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United States v. Montes

United States District Court, D. New Mexico

May 22, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
VICENTE A. MONTES, Defendant/Movant. Cr. No. 07-2236 MCA

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KIRTAN KHALSA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER comes before the Court on Defendant/Movant Vicente A. Montes' (“Defendant”) Emergency Motion to Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) (“Section 2255 Motion”), filed June 20, 2016.[1] Plaintiff/Respondent the United States of America (“the Government”) responded in opposition to the motion on October 13, 2016, and Defendant filed a reply in support of it on November 9, 2016. (Docs. 13, 16.) Chief United States District Judge M. Christina Armijo referred this matter to me for proposed findings and a recommended disposition on May 10, 2017. (Doc. 18.)

         In June of 2009, Defendant pled guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (CR Docs. 2, 83, 84.) The Court determined that Defendant had previously been convicted of three violent felonies, and therefore imposed an enhanced sentence of 188 months' imprisonment pursuant to the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1). (CR Docs. 88, 89.) In his Section 2255 Motion, Defendant claims that the Court should reduce his sentence because two of the prior convictions on which the Court relied-i.e., his New Mexico convictions for armed robbery and voluntary manslaughter-no longer qualify as convictions for violent felonies under the ACCA in light of the United States Supreme Court's decision in Johnson v. United States, - U.S. -, 135 S.Ct. 2551 (2015).[2] (Docs. 1, 16.) The Government opposes Defendant's motion, arguing that armed robbery and voluntary manslaughter remain violent felonies under the ACCA despite the Samuel Johnson decision. (Doc. 13.)

         The Court has meticulously reviewed the pleadings and attachments in this civil proceeding and in the underlying criminal case, Cr. No. 07-2236 MCA. The Court has also examined the Presentence Investigation Report (“PSR”) prepared by the United States Probation Office (“USPO”) in Cr. No. 07-2236 MCA.[3] Because Defendant's Section 2255 Motion raises purely legal issues, an evidentiary hearing is unnecessary. 28 U.S.C. § 2255(b). Having carefully considered the parties' submissions, the civil and criminal record, and the relevant law, the Court recommends that Defendant's Section 2255 Motion be DENIED, and that his claims be DISMISSED WITH PREJUDICE.

         I. Factual Background and Procedural History

         On November 6, 2007, the Government charged Defendant by indictment with one count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (CR Doc. 2.) Defendant was initially represented by then-Assistant Federal Public Defender Phillip Medrano, but subsequently retained attorneys Robert Gorence and Louren Oliveros to represent him. (CR Docs. 9, 18-21.) On December 21, 2007, the Court ordered Defendant to be detained pending trial. (CR Doc. 10.) Defendant filed a motion to suppress the evidence against him on September 26, 2008. (CR Doc. 37.) The Court held a two-day evidentiary hearing on the motion, and subsequently issued a memorandum opinion and order denying it. (CR Docs. 51, 54, 64, 65, 67, 100.)

         On June 23, 2009, Defendant pled guilty to the indictment pursuant to a conditional plea agreement, in which he reserved the right to appeal the Court's denial of his motion to suppress. (CR Docs. 83, 84.) In the plea agreement, Defendant acknowledged his understanding that the maximum penalty the Court could impose was

imprisonment for a period of not more than ten (10) years; however, the defendant may be an armed career criminal which carries a minimum sentence of fifteen (15) years['] imprisonment.

(CR Doc. 83 at 2.)

         In the PSR, which was disclosed on July 29, 2009, the USPO found that Defendant's sentence should be enhanced under the ACCA because he had at least three qualifying prior convictions. (PSR at 2 & ¶ 22.) The PSR identified the qualifying prior convictions as: (1) attempt to commit a felony (armed robbery), aggravated battery (deadly weapon), and aggravated assault (deadly weapon), in Case No. D-202-CR-1996-02274; (2) armed robbery (firearm enhancement), in Case No. D-1226-CR-1996-00142; and, (3) voluntary manslaughter and conspiracy to commit murder in Case No. D-202-CR-1996-03913, all under New Mexico law. (Id. ¶¶ 22, 27-29.) The PSR indicated that Case No. D-202-CR-1996-02274 and Case No. D-202-CR-1996-03913 each involved multiple convictions arising out of the same incident. (Id. ¶¶ 27-29.) Thus, under the ACCA, the USPO could only have relied on one conviction from each of these cases to justify the enhancement of Defendant's sentence. 18 U.S.C. § 924(e)(1).

