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United States v. Henry

United States District Court, D. New Mexico

April 11, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DAVID EMANUEL HENRY, Defendant/Movant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION [1]

          LOURDES A. MARTÍNEZ UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Defendant/Movant's (hereinafter “Defendant”) amended § 2255 motion to correct his sentence, [Doc. 9], [2] filed on June 24, 2016. Plaintiff/Respondent (hereinafter “the Government”) filed a response on August 4, 2016 [Doc. 11], and Defendant filed a reply on August 5, 2016 [Doc. 12]. Pursuant to the Court's order [Doc. 15], the Government filed a supplemental brief on November 25, 2016 [Doc. 18], and Defendant filed a response to the Government's supplemental brief on December 16, 2016 [Doc. 21]. In addition, on January 19, 2017, the Government filed a notice of supplemental authority [Doc. 22], and, on January 20, 2017, Defendant filed a response to the Government's notice of supplemental authority [Doc. 23]. United States District Judge James O. Browning referred the claims raised in this case to the undersigned for proposed findings and a recommended disposition, and a hearing, if necessary. [Doc. 8]. Having considered the parties' briefing, relevant law, and the record in this case and in Defendant's underlying criminal case contained in Case No. CR-11-2660, the undersigned recommends, for the reasons set forth below, that the claims raised in Defendant's amended § 2255 motion [Doc. 9] be DENIED and that this case be DISMISSED with prejudice.

         Factual and Procedural Background

         On October 13, 2011, Defendant was indicted on the charge of Possession of a Firearm by a Felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). [Cr.Doc. 13]. On June 14, 2012, the United States Probation Office (“USPO”) issued a Presentence Report (“PSR”), which set Defendant's base offense level at 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(A) based on Defendant's prior felony conviction of Aggravated Battery Against a Household Member (Great Bodily Harm). See [Doc. 14-1 at 2 and 6]. The USPO increased this offense level to 24 pursuant to U.S.S.G. § 2K2.1(b)(6) because Defendant used or possessed a firearm in connection with the offense of Aggravated Assault with a Deadly Weapon. Id. at 6. The USPO further found that Defendant was subject to 18 U.S.C. § 924(e), the Armed Career Criminal Act (“ACCA”), based on Defendant's prior convictions for: (1) Robbery Second Degree (Felony) in the United States District Court in St. Thomas, Virgin Islands; (2) Trafficking (By Possession with Intent to Distribute); and (3) Aggravated Battery Against a Household Member (Great Bodily Harm Third Degree Felony). Id. at 7. Pursuant to U.S.S.G. § 4B1.4(b)(3)(A), the USPO increased Defendant's offense level to 34 because Defendant used or possessed a firearm in connection with a “crime of violence” as defined in § 4B1.2(a) or (b). Id. After adjusting for Defendant's demonstration of acceptance of responsibility, the USPO found that his total offense level was 31. Id. In addition, the USPO found that Defendant's initial criminal history category was III; however, because Defendant used or possessed a firearm or ammunition in connection with a “crime of violence, ” pursuant to U.S.S.G. § 4B1.4(c)(2), Defendant's criminal history category was increased to VI. Id. at 14. The USPO, therefore, stated that Defendant was subject to a sentence of 15 years to life pursuant to 18 U.S.C. § 924(e), and that, based on the total offense level of 31 and a criminal history category of VI, the Sentencing Guideline range is 188 to 235 months. Id. at 27.

         On April 26, 2012, Defendant entered into a plea agreement in which he pled guilty to the charge in the indictment. [Cr.Doc. 34]. On July 25, 2012, the Court accepted the plea agreement, adopted the factual findings and sentencing guideline applications in the PSR, and sentenced Defendant to 188 months of imprisonment, and to a term of supervised release for three (3) years. See [Cr.Doc. 49 at 6-8] and [Cr.Doc. 39 at 2-3].

         In his § 2255 motion, Defendant contends that his sentence is unconstitutional pursuant to the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson 2015”). [Doc. 9 at 1]. Specifically, Defendant contends that his second-degree robbery conviction, as defined by Virgin Islands law, can no longer be used as a prior conviction under the ACCA because it does not qualify under the residual clause, which was found to be unconstitutionally vague in Johnson, it is not an enumerated offense, and it does not qualify under the force clause. Id. at 6-10. In the alternative, if the Court finds that Defendant is still an armed career criminal under the ACCA, then Defendant contends that he is still entitled to relief with regard to his advisory sentence under the armed career criminal Sentencing Guideline, U.S.S.G. § 4B1.4. Id. at 10. Defendant contends that both his criminal history category and his total offense level were increased under the Sentencing Guidelines based on the Court's finding that Defendant possessed the firearm in connection with the offense of aggravated assault, but that aggravated assault no longer qualifies as a “crime of violence” under the residual clause of § 4B1.2(a)(2) based on the holdings in Johnson 2015 and United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). Id. at 11. Defendant further contends that the offense of aggravated assault does not qualify under the enumerated offenses clause of U.S.S.G. § 4B1.2 (id. at 11-13), and also does not qualify under the force clause of that statute (id. at 13-14). Defendant, therefore, asks the Court to vacate his sentence and resentence him. Id. at 14.

