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United States v. Pacheco

United States District Court, D. New Mexico

June 1, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
SHAMON DOMINIC PACHECO, Defendant/Petitioner.

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER is before the Court on United States Magistrate Judge Carmen E. Garza's Proposed Findings and Recommended Disposition (“PFRD”), filed August 1, 2016. (CV Doc. 13).[1] In the PFRD, the Magistrate Judge concluded that Petitioner Shamon Dominic Pacheco was properly sentenced under the Armed Career Criminal Act (“ACCA”), and recommended that his Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Motion”), (CV Doc. 1), be dismissed with prejudice.

         The parties were notified that written objections to the PFRD were due within 14 days. (CV Doc. 13 at 14). Petitioner filed Defendant-Petitioner's Objections to Proposed Findings and Recommended Dispositions (“Objections”), (Doc. 14), on August 18, 2016. After a de novo review of the record and the PFRD, the Court adopts Judge Garza's PFRD in its entirety.

         I. Background

         Petitioner is incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania. (CV Doc. 1). On February 24, 2005, Petitioner pled guilty to being a felon in possession of a firearm or ammunition, in violation of 18 U.S.C. §§ 922(g)(1). (CV Doc. 11-1 at 1). Petitioner was sentenced to 180 months imprisonment because he was found to have met the classification as an armed career criminal under the ACCA based on his prior criminal convictions. (CV Doc. 11 at 1). His prior convictions included: (1) aggravated assault with a deadly weapon and shooting at or from an occupied motor vehicle; (2) shooting from a motor vehicle and aggravated assault with a deadly weapon; and (3) aggravated battery against a household member with a deadly weapon and child abuse. (CV Doc. 11-1 at 9, 12-14).

         On April 25, 2016, Petitioner requested review of his sentence pursuant to the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 1551 (2015) (“Johnson II”). (CV Doc. 1 at 6). This Court referred this matter to Judge Garza to conduct analysis and to make findings of fact and a recommended disposition. (CV Doc. 2). Judge Garza concluded that Petitioner's claim should be dismissed with prejudice because Petitioner was correctly classified under the ACCA.

         II. Objections

         Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings for the United States District Courts, a district judge may, under 28 U.S.C. § 636(b), refer a pretrial dispositive motion to a magistrate judge for proposed findings of fact and recommendations for disposition. Within fourteen days of being served, a party may file objections to this recommendation. Rule 8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. A party may respond to another party's objections within fourteen days of being served with a copy; the rule does not provide for a reply. F . R. C . P. 72(b).

         ED IV[2]

         When resolving objections to a magistrate judge's recommendation, the district judge must make a de novo determination regarding any part of the recommendation to which a party has properly objected. 28 U.S.C. § 636(b)(1)(C). Filing objections that address the primary issues in the case “advances the interests that underlie the Magistrate's Act, including judicial efficiency.” United States v. One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and Contents, 73 F.3d 1057, 1059 (10th Cir. 1996). Objections must be timely and specific to preserve an issue for de novo review by the district court or for appellate review. Id. at 1060. Additionally, issues “raised for the first time in objections to the magistrate judge's recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see also United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.”).

         In this case, Petitioner argued that his sentence was enhanced based on the residual clause of the ACCA, in violation of his Due Process Rights. Petitioner alleged that his prior convictions for (1) aggravated assault with a deadly weapon; (2) shooting at or from an occupied motor vehicle; (3) aggravated battery against a household member with a deadly weapon; and (4) child abuse only constituted “violent felonies” under the residual clause of the ACCA. (CV Doc. 12 at 2). Because the Supreme Court found the residual clause to be unconstitutional in Johnson II, Petitioner maintains that he was incorrectly sentenced. (CV Doc. 12 at 2).

         After considering the evidence in the record and the relevant law, Judge Garza determined that Petitioner's convictions for aggravated assault with a deadly weapon and aggravated battery against a household member with a deadly weapon were correctly classified as “violent felonies” under the ACCA, and, therefore, Petitioner was correctly sentenced. (CV Doc. 13 at 6-13). Accordingly, Judge Garza recommended that Petitioner's Motion be dismissed with prejudice. (CV Doc. 13 at 14).

         Petitioner filed Objections in which he maintains that aggravated assault with a deadly weapon and aggravated battery against a household member with a deadly weapon can only be classified as “violent felonies” under the residual clause of the ACCA. The Court will address each objection in turn.

         A. Petitioner's Objection to the Aggravated Assault Finding Petitioner objected to Judge Garza's finding that aggravated assault with a deadly weapon is a violent felony under the first prong of the ACCA. Judge Garza determined that it “has as an element the use, attempted use, or threatened use of physical force against the person of another” (“physical force clause”). 18 U.S.C. § 924(e)(2)(B)(i). (CV Doc. 14 at 3). Petitioner also objects to Judge Garza's finding that New Mexico does not recognize the “insulting language” prong of the New Mexico assault statute. (CV Doc. 14 at 1).

         In the PFRD, Judge Garza explained that to determine whether a crime qualifies as a “violent felony” under the physical force clause of the ACCA, a court employs either the “categorical approach” or ...


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