United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR United States Magistrate Judge.
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.
November 6, 2013, Muskett pleaded guilty to Count 3 of an
indictment,  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.
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.
Motions under § 2255 and Johnson II
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.”
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),  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
Id. (emphasis added). The closing words of this
definition, italicized above, have come to be known as 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.
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.
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
(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.
Muskett's § 2255 Motion
conviction under § 924(c) was based on two predicate
offenses: 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 ...