         In its original response, the Government conceded that Defendant's Virgin Islands conviction for second-degree robbery under 14 V.I.C. § 1863 does not require the requisite use of force under the holding of Johnson v. United States, 559 U.S. 133, 140 (2010) (“Johnson 2010”). [Doc. 11 at 1]. Therefore, the Government stated that, “when the robbery conviction is removed as a predicate offense under the [ACCA], Defendant[] no longer has three qualifying convictions to support the mandatory minimum sentence he received under 18 U.S.C. § 924(e), and he is entitled to a new sentencing.” Id. at 2. The Government did not address Defendant's argument that his advisory Sentencing Guidelines range is also incorrect.

         In reply, based on the Government's concession, Defendant asked the Court to grant his § 2255 motion, vacate his sentence, and schedule a new sentencing hearing as soon as possible. [Doc. 12 at 1]. Defendant contended that, “[w]ithout the [ACCA] mandatory minimum and without the application of the armed career criminal Guideline, according to the PSR, [Defendant] would have an adjusted offense level of 21 and a criminal history [category] of III, ” which would “yield an advisory Guidelines range of 46-67 months.” Id. at 1-2. Defendant contended that he has already served 58 months without considering the benefit of good-time credit. Id. at 2. Therefore, Defendant asked the Court to “resentence him as soon as possible based on the existing PSR, absent the portions based on the ACCA and corresponding Guideline.” Id.

         On August 31, 2016, the USPO filed a Memorandum regarding ACCA retroactivity in Defendant's case. [Doc. 14]. In this memorandum, the USPO states that Defendant's predicate convictions for aggravated battery and second-degree robbery still fall under the ACCA without the use of the residual clause because they meet the definition of violent felony under the ACCA's force clause. Id. Combined with Defendant's predicate conviction for trafficking, the USPO states that Defendant is an armed career criminal under the ACCA and is not eligible for any reduction in his sentence. Id. The USPO does not address Defendant's contentions regarding his advisory Sentencing Guidelines range.

         Based on the USPO's memorandum, the Court ordered the parties to provide additional information. See [Doc. 15]. Specifically, the Court ordered the Government to file a supplemental brief stating: (1) whether or not the USPO's memorandum affects its position regarding Defendant's Virgin Islands second-degree robbery conviction, and to explain why or why not; and (2) whether or not Defendant's criminal history category and his total offense level were properly increased under the Sentencing Guidelines based on the Court's finding that Defendant possessed the firearm in connection with the offense of aggravated assault, including whether or not aggravated assault qualifies as a “crime of violence” under § 4B1.2. See Id. at 5-6.[3] The Court also allowed Defendant to file a response to the Government's supplemental brief, and instructed Defendant not to raise any new claims that were not raised in his amended § 2255 motion [Doc. 9]. See Id. at 7.

         In its supplemental brief, the Government states that it “has come to the conclusion that it can no longer support its earlier concession” that Defendant's second-degree robbery conviction is not a predicate violent felony under the ACCA. [Doc. 18 at 1]. The Government contends that cases interpreting the statute under which Defendant was convicted provide that the level of force required for the conviction meets the standard of “violent force” set forth in Johnson 2010. See Id. at 2-5. The Government further contends that there is an absence of case law showing “that the Virgin Islands would apply its robbery statute to situations involving less than the use or threat of violent force, ” and explains that “[t]he lack of controlling case law on point distinguishes this case from others, such as United States v. Philip Garcia, D. NM 16-CV-0240 JB/LAM and 07-CR-0788 JB, in which the United States conceded that the [New Mexico] state robbery statute at issue was not a ‘violent felony' under the ACCA.” Id. at 5 and n.2. In addition, the Government contends that Defendant's criminal history category and total offense level were properly enhanced under the Sentencing Guidelines. See Id. at 5-7. The Government contends that the holding of Johnson 2015 does not apply retroactively to permit a defendant to challenge a sentence based on a Guideline range, and notes that this issue is before the United States Supreme Court in Beckles v. United States, S.Ct. No. 15-8544, and the Government asks the Court to stay this matter pending a ruling in Beckles. See Id. at 6. In the alternative, if the Court reaches the merits of Defendant's Sentencing Guidelines claim, the Government contends that the charge of aggravated assault with a deadly weapon is categorically a crime of violence under the force prong of § 4B1.2(a)(1). See Id. at 6-7.

         In response to the Government's supplemental brief, Defendant contends that his second-degree robbery conviction under Virgin Islands law does not qualify as a violent felony under the ACCA. See [Doc. 21 at 1]. Defendant relies on treatises and case law regarding common law robbery for his contention that Virgin Islands robbery does not rise to the level of force required by Johnson 2010. See Id. at 2-8. With regard to his Sentencing Guideline range claim, Defendant states that he does not object to the Government's request for a stay of this matter pending a decision in Beckles, and further states that he concedes that the Tenth Circuit's holding in United States v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016) “requires this Court to hold that aggravated assault with a deadly weapon is a ‘crime of violence.'” Id. at 9.

         In its notice of supplemental authority, the Government provides notice that, in January 2017, the Tenth Circuit held that Colorado's robbery statute constitutes a crime of violence under the ACCA. [Doc. 22 at 1] (citing United States v. Harris, 844 F.3d 1260, 1269 (10th Cir. 2017)). The Government contends that “[g]iven the common-law provenance of the Virgin Islands robbery statute, as well as its textual similarities to the Colorado and Michigan statutes discussed in Harris, this Court should follow Harris and conclude that Virgin Islands robbery requires Johnson [2010]-level force.” Id. at 2. In response, Defendant contends that Harris does not support the Government's position because the Tenth Circuit relied on precedent from Colorado's Supreme Court finding that ...


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