United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
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. 18). Being fully advised, the
Court will overrule the objections, adopt the Proposed
Findings and Recommended Disposition (doc. 17), and
deny Petitioner's amended Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255 (doc.
November 3, 1997, Petitioner pled guilty to Counts I and III
of a four-count indictment. See cr. docs. 80, 81.
Count I was Possession with Intent to Distribute More than
100 Grams and More of a Mixture or Substance Containing
Methamphetamines, in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(B) and 18 U.S.C. § 2, and Count III
was Carrying a Firearm During and in Relation to a Drug
Trafficking Crime, in violation of 18 U.S.C. § 924(c).
See cr. docs. 1, 80, 81; see also Presentence Report
(“PSR”) ¶ 3.
sentencing guideline range for Count I of the indictment was
determined pursuant to U.S.S.G. § 4B1.1. As reflected in
the presentence report (PSR), Petitioner had two prior felony
convictions in New Mexico for Armed Robbery and Possession
with Intent to Distribute Cocaine. PSR ¶¶ 34, 38,
41. Because these offenses were respectively considered a
“crime of violence” and a “controlled
substance offense” under the definitions set forth in
U.S.S.G. § 4B1.2,  Petitioner was subjected to a higher
base offense level due to the application of the career
offender enhancement under U.S.S.G. § 4B1.1. PSR ¶
41; see also cr. doc. 154 at 5-6. After a
three-level reduction for acceptance of responsibility,
Petitioner's total offense level was 31. PSR ¶ 68.
With a criminal history category of V, Petitioner's
sentencing guideline range was 188-235 months for Count I.
Id. Because Petitioner was sentenced prior to the
decision in United States v. Booker, 543 U.S. 220
(2005), which rendered the guidelines advisory, this
guideline range was mandatory. After a sentencing hearing,
the Court imposed a sentence of 188 months as to Count I, to
run consecutively with a sentence of 60 months as to Count
Cr. doc. 154 at 6-7.
now challenges the 188-month sentence on the basis that the
sentencing guideline range calculated for Count I was
wrongfully enhanced pursuant to the unconstitutionally vague
residual clause of the definition of “crime of
violence” under U.S.S.G. § 4B1.1(a)(2).
Specifically, Petitioner's amended Motion argues that his
conviction for armed robbery is no longer a “crime of
violence” in light of Johnson v. United
States, 135 S.Ct. 2551 (2015). See doc. 6 at
1-2, 5-22. Petitioner contends that the Johnson
decision should be applied retroactively to invalidate the
enhanced base offense level calculation for Count I, and that
he should therefore be resentenced without application of the
career offender provision. See Id. at 2, 24-31. The
United States contends that Petitioner's motion fails for
three reasons: (i) the application of Johnson to the
guidelines should not be given retroactive effect and (ii)
his armed robbery conviction remains a crime of violence
under U.S.S.G. § 4B1.2(a)(2) after Johnson. See doc.
16 at 3-14.
January 25, 2017, the Magistrate Judge filed his Proposed
Findings and Recommended Disposition (PFRD). Doc.
17. Because Petitioner was sentenced prior to
Booker, the Magistrate Judge assumed without
deciding that application of Johnson to a mandatory
guidelines sentence would have retroactive effect. See
Id. at 4-5. Nonetheless, the Magistrate Judge
recommended denying Petitioner's motion on the basis that
Petitioner's conviction for New Mexico armed robbery
remains a “crime of violence” under U.S.S.G.
§ 4B1.1(a), as defined in § 4B1.2(a) (1997), even
after redacting its residual clause.
January 25, 2017, Petitioner filed Objections to the PFRD.
Doc. 18. Petitioner argues that: (1) the Magistrate
Judge's conclusion that New Mexico armed robbery is a
“crime of violence” differs from the conclusion
of another magistrate judge in this district; (2) in
employing the modified categorical approach, the Magistrate
Judge failed to consider whether the facts underlying
Petitioner's armed robbery offense showed that
Petitioner's specific commission of the crime was
violent; (3) Petitioner was convicted of armed robbery
pursuant to a plea agreement which he entered into as part of
a compromise, and therefore the United States has not met its
“burden of proving a crime of violence;” and (4)
the Magistrate Judge erroneously indicated that the offense
element of “armed with a deadly weapon” has a
bearing on the analysis of whether New Mexico armed robbery
is a “crime of violence.” See doc. 18 at
3-11. Petitioner further reserved the right to file
supplemental objections relating to the retroactivity
question if necessary. Id. at 2. The United States
filed a response stating it had no objections to the PFRD.
Legal Standard Applicable to Objections
Motion was referred to the Magistrate Judge pursuant to Title
28 U.S.C. § 636(b)(1)(B). See doc. 12. When
resolving objections to a magistrate judge's 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); see also
28 U.S.C. § 636(b)(1)(C). The Tenth Circuit has held
“that a party's objections to [a] 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). 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).
March 6, 2017, the Supreme Court issued its ruling in
Beckles v. United States. 580 U.S. ___, No. 15-8544,
slip op. (March 6, 2017). In that opinion, the Supreme Court
held that the United States Sentencing Guidelines are not
subject to a void-for- vagueness challenge. 580 U.S. at ___,
slip op. at 5. Nonetheless, Beckles may not resolve
Petitioner's motion, because he was sentenced before the
sentencing guidelines became advisory. See Beckles,
580 U.S. at ___ (Sotomayor, J., concurring) (slip op., at 10
n.4) (“The Court's adherence to the formalistic
distinction between mandatory and advisory rules at least
leaves open the question whether defendants sentenced before
our decision in United States v. Booker, 543 U.S.
220 (2005) . . . may mount vagueness attacks on their
sentences”). Therefore, the Court will assume without
deciding that sentences imposed under the mandatory
guidelines, such as Petitioner's, are subject to
void-for- vagueness challenges and will consider
Petitioner's argument on its merits.
articulating his objections, Petitioner heavily quotes the
first PFRD of Magistrate Judge Kirtan Khalsa from a separate
case in this jurisdiction, in which Judge Khalsa reached the
opposite conclusion regarding the same offense. See doc.
18 at 3-4; United States v. King, Magistrate
Judge's Proposed Findings and Recommended Disposition,
doc. 12 in Civ. No. 16-501 MV/KK (D.N.M. Dec. 1,
2016). Petitioner's reliance on that PFRD is unavailing
for two reasons. First, the United States in King
conceded that New Mexico simple robbery was not a
“violent felony, ” a concession which Judge
Khalsa gave “some weight” and found that it
“tipp[ed] the scales” towards recommending that