United States District Court, D. New Mexico
Burkhead, Assistant United States Attorney (James D. Tierney,
Acting United States Attorney), Albuquerque, New Mexico, for
Gregory M. Acton, Albuquerque, New Mexico, for Defendant.
ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION OF THE MAGISTRATE JUDGE
MATTER comes on for consideration of Defendant Jerome
Yazzie's Objection to Proposed Findings and Recommended
Disposition filed May 16, 2017 (Doc. 19,
1:16-cv-00704-PJK-WPL; Doc. 213, 1:11-cr-03108-PJK-1). In
accordance with 28 U.S.C. § 636(b)(1)(B), this case was
referred to Magistrate Judge William P. Lynch, who
recommended that Mr. Yazzie's Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 (Docs.
1 & 3, 1:16-cv-00704-PJK-WPL; Docs. 194 & 195,
1:11-cr-03108-PJK-1) be denied and the case be dismissed with
Yazzie's objection revolves around 18 U.S.C. §
924(c)(3), which defines the term “crime of
violence.” Under § 924(c)(3)(B), a crime is
violent if it, “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.” This language is similar, but not identical,
to the residual clause in the Armed Career Criminal Act
(“ACCA”). See 18 U.S.C. §
924(e)(2)(B)(ii). In Johnson v. United States, the
Supreme Court determined that the residual clause in the ACCA
was unconstitutionally vague, 135 S.Ct. 2551, 2557 (2015),
and later declared that its holding would apply retroactively
on collateral review, Welch v. United States, 136
S.Ct. 1257, 1264-65 (2016).
magistrate judge recommended that this court not extend
Johnson's reasoning to § 924(c)(3)(B), and
concluded that it was unnecessary to determine whether Mr.
Yazzie's predicate convictions qualified as crimes of
violence under § 924(c)(3)(A). (Doc. 18, at 4,
1:16-cv-00704-PJK-WPL; Doc. 212, at 4, 1:11-cr-03108-PJK-1).
Mr. Yazzie argues that the magistrate judge missed the narrow
core of his argument: that § 924(c)(3)(B) is
unconstitutionally vague only because a court would now be
unable to look at the actual facts of the predicate
convictions under Alleyne v. United States, 133
S.Ct. 2151 (2013). The Court in Alleyne held that
“any fact that increases the mandatory minimum is an
‘element' that must be submitted to the
jury.” Id. at 2155. According to Mr. Yazzie,
only a jury could decide whether his predicate convictions
were crimes of violence.
court is not persuaded. As discussed by the magistrate judge,
§ 924(c)(3)(B) materially differs from the ACCA's
residual clause. See United States v. Hill, 832 F.3d
135, 145-150 (2d Cir. 2016); United States v.
Taylor, 814 F.3d 340, 375-79 (6th Cir. 2016). For
example, § 924(c)(3)(B) uses the word “may,
” whereas the ACCA does not. Although a categorical
approach might apply, see Johnson, 135 S.Ct. at
2561-62, Mr. Yazzie's argument that Alleyne
would restrict the court's analysis is really one for
retroactivity of that holding - an argument that has been
rejected. In re Payne, 733 F.3d 1027, 1029-30 (10th
Cir. 2013). Moreover, Mr. Yazzie's argument is
procedurally barred because it was not raised at trial or on
appeal, and is time-barred unless Johnson applies,
which it does not.
court must issue or deny a certificate of appealability
(“COA”) when it enters a final order adverse to
the applicant. A COA should issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). An
applicant can satisfy this standard by demonstrating that the
issues raised are debatable among jurists, a court could
resolve the issues differently, or the questions warrant
further proceedings. Slack v. McDaniel, 529 U.S.
473, 483-84 (2000). The court denies a COA because Mr.
Yazzie's narrow objection is not reasonably debatable.
THEREFORE, IT IS ORDERED, ADJUDGED and DECREED that:
Defendant Jerome Yazzie's Objection to Proposed Findings
and Recommended Disposition filed May 16, 2017 (Doc. 19,
1:16-cv-00704-PJK-WPL; Doc. 213, 1:11-cr-03108-PJK-1) is
Proposed Findings and Recommended Disposition of the
Magistrate Judge (Doc. 18, 1:16-cv-00704-PJK-WPL; Doc. 212,
1:11-cr-03108-PJK-1) are adopted.
Yazzie's Motion to Vacate, Set Aside, or Correct Sentence
under 28 U.S.C. § 2255 (Docs. 1 & 3,
1:16-cv-00704-PJK-WPL; Docs. 194 & 195,
1:11-cr-03108-PJK-1) is denied.
COA is denied.
separate judgment shall be entered in the civil case