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United States v. Dallas

United States District Court, D. New Mexico

May 3, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
MICHAEL DALLAS, Defendant/Movant.

          PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION

          Laura Fashing United States Magistrate Judge.

         THIS MATTER comes before the Court on Michael Dallas's Expedited Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255. Doc. 66.[1] The Honorable Martha Vázquez referred this case to me to recommend to the Court an ultimate disposition of the case. No. CIV 16-0676 MV/LF, Doc. 5. Having reviewed the submissions of the parties and the relevant law, I recommend that the Court deny Dallas's motion.

         I. Background Facts and Procedural Posture

         On June 13, 2006, Dallas pled guilty to a one-count superseding indictment. See Docs. 27, 42, 43. The superseding indictment charged Dallas with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The probation officer who prepared Dallas's presentence report (“PSR”) determined that Dallas's base offense level was 24 under USSG[2] § 2K2.1(a)(2) because Dallas committed the offense after having sustained at least two prior felonies that were crimes of violence. PSR ¶ 14. Dallas received a two-level enhancement pursuant to USSG § 3C1.2 for reckless endangerment during flight because he fled from law enforcement officers and resisted being placed in handcuffs during his arrest. PSR ¶ 18. However, because Dallas had three prior violent felony convictions, the probation officer determined that Dallas was subject to an enhanced sentence as an armed career criminal under USSG § 4B1.4 and 18 U.S.C. § 924(e). PSR ¶ 20. Consequently, Dallas's offense level became 33. Id. He received a three-level reduction for acceptance of responsibility under USSG § 3E1.1. PSR ¶ 21. His total offense level was 30, and his history category was VI, which resulted in an advisory guideline sentencing range of 168 to 210 months in prison. PSR ¶¶ 22, 35, 74. But because Dallas was considered an armed career criminal under 18 U.S.C. § 924(e)(1), he was subject to a mandatory minimum sentence of 180 months in prison, and his guideline imprisonment range therefore was 180 to 210 months. PSR ¶ 74.

         Neither party objected to the PSR. See Docs. 45, 46. On September 27, 2006, the Court sentenced Dallas to the minimum mandatory sentence of 180 months in prison and entered its judgment the same day. See Doc. 47 at 1. In October 2008, Dallas filed a Motion to Vacate under 28 U.S.C. § 2255, which the Court dismissed as untimely. See Docs. 52, 59, 60. On June 6, 2016, the Tenth Circuit authorized Dallas to file a second or successive 28 U.S.C. § 2255 motion to raise a claim under the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Doc. 64. On June 24, 2016, Dallas timely filed an Expedited Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 (and Johnson v. United States). Doc. 66. The government filed its response on August 29, 2016, Doc. 71, and Dallas filed his reply on December 14, 2016, Doc. 78.

         II. Dallas's Claims and the Government's Response

         Dallas raises a single issue in his motion. He argues that because the Supreme Court held in Johnson that the Armed Career Criminal Act's (ACCA's) “residual clause” is unconstitutionally vague, his three prior felony aggravated battery convictions under New Mexico law no longer qualify as violent felonies. Doc. 66 at 2-7. This argument necessarily depends on a determination that the only way that his prior aggravated battery convictions qualified as violent felonies was because they fell within ACCA's residual clause, and that they did not qualify under the “elements clause.” In response, the government argues that Dallas has not met his burden of establishing that the Court relied on the residual clause in sentencing him, and that the Court should deny his motion on that basis. Doc. 71 at 3-5. The government further argues that if the Court reaches the merits of Dallas's claim, Dallas's three prior aggravated battery convictions qualify as violent felonies under ACCA's “elements clause.” Id. at 5-14.

         III. Discussion

         As an initial matter, neither the PSR nor the sentencing Court specified whether it was relying on the residual clause in concluding that Dallas was subject to ACCA. See generally PSR; Doc. 57. Thus, the only way that Dallas can establish that the sentencing Court relied on the residual clause is to establish that his prior aggravated battery convictions do not qualify as violent felonies under ACCA in any other way. The Court consequently will address the merits of Dallas's motion.

         A. The Categorical and Modified Categorical Approach to Determining Whether a Crime is a Violent Felony under ACCA

         ACCA provides, in pertinent part, that “[i]n the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony . . . committed on occasions different from one another, such person shall be . . . imprisoned not less than fifteen years . . . .” 18 U.S.C. § 924(e)(1). “[T]he term ‘violent felony' means any crime punishable by imprisonment for a term exceeding one year . . . that-(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “elements clause”]; or (ii) is burglary, arson, or extortion, involves use of explosives [the “enumerated clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the “residual clause”] . . . .” 18 U.S.C. § 924(e)(2)(B). In Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), the Supreme Court struck down the residual clause as unconstitutionally vague, but it left intact the elements clause and the enumerated clause. The following year the Court held that Johnson announced a substantive rule that applied retroactively on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Thus, the issue properly before the Court in this case is whether Dallas's prior convictions still qualify as violent felonies under ACCA.

         The parties agree that Dallas has three prior felony convictions for aggravated battery under N.M. Stat. Ann. §§ 30-3-5(A) and (C). See Doc. 66 at 1-2; Doc. 71 at 2, 9-10 & Exhs. 1-5. They also agree that these convictions do not fall within ACCA's enumerated clause. See Doc. 66 at 3; Doc. 71 at 5. Thus, to qualify as an armed career criminal, Dallas's three prior aggravated battery convictions must satisfy the elements clause, that is, the crime of aggravated battery under N.M. Stat. Ann. §§ 30-3-5(A) and (C) must have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).

         The Court must apply the “categorical approach” to determine whether a prior conviction falls within ACCA's elements clause. Descamps v. United States, 133 S.Ct. 2276, 2283 (2013). This means that the Court must look only to the elements of the statute under which the defendant was convicted, not at the facts underlying the prior conviction. See Mathis v. United States, 136 S.Ct. 2243, 2253 (2016); Descamps, 133 S.Ct. at 2283. If the “least of the acts criminalized” by the statute does not have as an element the actual, attempted, or threatened use of violent force or a substantial degree of force against another person, then the defendant's conviction under that statute is not a violent felony within the meaning of the elements clause. Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013) (quotation omitted and alteration adopted). Thus, when applying the categorical approach, the Court must identify the least culpable conduct prohibited by the statute of conviction and presume that the defendant's conviction rested on nothing more than this conduct. Id. To identify the least culpable conduct, the Court looks to how state courts interpret the statute. See United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017) (“state law defines the substantive elements of the crime of conviction”). As part of this step, the Court must analyze “the version of state law that the defendant was actually convicted of violating.” McNeill v. United States, 563 U.S. 816, 821 (2011).

         The Supreme Court held in an earlier Johnson case-Johnson v. United States, 559 U.S. 133, 140 (2010)[3]-that the term “physical force” as used in the elements clause of ACCA “means violent force-that is, force capable of causing physical pain or injury to another person.” (Emphasis in original.) Nonetheless, the force required to satisfy that element need not be sufficient to cause serious injury-it “might consist . . . of only that degree of force necessary to inflict pain-a slap in the face, for example.” Id. at 1272. Therefore, in evaluating whether Dallas's prior aggravated battery convictions under New Mexico law constitute violent felonies under ACCA, the Court first must consider whether the state statute that he violated necessarily proscribes conduct that ...


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