Rhoads v. United States

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          JUDITH C. HERRERA United States District Judge.

         This 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. 6).

         I. Background

         On 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.

         Petitioner's 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, ^[1] 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 III.^[2] Cr. doc. 154 at 6-7.

         Petitioner 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.

         On 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.

         On 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. Doc. 19.

         II. Legal Standard Applicable to Objections

         Petitioner's 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).

         III. Retroactivity

         On 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.

         IV. Petitioner's Objections

         In 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 ...