United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court upon Petitioner Paul Reyes
Sedillo's Amended Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255
(“Motion”), (CV Doc. 4), filed June 21, 2016; and
Respondent United States' Response in Opposition to
Defendant's Motion to Vacate, Set Aside, or Correct
Sentence (“Response”), (CV Doc. 11), filed
November 23, 2016. Petitioner has not filed a reply to the
Motion, and the time for doing so has passed. Also before the
Court is Petitioner's Motion to Grant Leave
(“Motion to Appoint Counsel”), (CV Doc. 2), filed
June 13, 2016, and Respondent United States'
Unopposed Motion to Reinstitute § 2255 Proceedings and
Set Response Deadline (“Motion to Reinstitute
Proceedings), (CV Doc. 10), filed November 2, 2016
States District Judge William P. Johnson referred this case
to Magistrate Judge Carmen E. Garza to perform legal analysis
and recommend an ultimate disposition. (CV Doc. 3). After
considering the parties' filings, the record of the case,
and relevant law, the Court RECOMMENDS that Petitioner's
Motion to Appoint Counsel (CV Doc. 2) and Respondent's
Motion to Reinstitute Proceedings (CV Doc. 10) be DENIED AS
MOOT, that Petitioner's Motion (CV Doc. 4) be DENIED, and
that this case be DISMISSED WITH PREJUDICE.
January 21, 2011, after a jury trial, Petitioner was found
guilty of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
(CR Doc. 106). Petitioner's presentence report
(“PSR”) provided that Petitioner was an armed
career criminal under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1), because he
had at least three prior violent felony convictions: two for
aggravated assault with a deadly weapon, and one for
aggravated battery. (CV Doc. 9-1 at 6). On October 27, 2011,
Petitioner was sentenced to 262 months imprisonment. (CR Doc.
argues that he is no longer an armed career criminal under
the ACCA due to the United States Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015). (CV Doc. 4 at 4). Specifically, Petitioner contends
that his convictions for aggravated assault with a deadly
weapon are not violent felonies under the ACCA, and that,
therefore, he should be resentenced without an ACCA-based
enhancement. Id. at 4-9.
August 18, 2016, Respondent filed a motion to stay this case
until the Tenth Circuit Court of Appeals issued a decision in
United States v. Maldonado-Palma, 839 F.3d 1244
(10th Cir. 2016). (CV Doc. 7). The issue before the Tenth
Circuit in Maldonado-Palma was whether New
Mexico's aggravated assault with a deadly weapon statute
satisfies the Sentencing Guidelines' force clause, which
has similar language as the ACCA's force clause. The
Court granted Respondent's motion to stay. (CV Doc. 8).
October 25, 2016, the Tenth Circuit issued its decision in
Maldonado-Palma, holding that New Mexico's
aggravated assault with a deadly weapon statute satisfies the
Sentencing Guidelines' force clause without the use of
the unconstitutional residual clause. 839 F.3d at 1249-50.
Subsequently, Respondent filed its Response to
Petitioner's Motion, in which it contends that the Tenth
Circuit's decision in Maldonado-Palma is
dispositive of Petitioner's argument. (CV Doc. 11 at 6).
Respondent argues that, even though the
Maldonado-Palma decision concerns the definition of
a “crime of violence” in the Sentencing
Guidelines, the holding applies equally to the ACCA because
“the operative language at issue is the same as that
contained in the ACCA.” Id.
December 7, 2016, Petitioner filed a motion to stay this case
pending the disposition of the petition for writ of
certiorari filed with the United States Supreme Court by
counsel in the Maldonado-Palma case. (CV Doc. 12).
The Court granted the stay. (CV Doc. 13). On May 10, 2017,
the Court sua sponte entered an order lifting the
stay, noting that the United States Supreme Court had denied
the petition for writ of certiorari in United States v.
Maldonado-Palma, 137 S.Ct. 1214 (2017). (CV Doc. 15).
The Court allowed Petitioner fourteen days, until May 24,
2017, to file a reply to his Motion. Id. No reply
has been filed and the time for doing so has passed.
Standard of Review Under 28 U.S.C. §
2255 provides that a federal prisoner may challenge his
sentence if: (1) it was imposed in violation of the United
States Constitution or federal law; (2) the sentencing court
had no jurisdiction to impose the sentence; (3) the sentence
exceeded the maximum authorized sentence; or (4) the sentence
is otherwise subject to collateral review. 28 U.S.C. §
2255(a). If the court finds that a sentence infringed upon
the prisoner's constitutional rights and is subject to
collateral review, the court must vacate the sentence and
discharge, resentence, or correct the sentence as the court
believes appropriate. § 2255(b).
the ACCA, an individual who violates § 922(g)
(e.g., being a felon in possession of a firearm or
ammunition), and who has “three previous convictions .
. . for a violent felony or a serious drug offense, ”
will receive a mandatory, minimum 15-year sentence. 18 U.S.C.
§ 924(e). The ACCA defines the term “violent
[A]ny crime punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency involving the
use or carrying of a firearm, knife, or destructive device
that would be punishable by ...