United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
LOURDES A. MARTÍNEZ UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Defendant/Movant’s
(hereinafter “Defendant”) Motion to Correct
Sentence Pursuant to 28 U.S.C. § 2255 [Doc.
1], filed on June 15, 2016.
Plaintiff/Respondent (hereinafter “the
Government”) filed a response on November 25, 2016.
[Doc. 5], and Defendant filed a reply on January 9,
2017 [Doc. 8]. United States District Judge William
P. Johnson referred the claims raised in this case to the
undersigned for proposed findings and a recommended
disposition, and a hearing, if necessary. [Doc. 10].
Having considered the motion, response, relevant law, and the
record in this case and in Defendant’s underlying
criminal case contained in Case No. CR-13-3892, the
undersigned recommends, for the reasons set forth below, that
Defendant’s § 2255 motion [Doc. 1] and be
DENIED and that this case be DISMISSED with prejudice.
and Procedural Background
September 24, 2014, pursuant to a Plea Agreement [Cr.Doc.
35], Defendant pled guilty to an Indictment [Cr.Doc.
13], which charged him with being a felon in possession
of a firearm and ammunition in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). On May 15, 2015,
Defendant was sentenced to a term of 15 years imprisonment,
and 3 years of supervised release. [Cr.Doc. 47 at
§ 2255 motion, Defendant states that he was facing a
mandatory minimum sentence under the Armed Career Criminal
Act (“ACCA”) based on two convictions for armed
bank robbery in the United States District Court for the
District of New Mexico in 2002, and three state convictions
for armed robbery in New Mexico District Court in 2003.
[Doc. 1 at 2]. Defendant contends that the state
armed robbery convictions no longer qualify as crimes of
violence following the holding of Johnson v. United
States, 135 S. Ct. 2551 (2015) (“Johnson
2015”). See Id. Therefore, Defendant
contends that “post Johnson 
[Defendant’s] plea makes little sense and, in fact,
imposes an illegal sentence above the maximum authorized by
law.” Id. Specifically, Defendant contends
that a conviction under New Mexico’s robbery statute,
N.M.S.A. § 30-16-2, is not a crime of violence under the
force clause because it does not require proof of the use or
threatened use of violent, physical force, and Defendant
relies on Johnson v. United States, 559 U.S. 133,
140 (2010) (“Johnson 2010”), in which
the Supreme Court held that the term “physical
force” in the ACCA’s force clause, §
924(e)(2)(B)(i), must be “strong physical force,”
“a substantial degree of force,” or
“violent force -- that is, force capable of
causing physical pain or injury to another person.”
See Id. at 4-12. Defendant further contends that New
Mexico armed bank robbery does not qualify as a crime of
violence under the ACCA’s force clause because
“[t]here is no requirement that the weapon be
brandished or used in any fashion to enable the commission of
the robbery,” and “[t]here is no requirement of a
nexus between the simple robbery and possession of the
weapon.” Id. at 12-13. Therefore, Defendant
asks the Court to vacate his sentence and resentence him
without the ACCA enhancement. See Id. at 14.
response, the Government contends that Defendant’s
convictions for New Mexico armed robbery satisfy the force
requirements for an enhancement under the ACCA. See
[Doc. 5 at 2-4]. The Government states that, while
it concedes that New Mexico’s simple robbery statute
does not meet the force requirements of Johnson
2010, based on the Government’s contention that
armed robbery requires the use of a deadly weapon in the
commission of a robbery, New Mexico’s armed robbery
statute does meet the Johnson 2010 violent force
standard. See Id. at 3-4.
reply, Defendant contends that New Mexico’s armed
robbery statute does not require force sufficient to meet the
standard in Johnson 2010 because “[i]n New
Mexico, an accused may be convicted of armed robbery by
merely possessing a weapon during a robbery,” and does
not require the use of the weapon during the robbery.
[Doc. 8 at 1]. Defendant relies on a holding by a
District Judge in this Court that New Mexico armed robbery
does not satisfy the ACCA’s violent felony definition.
See Id. at 2 (relying on United States v.
King, No. CR-02-2092 MV, Doc. 84). Defendant
contends that, since a person can be convicted of armed
robbery even when the accused did not intend to use the
weapon, or when the accused did not use the weapon or even
make the victim aware of the weapon, the New Mexico armed
robbery statute does not satisfy the ACCA’s force
clause. See Id. at 3-4.
the ACCA, an individual who violates § 922(g)
(e.g., being a felon in possession of a firearm or
ammunition), and who has “three previous convictions .
. . for a violent felony or a serious drug offense,”
will receive a mandatory, minimum 15-year sentence. 18 U.S.C.
§ 924(e). The statute defines the term “violent
[A]ny crime punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency involving the
use or carrying of a firearm, knife, or destructive device
that would be punishable by imprisonment for such term if
committed by an adult, that--
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another . .
18 U.S.C. § 924(e)(2)(B)(i)-(ii) (emphasis added). The
emphasized clause is referred to as the “residual
clause,” and in Johnson 2015 the Supreme Court
held that the residual clause “denies fair notice to
defendants and invites arbitrary enforcement by
judges,” and, therefore, violates the due process
clause of the Constitution. Johnson 2015, 135 S.Ct.
that the residual clause has been found to be
unconstitutional, the Court must determine whether
Defendant’s prior convictions supporting his
ACCA-enhanced sentence satisfy the definition of
“violent felony” under the remaining clauses of
the ACCA. Since Defendant’s convictions for armed
robbery are not enumerated offenses under §
924(e)(2)(B)(ii), the Court must consider whether they fall
under the “force” clause under §
924(e)(2)(B)(i). In Johnson v. United States, 559
U.S. 133, 140 (2010) (“Johnson 2010”),
the Supreme Court held that the term “physical
force” in § 924(e)(2)(B)(i) must be “strong
physical force,” “a substantial degree of
force,” or “violent force -- that is,
force capable of causing physical pain or injury to another
person.” 559 U.S. at 140 (emphasis in original)
(finding that Florida’s battery statute, which only
required intentional physical contact, no matter how slight,
did not constitute “physical force” under §
924(e)(2)(B)(i)). In addition, to determine whether a prior
conviction qualifies under the ACCA, the court will
ordinarily apply what is called the categorical approach,
which looks only at the elements of the statute under which
the defendant was convicted. See Johnson 2015, 135
S.Ct. at 2557. However, in cases where a particular offense
contains multiple elements listed in the alternative, a
sentencing court may employ a modified categorical approach
and examine a limited set of materials, including the terms
of the charging document, to determine which alternative
elements formed the basis of the defendant’s
conviction. See ...