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United States v. Hammons

United States District Court, D. New Mexico

April 25, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ROBERT L. HAMMONS, Defendant/Movant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION [1]

          LOURDES A. MARTÍNEZ, UNITED STATES MAGISTRATE JUDGE

          THIS MATTER is before the Court on Defendant-Movant Robert L. Hammons' Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 [Doc. 6], [2] filed on June 23, 2016. Plaintiff/Respondent (hereinafter “the Government”) filed a response on November 29, 2016. [Doc. 20], and Defendant/Movant (hereinafter “Defendant”) filed a reply on January 27, 2017 [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. 9]. 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-07-1164, the undersigned recommends, for the reasons set forth below, that Defendant's § 2255 motion [Doc. 6] and be DENIED and that this case be DISMISSED with prejudice.

         Factual and Procedural Background

         On October 30, 2008, pursuant to a Plea Agreement [Cr.Doc. 33], Defendant pled guilty to Count 1 of an Indictment [Cr.Doc. 2], 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 February 2, 2012, Defendant was sentenced to a term of 180 months imprisonment, and 3 years of supervised release. [Cr.Doc. 109 at 2-3].

         In his § 2255 motion, Defendant contends that his convictions for false imprisonment and aggravated assault on a household member are no longer violent felonies under either the Armed Career Criminal Act (“ACCA”) or the Sentencing Guidelines following the holding of Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson 2015”). See [Doc. 6 at 4]. Defendant contends that, without the enhancements imposed pursuant to the ACCA and the Sentencing Guidelines, Defendant is subject to a sentence of no more than ten years. See Id. at 24. Therefore, Defendant asks the Court to vacate his sentence and resentence him. See id.

         In response, the Government concedes that Defendant's false imprisonment convictions are no longer valid predicate offenses under the ACCA. See [Doc. 20 at 2]. However, the Government contends that Defendant is still an armed career criminal because he has three remaining valid ACCA-predicate convictions -- two prior convictions for Oregon robbery in the first degree, and one prior conviction for New Mexico aggravated assault against a household member with a deadly weapon. See id.

         In reply, Defendant contends that a conviction under Oregon's statute for third degree robbery does not constitute a crime of violence under the ACCA's force clause because it does not meet the definition of “violent force” required by Johnson v. United States, 559 U.S. 133, 140 (2010) (“Johnson 2010”). See [Doc. 23 at 3]. Defendant notes that his prior convictions were under Oregon's first degree robbery statute, which requires that a person commit robbery in the third degree and is either armed with a deadly weapon, uses or attempts to use a dangerous weapon, or causes or attempts to cause serious physical injury to any person. See Id. at 2-3. Defendant states that it “is not conclusive” as to whether Oregon's first degree robbery statute sets forth separate elements of commission of the offense, or whether it sets forth alternative means of committing the offense. Id. at 3. Therefore, Defendant asks the Court to “give consideration as to whether or not [Oregon's first degree robbery statute] is setting forth the elements of the offense of robbery in the first degree or describing the alternative means by which the offense can be committed.” Id.

         In addition, Defendant contends that his conviction for New Mexico aggravated assault against a household member is not a violent felony for purposes of the ACCA. See Id. at 4-9. Defendant acknowledges that the Tenth Circuit in United States v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016) held that New Mexico aggravated assault is a crime of violence under the Sentencing Guidelines, U.S.S.G. § 2L1.2(b)(1)(A)(ii), and Defendant states that he recognizes that “the Court may consider itself at least guided, if not bound, by the circuit court's ruling.” Id. at 9. Nevertheless, Defendant maintains that New Mexico aggravated assault does not require sufficient physical force to constitute a violent felony because a person “can violate a New Mexico aggravated assault statute, including against a household member, without either intending to injure the victim or, at least, intending to cause the victim to fear injury.” Id. At 7 (citation omitted). Defendant also contends that “the statute under which [Defendant] was convicted differs from the statue under which Mr. Maldonado-Palma was convicted, specifically requiring that the aggravated assault be against a ‘household member.'” Id. at 9.

         Discussion

         The United States Supreme Court recently ruled in Beckles v. United States, 137 S.Ct. 886, 897 (2017) that the Sentencing Guidelines are not subject to a void-for-vagueness challenge. In addition, the parties filed a joint statement in which they state that the ruling in Beckles “does not affect the issues raised in Defendant's pending § 2255 motion since Defendant was sentenced as an armed career criminal under [the ACCA].” [Doc. 25]. Therefore, the Court will only consider Defendant's claims regarding the ACCA, and will not address Defendant's claims that he was improperly sentenced under the Sentencing Guidelines.

         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 ...

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