         At a hearing on October 14, 2009, the Court adopted the findings in the PSR without objection, enhanced Defendant's sentence under the ACCA, and sentenced Defendant to 188 months' imprisonment. (CR Doc. 88.) The Court entered a judgment of conviction against Defendant on the same date. (CR Doc. 89.) Defendant timely appealed the Court's denial of his motion to suppress, and the United States Court of Appeals for the Tenth Circuit affirmed the denial on October 29, 2010. (CR Doc. 106.) Defendant has been in federal custody since December of 2007. (PSR at 1.)

         On December 2, 2013, Defendant filed his first Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, (CR Doc. 108), which the Court denied on January 14, 2014. (CR Doc. 110.) On July 7, 2014, the Tenth Circuit issued an Order Denying Certificate of Appealability regarding this motion. (CR Doc. 120.)

         Defendant filed the Section 2255 Motion presently before the Court on June 20, 2016, less than one year after the Supreme Court struck down a portion of the ACCA in Samuel Johnson, 135 S.Ct. at 2551. (Doc. 1.) On June 28, 2016, the Tenth Circuit Court of Appeals granted him leave to file a second or successive motion under 28 U.S.C. § 2255. (CR Doc. 126.) The Government responded in opposition to the Section 2255 Motion on October 13, 2016, and Defendant filed a reply in support of it on November 9, 2016. (Docs. 13, 16.) In his motion, Defendant asks the Court to reduce his sentence from 188 months' to no more than ten years' imprisonment, i.e., the maximum sentence he faced without enhancement under the ACCA. (Doc. 1 at 1.) In support of this request, Defendant argues that the enhancement of his sentence was unconstitutional, because: (1) the Court necessarily relied on the ACCA's “residual clause” to find that his prior armed robbery and voluntary manslaughter convictions were for violent felonies under the Act; and, (2) the Samuel Johnson decision struck down the residual clause as unconstitutionally vague.[4] (Doc. 1 at 6-23; Doc. 16 at 4-15.) In its response in opposition to Defendant's motion, the Government contends that the enhancement of Defendant's sentence was proper because New Mexico armed robbery and voluntary manslaughter qualify as violent felonies under the ACCA's “elements clause, ” which Samuel Johnson left intact.[5] (Doc. 13 at 3-10.) Defendant's Section 2255 Motion is now before the undersigned for proposed findings and a recommended disposition.

         II. Analysis

         A. New Mexico armed robbery with firearm enhancement is a violent felony under the ACCA's elements clause.

         The ACCA provides that a person who violates 18 U.S.C. § 922(g) and has three prior convictions for a “violent felony” or “serious drug offense” is subject to a minimum term of fifteen years' imprisonment. 18 U.S.C. § 924(e)(1). Under the ACCA, the 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; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). Subpart (i) of this definition is known as the “elements clause”; the non-italicized portion of subpart (ii) is known as the “enumerated offenses clause”; and, the italicized portion of subpart (ii) is known as the “residual clause.” Samuel Johnson, 135 S.Ct. at 2556; United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017). In Samuel Johnson, the Supreme Court held that the ACCA's residual clause is unconstitutionally vague, but left its elements and enumerated offenses clauses intact.[6] 135 S.Ct. at 2557, 2563. Armed robbery is not listed in the ACCA's enumerated offenses clause. 18 U.S.C. § 924(e)(2)(B)(ii). Thus, to constitute a violent felony under the ACCA after Samuel Johnson, New Mexico armed robbery with firearm enhancement must satisfy the elements clause.

         To determine whether an offense “has as an element the use, attempted use, or threatened use of physical force against the person of another” within the meaning of the ACCA's elements clause, courts must generally apply the “categorical approach, ” which requires that they consider only the offense's statutory elements, and not the actual facts underlying the defendant's prior conviction. Harris, 844 F.3d at 1263; United States v. Duncan, 833 F.3d 751, 754 (7th Cir. 2016); United States v. Smith, 652 F.3d 1244, 1246 (10th Cir. 2011). Courts must presume that a prior conviction “rested upon nothing more than the least of the acts criminalized” by the state statute. Moncrieffe v. Holder, - U.S. -, 133 S.Ct. 1678, 1684 (2013) (internal punctuation marks omitted). However, “in construing the minimum culpable conduct, such conduct only includes that in which there is a realistic probability, not a theoretical possibility the state statute would apply.” Harris, 844 F.3d at 1264 (quoting Moncrieffe, 133 S.Ct. at 1685). Thus,

[t]o satisfy th[e] categorical approach, it is not necessary that every conceivable factual offense covered by a statute fall within the ACCA. Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, qualifies under the ACCA as a violent felony.

