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United States v. Barela

United States District Court, D. New Mexico

April 13, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ANTHONY BARELA, 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”) Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 [Doc. 1],[2] 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.

         Factual and Procedural Background

         On 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 2-3].

         In his § 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 [2015] [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.

         In 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.

         In 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.

         Discussion

         Under 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 felony” as:

[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. at 2557.

         Now 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 ...


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