United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
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). 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
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.
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).
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.
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. FED. R. CIV. P. 72(b).
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
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).
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).
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.
Petitioner's Objection to the Aggravated Assault
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).
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 the “modified
categorical approach.” United States v. Ramon
Silva,608 F.3d 663, 665 (10th Cir. 2010). The
categorical approach is utilized when a statute is
indivisible; in other words, when a statute “provides
only a single set of elements to define a single
crime.” United States v. Rodriguez, 768 F.3d
1270, 1273 (10th Cir. 2014). Under the categorical approach,
the Court “may ‘look only to the statutory
definitions' - i.e., the elements - of a defendant's