United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
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],  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.
and Procedural Background
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].
§ 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.
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imprisonment convictions are no longer valid predicate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.
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
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.
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.
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.
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 ...