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United States v. Muskett

United States District Court, D. New Mexico

June 2, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DONOVAN MUSKETT, Defendant.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          STEPHAN M. VIDMAR United States Magistrate Judge.

         THIS MATTER is before me on Defendant Donovan Muskett's 28 U.S.C. § 2255 Motion to Vacate Sentence, filed June 16, 2016. [CR Doc. 56; CV Doc. 2]. The United States responded on August 15, 2016. [CR Doc. 63; CV Doc. 7]. Muskett replied on October 3, 2016. [CR Doc. 70; CV Doc. 14]. The Honorable M. Christina Armijo, Chief United States District Judge, referred this matter to me for analysis and a recommended disposition. [CV Doc. 15]. Having considered the briefing, relevant portions of the underlying criminal record, and relevant authorities, and being otherwise fully advised in the premises, I find that Muskett's conviction under 18 U.S.C. § 924(c) was not improper, irrespective of whether that provision's residual clause is unconstitutional. I recommend that his motion be denied.

         I. Background

         On November 6, 2013, Muskett pleaded guilty to Count 3 of an indictment, [1] which charged him with: (1) Assault with a Dangerous Weapon, in violation of 18 U.S.C. §§ 1153, 113(a)(3); (2) Aggravated Burglary, in violation of 18 U.S.C. § 1153 and NMSA 1978, § 30-16-4(A); (3) Using, Carrying, Possessing, and Brandishing a Firearm During and in Relation to and in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c); and (4) Negligent Child Abuse, in violation of 18 U.S.C. §§ 1153, 13 and 1978 NMSA, § 30-6-1(D)(1). Presentence Report (“PSR”) at 3. The U.S. Sentencing Guidelines Manual (“Guidelines”) imposes a minimum term of imprisonment of 84 months for violation of § 924(c). PSR at 7; Guidelines § 2K2.4.

         On March 11, 2014, the Honorable Alan B. Johnson, United States District Judge visiting from the District of Wyoming, sentenced Muskett to 84 months' imprisonment. [CR Doc. 54] at 2. As part of his plea agreement, Muskett waived his right to appeal his conviction and sentence, so long as the sentence did not exceed the statutory maximum. [CR Doc. 46] at 7. The waiver extended to collateral attacks on his conviction and sentence, with the exception of ineffective-assistance-of-counsel claims pertaining to the entry of the plea or the waiver. Id. Muskett did not appeal his sentence. The instant case is his first motion under § 2255.

         II. Motions under § 2255 and Johnson II

         Pursuant to 28 U.S.C. § 2255(a), a “prisoner in custody” pursuant to a federal conviction may “move the court . . . to vacate, set aside or correct the sentence” if it “was imposed in violation of the Constitution or laws of the United States.”

         In Johnson v. United States (“Johnson II”), 135 S.Ct. 2551, 2557 (2015), the Supreme Court held that the so-called “residual clause” of the definition of “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), [2] was unconstitutionally vague. The ACCA defined “violent felony” as follows:

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.

Id. (emphasis added). The closing words of this definition, italicized above, have come to be known as the “residual clause.”

         The Court explained that the residual clause left “grave uncertainty” about “deciding what kind of conduct the ‘ordinary case' of a crime involves.” Johnson II, 135 S.Ct. at 2557. That is, the residual clause “denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges” because it “tie[d] the judicial assessment of risk to a judicially imagined ‘ordinary case' of a crime, not to real-world facts or statutory elements.” Id. Second, the ACCA's residual clause left “uncertainty about how much risk it takes for a crime to qualify as a violent felony.” Id. at 2558. By combining these two indeterminate inquiries, the Court held, “the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id. On that ground it held the residual clause void for vagueness. Id.

         Soon thereafter, the Court determined that the ruling in Johnson II was substantive (as opposed to procedural) and, therefore, had “retroactive effect in cases on collateral review.” Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Accordingly, Welch opened the door for individuals sentenced under the residual clause of the ACCA's violent-felony definition to move to vacate their sentences as unconstitutional under § 2255.

         Muskett, however, was not sentenced under § 924(e), nor does he claim he was. He was convicted-and subject to a minimum term of imprisonment-under § 924(c). Conviction under that provision results where “any person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” § 924(c)(1)(A). Like the definition of “violent felony” in § 924(e)(2)(B), the definition of “crime of violence” in § 924(c)(3) contains a residual clause, italicized below:

[T]he term “crime of violence” means an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that 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.

§ 924(c)(3). The Supreme Court has not ruled on whether Johnson II applies to invalidate the residual clause of § 924(c). The issue has divided the circuit courts. See Lloyd v. United States, 2016 WL 5387665, at *3 (D.N.M. Aug. 31, 2016) (collecting cases). It is presently on appeal before the Tenth Circuit, United States v. Hopper, No. 15-2190.

         III. Muskett's § 2255 Motion

         Muskett's conviction under § 924(c) was based on two predicate offenses:[3] New Mexico aggravated burglary, NMSA 1978, § 30-16-4, and federal assault with a dangerous weapon, 18 U.S.C. § 113(a)(3). His conviction was based on a determination that one or both of ...


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