United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER NOT ADOPTING MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
HONORABLE MARTHA VAZQUEZ, UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on United States Magistrate Judge
Carmen E. Garza's Proposed Findings and Recommended
Disposition (the “PFRD”), (CV Doc. 19),
filed November 14, 2016. In the PFRD, Judge Garza concluded that
Petitioner Eric Lamont Johnson was improperly sentenced under
the United States Sentencing Guidelines and recommended that
his Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal
Custody (the “Motion”), (CV Doc. 1), be
granted. (CV Doc. 19 at 12).
parties were notified that written objections to the PFRD
were due within 14 days. (CV Doc. 19 at 12). Respondent
United States of America filed United States'
Objections to the Magistrate Judge's Proposed Findings
and Recommended Disposition (the
“Objections”), (Doc. 21), on November 25, 2016,
and Petitioner filed his Response to United States'
Objections to Magistrate Judge's Proposed Findings and
Recommended Disposition, (Doc. 22), on November 30,
2016. After a de novo review of the record and the
PFRD, the Court denies Petitioner's Motion.
October 21, 2004, Petitioner pled guilty to possessing a
firearm during and in relation to a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1)(A). (CR Doc. 144).
Pursuant to the plea agreement, Respondent recommended
Petitioner receive a 60 month sentence-the statutory minimum.
(CR Doc. 147 at 6). However, Petitioner qualified as a career
offender under the United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) based on
prior convictions for crimes of violence. (CR Doc. 235 at 3).
Specifically, Petitioner's convictions for being a
prisoner in possession of a weapon qualified as crimes of
violence under the residual clause in § 4B1.2(a)(2) of
the Guidelines, which defined a crime of violence as any
crime that “involves conduct that presents a serious
potential risk of physical injury to another.” (CR Doc.
235 at 3); U.S.S.G. § 4B1.2(a)(2) (2008). Because of
Petitioner's career offender status, his Guideline
sentence range was 360 months to life imprisonment. (CR Doc.
246 at 7, 10, 29, 32-33). Ultimately, Petitioner received a
180 month sentence in December, 2008. (CR Doc. 246 at 37,
9, 2016, Petitioner filed his Motion, arguing that he was
unconstitutionally sentenced following the Supreme Court of
the United States' ruling in Johnson v. United
States, 135 S.Ct. 2551 (2015), and the Tenth Circuit
Court of Appeals' ruling in United States v.
Madrid, 805 F.3d 1204 (10th Cir. 2015). (CV Doc. 9 at
3-5). In Johnson, the Supreme Court held that the
residual clause in the Armed Career Criminal Act
(“ACCA”) was unconstitutionally vague. 135 S.Ct.
at 2557. In Madrid, the Tenth Circuit concluded that
the identical residual clause in § 4B1.2(a)(2) is also
unconstitutionally vague and “cannot be used to
justify” enhancing a criminal defendant's sentence.
805 F.3d at 1210. The Tenth Circuit necessarily held in
Madrid that the Guidelines may be void for
vagueness. Id. at 1210-11. Petitioner argued that
Johnson and Madrid are retroactively
applicable to his case and he is entitled to be resentenced.
(CV Doc. 9 at 8).
countered that Johnson is not retroactively
applicable in collateral proceedings challenging the
constitutionality of sentences enhanced under §
4B1.2(a)(2). (CV Doc. 12 at 4-10). According to Respondent,
Johnson, as applied to § 4B1.2(a)(2), operated
as a procedural rule that did not apply retroactively. (CV
Doc. 12 at 4-10). In the alternative, Respondent requested
the Court stay these proceedings pending the outcome of
Beckles v. United States, 137 U.S. 886 (2017), which
had not yet been decided.
November 11, 2016, Judge Garza declined to stay these
proceedings and recommended granting Petitioner's Motion.
(CV Doc. 19 at 3, 12). Judge Garza denied a stay because
Petitioner could have been eligible for release if the Court
granted Petitioner's Motion. (CV Doc. 19 at 3) (citing
U.S. v. Miller, No. 16-8080 (10th Cir. Nov. 2,
2016); U.S. v. Carey, No. 16-8093 (10th Cir. Nov. 4,
2016)). Further, Judge Garza concluded that Johnson
and Madrid were retroactively applicable to
Petitioner's sentence following the Supreme Court's
decision in Welch v. United States, 136 S.Ct. 1257
(2016). Finally, Judge Garza examined the record and
determined that Petitioner's sentence was enhanced, at
least in part, in reliance on the unconstitutional residual
clause in § 4B1.2(a)(2). (CV Doc. 19 at 10-11). Thus,
because Petitioner was unconstitutionally sentenced and was
eligible for relief under Johnson, Judge Garza
recommended granting Petitioner's Motion. (CV Doc. 19 at
timely objected to Judge Garza's PFRD. (CV Doc. 21).
Respondent primarily objected to Judge Garza's
declination to stay these proceedings. Respondent maintained
that the more prudent course of action was to stay this case
pending the Supreme Court's decision in Beckles.
(CV Doc. 21 at 2). Finally, Respondent stated that if the
Court denied a stay, the Court should reject Judge
Garza's recommendation. (CV Doc 21 at 2-3). Respondent
cites its prior brief but does not specifically object to any
part of Judge Garza's analysis. (CV Doc. 21 at 3).
response, Petitioner argued that a stay was inappropriate
following the Tenth Circuit's orders in United States
v. Miller, No. 16-8080 (10th Cir. Nov. 2, 2016),
United States v. Carey, No. 16-9083 (10th Cir. Nov.
4, 2016), and United States v. Smith, No. 16-8091
(10th Cir. Nov. 9, 2016). Petitioner also cited his prior
briefing in support of Judge Garza's PFRD. (CV Doc. 22 at
March 6, 2017, the Supreme Court decided Beckles,
holding that the Guidelines are not subject to vagueness
challenges and that the residual clause in § 4B1.2 is
not unconstitutionally vague. 137 S.Ct. at 891-92.
Specifically, the Court reasoned that “[b]ecause they
merely guide the district courts' discretion, the
Guidelines are not amenable to a vagueness challenge.”
Id. at 894. Thus, Johnnson is inapplicable
to the Guidelines, and the Tenth Circuit's decision in
Madrid has been abrogated. Id. at 892 n.2.
to Rule 8 of the Rules Governing Section 2255 Proceedings for
the United States District Courts, a district judge may,
under 28 U.S.C. § 636(b), refer a pretrial dispositive
motion to a magistrate judge for proposed findings of fact
and recommendations for disposition. Within fourteen days of
being served, a party may file objections to this
recommendation. Rule 8(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts. A party
may respond to another party's objections within fourteen
days of being served with a copy; the rule does not provide
for a reply. Fed.R.Civ.P. 72(b).
resolving objections to a magistrate judge's
recommendation, the district judge must make a de
novo determination regarding any part of the
recommendation to which a party has properly objected. 28
U.S.C. § 636(b)(1)(C). Filing objections that address
the primary issues in the case “advances the interests
that underlie the Magistrate's Act, including judicial
efficiency.” U.S. v. One Parcel of Real Prop., With
Bldgs., Appurtenances, Improvements, & Contents, 73
F.3d 1057, 1059 (10th Cir. 1996). Objections must be timely
and specific to preserve an issue for de novo review
by the district court or for appellate review. Id.
at 1060. Additionally, issues “raised for the first
time in objections to the magistrate judge's
recommendation are deemed waived.” Marshall v.
Chater, 75 F.3d 1421, 1426 ...