
the PFRD. Doc. 16. First, Petitioner objects to the
PFRD's recommendation that Johnson be held not
to apply retroactively to collateral attacks on sentences
imposed under the Sentencing Guidelines. Id. at
2-11. He also objects to the PFRD's recommendation that
the Court hold that the New Mexico aggravated assault with a
deadly weapon statute remains a crime of violence under
U.S.S.G. § 4B1.1 even after Johnson. On that
point, Petitioner essentially concedes that this Court is
bound by a recent Tenth Circuit decision, but persists in his
objection to preserve his ability to further appeal that
decision. Id. at 11-12. The United States filed no
Legal Standard Applicable to Objection
Motion (Doc. 1) was referred to Magistrate Judge Fouratt
pursuant to 28 U.S.C. § 636(b)(1)(B). See Doc. 9. Under
that referral provision, the Court's standard of review
of any objections to a magistrate judge's PFRD is de
novo. See 28 U.S.C. § 636(b)(1)(C). When
resolving objections to a PFRD, “[t]he district judge
must determine de novo any part of the magistrate judge's
disposition that has been properly objected to. The district
judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter
to the magistrate judge with instructions.”
Fed.R.Civ.P. 72(b)(3). The Tenth Circuit has held “that
a party's objections to the magistrate judge's report
and recommendation must be both timely and specific to
preserve an issue for de novo review by the district court or
for appellate review.” United States v. 2121 E.
30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).
“[A]n objection must be sufficiently specific to focus
the district court's attention on the factual and legal
issues that are truly in dispute[.]” Id. at
1060. When neither party objects to a finding or
recommendation, no further review by the district court is
required. See Thomas v. Arn, 474 U.S. 140, 151-52
(1985). “Issues raised for the first time in objections
to the magistrate judge's recommendation are deemed
waived.” Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996).
Petitioner's Claim Is No Longer Cognizable under 28
U.S.C. § 2255
Petitioner filed his objections to the PFRD, the United
States Supreme Court issued its decision in Beckles v.
United States, 580 U.S. ___(2017). In holding that
“void for vagueness” claims under the Due Process
Clause may not be levied against the United States Sentencing
Guidelines, the Supreme Court has ...