United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
KHALSA UNITED STATES MAGISTRATE JUDGE
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. 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.)
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). (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.)
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. 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.
Factual Background and Procedural History
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.)
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[']
(CR Doc. 83 at 2.)
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).
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.)
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.)
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. (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. (Doc. 13 at 3-10.) Defendant's
Section 2255 Motion is now before the undersigned for
proposed findings and a recommended disposition.
New Mexico armed robbery with firearm enhancement is a
violent felony under the ACCA's elements
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. 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.
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
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.
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.” Id. at
143; Harris, 844 F.3d at 1265.
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
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.
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
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.” N.M. Stat. Ann. § 30-16-2.
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
[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
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). 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.
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 ...