United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
MATTER is before the Court on Magistrate Judge Lourdes A.
Martínez' Proposed Findings and
Recommended Disposition (Doc. 7)  (hereinafter
“PF&RD”), entered on March 6, 2017. On March
20, 2017, Defendant/Movant (hereinafter
“Defendant”) filed objections to the PF&RD.
[Doc. 8]. The Government did not respond to
Defendant's objections and the time for doing so has
passed. The Court has conducted a de novo review of
those portions of the PF&RD to which Defendant objects
and finds that the objections are without merit. Accordingly,
the Court will: (1) overrule the Defendant's objections
as meritless; (2) adopt the PF&RD; (3) deny
Defendant's § 2255 motion [Doc. 1]; and (4)
enter a final judgment dismissing this case with prejudice.
explained in the PF&RD, on June 13, 2011, pursuant to a
Plea Agreement [Cr.Doc. 28], Defendant pled guilty
to an Information [Cr.Doc. 25] charging him with:
(1) armed bank robbery, in violation of 18 U.S.C.
§§ 2113(a) and (d); and (2) carrying, possessing,
and brandishing a firearm “during and in relation to
and in furtherance of a crime of violence . . ., namely armed
bank robbery, as charged in Count 1, ” in violation of
18 U.S.C. § 924(c)(1)(A)(ii). See [Doc.
7 at 2]. On November 21, 2011, Defendant was sentenced
to a term of 30 months as to Count 1, and 84 months as to
Count 2, with the terms to run consecutively, for a total
term of 114 months. [Cr.Doc. 42 at 2]. The Court
also imposed a total term of 5 years of unsupervised release.
Id. at 3. In his § 2255 motion, Defendant
contends that his seven-year sentence for carrying a firearm
during a crime of violence, in violation of 18 U.S.C. §
924(c), is unconstitutional because armed bank robbery no
longer qualifies as a crime of violence following the holding
of Johnson v. United States, 135 S.Ct. 2551 (2015)
(“Johnson 2015”). [Doc. 1 at
1]. Specifically, Defendant contends that his sentence was
improperly enhanced by seven years under §
924(c)(1)(A)(ii) because armed bank robbery, §§ 18
U.S.C. § 2113(a) and (d), does not qualify as a crime of
violence under either the force clause of § 924(c)(3)(A)
or the residual clause of § 924(c)(3)(B). See
Id. at 1-2. Defendant contends that armed bank robbery
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 as that is defined in Johnson v.
United States, 559 U.S. 133, 140 (2010)
(“Johnson 2010”). See Id. at 7.
In the alternative, Defendant contends that armed bank
robbery cannot qualify as a crime of violence under the
residual clause of § 924(c)(3)(B) because that clause is
void for vagueness pursuant to the holding in Johnson
2015. See Id. at 9-10.
further explained in the PF&RD (see Doc. 7 at
4), in Johnson 2015, the Supreme Court held that the
residual clause of the ACCA, is unconstitutionally vague (135
S.Ct. at 2557). However, the Magistrate Judge noted that
Defendant's sentence was not enhanced under the ACCA,
but, instead, was enhanced under § 924(c), which
mandates an enhanced sentence for “any person who,
during and in relation to any crime of violence or drug
trafficking crime . . ., uses or carries a firearm, or who,
in furtherance of any such crime, possesses a firearm.”
[Doc. 7 at 4] (quoting § 924(c)(1)(A)). A
“crime of violence” is defined in this subsection
[A]n offense that is a felony and--
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
§ 924(c)(3)(A)-(B). The Magistrate Judge noted that
“[t]he issue of whether the holding of Johnson
2015 applies to the residual clause of §
924(c)(3)(B) is unsettled, ” that appellate courts have
divided on this question, and that the issue is currently
pending before the Tenth Circuit in United States v.
Hopper, 10th Cir. No. 15-2190. [Doc. 7 at 5].
Regardless, the Magistrate Judge found that the Court need
not determine in this case whether Johnson 2015
should apply to the residual clause of § 924(c)(3)(B)
because Defendant's armed bank robbery conviction is a
crime of violence under the force or elements clause, §
924(c)(3)(A). See id.
the modified categorical approach set forth in
Mathis, the Magistrate Judge determined that
Defendant was convicted of the first set of elements under 18
U.S.C. § 2113(a), which provides:
(a) Whoever, by force and violence, or by intimidation,
takes, or attempts to take, from the person or presence of
another, or obtains or attempts to obtain by extortion any
property or money or any other thing of value belonging to,
or in the care, custody, control, management, or possession
of, any bank, credit union, or any savings and loan
association . . .
Shall be fined under this title or imprisoned not more than
twenty years, or both.
See Id. at 6. The Magistrate Judge further noted
that Defendant was also convicted under § 2113(d), which
Whoever, in committing, or in attempting to commit, any
offense defined in subsections (a) and (b) of this section,
assaults any person, or puts in jeopardy the life of any
person by the use of a dangerous weapon or device, shall be
fined under this title or imprisoned not more than
twenty-five years, or both.
See Id. The Magistrate Judge rejected
Defendant's contention that his conviction under
§§ 2113(a) and (d) does not satisfy the definition
of “physical force” as set forth in Johnson
2010, noting that Johnson 2010 addressed the
definition of “physical force” under the ACCA,
and Defendant provided no support for his contention that
this holding also applies to the definition of
“physical force” under § 924(c)(3)(A).
See id. at 7-8. Nevertheless, the Magistrate Judge
found that Defendant's conviction for armed bank robbery
under §§ 2113(a) and (d) meets Johnson
2010's definition of “physical force”
“because armed bank robbery requires that, in
committing or attempting to commit the offense, the defendant
‘assault[ed] any person, or put injeopardy the life of any person, by the use of a
dangerous weapon or device.'” Id. at 8
(quoting § 2113(d), emphasis added). Because the force
clause of § 924(c)(3)(A) applies to crimes that have
“as an element the use, attempted use, or
threatened use of physical force against the person or
property of another” (emphasis added), and the
definition set forth in Johnson 2010 includes
“force capable of causing physical pain or
injury to another person” (559 U.S. at 140, emphasis
added), the Magistrate Judge ...