Smith, 652 F.3d at 1246 (citation omitted). To identify the least culpable conduct a state statute criminalizes in the ordinary case, courts look to “[d]ecisions from the state supreme court . . . supplemented by decisions from the intermediate-appellate courts.” Harris, 844 F.3d at 1264.

         In Curtis Johnson, the Supreme Court held that the term “physical force” as used in the ACCA's elements clause means “violent force-that is, force capable of causing physical pain or injury to another person.” Curtis Johnson, 559 U.S. at 140 (emphasis in original); United States v. Ramon Silva, 608 F.3d 663, 669 (10th Cir. 2010). The Supreme Court therefore concluded that the force element of Florida battery, which can be satisfied by “the most nominal contact, such as a tap on the shoulder without consent, ” did not categorically rise to the level of physical force under the ACCA. Curtis Johnson, 559 U.S. at 138-40 (internal punctuation marks and citation omitted). According to Curtis Johnson, such force consists of something more than mere offensive touching, although it “might consist” of no more than “a slap in the face, for example.”[7] Id. at 143; Harris, 844 F.3d at 1265.

         To decide whether New Mexico armed robbery with firearm enhancement is a violent felony under the ACCA's elements clause, then, this Court must look to state law to determine whether the minimum culpable conduct allowing for a conviction in the ordinary case necessarily includes the use of “physical force” as Curtis Johnson defined it. In other words, do the elements of the offense categorically require the actual, threatened, or attempted use of force capable of causing physical pain or injury to another person?

New Mexico's robbery statute provides that
[r]obbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.[8]
Whoever commits robbery is guilty of a third degree felony.
Whoever commits robbery while armed with a deadly weapon is, for the first offense, guilty of a second degree felony and, for second and subsequent offenses, is guilty of a first degree felony.

N.M. Stat. Ann. § 30-16-2.

This statutory language shows that armed robbery is not a distinct offense from robbery; the offense is robbery whether or not armed, and whether or not one is an accessory. “Armed robbery” is a way to commit “robbery” and, if done in that way, the penalty is greater but the basic offense remains robbery.

New Mexico v. Roque, 1977-NMCA-094, ¶ 8, 91 N.M. 7, 569 P.2d 417. Thus, to determine whether armed robbery is a violent felony under the ACCA, the Court must analyze the elements of robbery, plus the additional element of commission of the offense “while armed with a deadly weapon.”[9] N.M. Stat. Ann. § 30-16-2.

         In addition, Defendant's armed robbery conviction included a firearm enhancement pursuant to Section 31-18-16 of the New Mexico Statutes Annotated. (PSR ¶ 28.) Section 31-18-16 provides that

[w]hen a separate finding of fact by the court or jury shows that a firearm was used in the commission of a noncapital felony, the basic sentence of imprisonment . . . shall be increased by one year [for a first offense and] by three years [for a second or subsequent offense]. . . . If the case is tried before a jury and if a prima facie case has been established showing that a firearm was used in the commission of the offense, the court shall submit the issue to the jury by special interrogatory. If the case is tried by the court and if a prima facie case has been established showing that a firearm was used in the commission of the offense, the court shall decide the issue and shall make a separate finding of fact thereon.

N.M. Stat. Ann. § 31-18-16; see also N.M. U.J.I. 14-6013 (for firearm enhancement to apply, state must prove beyond reasonable doubt that crime was committed “with the use of a firearm”). That Defendant committed armed robbery with the use of a firearm was thus a fact, other than the fact of a prior conviction, that increased the penalty for his offense beyond the prescribed statutory maximum, and was constitutionally required to be charged, submitted to the jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476, 494-95 (2000).[10] Whether it is characterized as an “element” or a “sentencing factor” does not matter. Id. at 494. If, as here, “statutory alternatives carry different punishments, then under Apprendi they must be elements.” Mathis, 136 S.Ct. at 2256.

         Had Defendant been convicted of armed robbery without the firearm enhancement, the Court would have proposed to find that his offense of conviction no longer qualifies as a violent felony under the ACCA. See United States v. King, 2016 WL 8809051 (D.N.M. Dec. 1, 2016), supplemented by United States v. King, 2017 WL 1506765 (D.N.M. Feb. 17, 2017), adopted by United States v. King, - F.Supp.3d -, 2017 WL 1506766 (D.N.M. Mar. 31, 2017). However, as further explained below, with the firearm enhancement's added requirement of use of a firearm in the commission of the offense, the Court proposes to find that New Mexico ...


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