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United States v. Hammons

United States District Court, D. New Mexico

June 26, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
ROBERT L. HAMMONS, Defendant/Movant.



         Robert L. Hammons, presently incarcerated at FCI Springfield, seeks review of his sentence under 28 U.SC. § 2255 in light of the Supreme Court's decision in Johnson v. United States, 576 U.S. ___, 135 S.Ct 2551 (2015). In his motion to vacate [Doc. 114], Hammons contends that three previous convictions-two for first-degree robbery in Oregon, see Or. Rev. Stat. § 164.415, and one for aggravated assault against a household member, see N.M. Stat. Ann. 30-3-13-no longer qualify as violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), the basis for his 180-month sentence. The Government has filed a response in opposition [Doc. 128], and Hammons a reply [Doc. 131]. Hammons also submitted objections [Doc. 137] to earlier recommendations from this Court's predecessor [Doc. 136]. Acting under its inherent authority to reconsider previous rulings and an order of reference from United States District Court Judge James O. Browning, see 28 U.S.C. § 636(b), the Court has considered the parties' submissions and now recommends Hammons' motion be granted and he be resentenced.

         I. BACKGROUND

         A. Facts Underlying Conviction

         On June 13, 2007, a federal grand jury returned a two-count indictment charging Hammons with possessing a firearm as a felon, contrary to 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count I) and possessing a stolen firearm in violation of Sections 922(j) and 924(a)(2) (Count II). [Doc. 2]. The charging document listed three prior felonies as the basis for Count I, including first-degree robbery in Oregon, and false imprisonment and aggravated assault against a household member in New Mexico. [Doc. 2, pp. 1-2]. On October 30, 2008, Hammons pleaded guilty to Count I of the indictment and executed a formal plea agreement. [Doc. 33]. United States Magistrate Judge Robert Hayes Scott accepted the plea, and the matter was set for sentencing. [Doc. 34].

         The factual basis for Hammons' commission of the offense is set forth in the plea agreement. [Doc. 33, ¶9]. Hammons admitted that in February of 2007, he “knowingly possessed a Smith & Wesson .22 caliber pistol . . . and approximately seven (7) rounds of Federal brand .22 Long Rifle (LR) caliber cartridge ammunition.” [Doc. 33, ¶9(b)]. In exchange for pleading guilty, the Government promised not to charge additional crimes arising from the same conduct and to move to dismiss Count II of the indictment. [Doc. 33, ¶12(a)-(b)]. The Government did not recommend any specific sentence and advised Hammons that he “may be an armed career criminal which carries a minimum sentence of fifteen (15) years imprisonment.” [Doc. 33, ¶ 4(a); 6(a)].

         On April 21, 2009, the Government filed a “Notice of Intention to Seek Enhanced Sentence Pursuant to the Armed Career Criminal Provisions of 18 U.S.C. § 924(e) and U.S.S.G §4B1.4.” [Doc. 38]. As the basis, the Government identified five previous felonies for which Hammons had been convicted: (1) a September 30, 2000 conviction in New Mexico's Second Judicial District for false imprisonment; (2) an October 1, 2000 conviction for the same offense in the same court; (3) an August 13, 2000 conviction for aggravated assault against a household member with a deadly weapon in the Second Judicial District; (4) a December 18, 1981 conviction for robbery in the Umatilla County, Oregon Circuit Court; and (5) an October 30, 1978 conviction for the same offense in the Linn County, Oregon Circuit Court. [Doc. 38, pp. 1-2]. The United States Probation Office prepared a Presentence Report (“PSR”) in advance of sentencing.

         After sentencing was continued on several occasions, Hammons moved to withdraw his guilty plea. [Doc. 50]. He also sought appointment of a new attorney. [Doc. 75] The Government contested the motion, accusing Hammons of “gaming the system.” [Doc. 53]. The Government asserted that Hammons lacked a sufficient reason to back out of the agreement and could not prove his innocence as a justification for doing so. [Doc. 53, pp. 3-5]. After a hearing, Judge Browning issued an opinion granting Hammons' request for a new attorney, but denying without prejudice his motion to withdraw his guilty plea so that Hammons could discuss it with his new attorney. [Doc. 80]. Hammons later abandoned the motion to withdraw his plea.

         Hammons also lodged objections to the Government's pursuit of the ACCA enhancement. [Doc. 47]. Among other things, Hammons disagreed that his two convictions for false imprisonment qualified as violent felonies that would subject him to a 180-month minimum sentence. [Doc. 47, pp. 2');">p. 2-5]. The Government responded to the objection. [Doc. 57]. The Government maintained that even if those offenses did not satisfy the ACCA's “force” clause, they undoubtedly met the ACCA's “residual clause.”[Doc. 57, pp. 1-3]. In a supplemental paper, Hammons asked the Court to apply the Supreme Court's then recent decision, Johnson v. United States, 559 U.S. 133 (2010) (“Johnson 2010”), to disqualify his convictions for false imprisonment and aggravated assault against a household member as ACCA predicates. [Doc. 70]. Under Johnson 2010, Hammons asserted, these offenses, categorically, did not include the type of violent force necessary to warrant a sentencing enhancement. [Doc. 70, pp. 1-2]. The Government disagreed, insisting that aggravated assault with a deadly weapon easily satisfied Johnson 2010 and false imprisonment fell squarely within the ACCA's residual clause. [Doc. 71, 1-5].

         Judge Browning ultimately agreed with the Government. [Doc. 73]. In a memorandum opinion and order, he first noted that “Hammons does not dispute that two of his previous convictions - for the Oregon offenses of . . . robbery in the first degree [] and kidnapping in the third degree - qualify as predicate offenses for the purposes of the ACCA enhancement.” [Doc, 73, p. 31]. In terms of the other convictions, Judge Browning concluded that “New Mexico's crime of aggravated assault against a household member with a deadly weapon is a violent felony under the force clause” and “New Mexico's crime of false imprisonment is a violent felony under the residual clause of the ACCA.” [Doc. 73, p. 31]. Consequently, Hammons had three qualifying felonies under the ACCA, and Judge Browning overruled Hammons objections to the use of his past convictions for the 180-month enhancement. [Doc. 73, pp. 31-46].

         Following this decision, Hammons filed sentencing memoranda in which he presented mitigating arguments in favor of a lesser sentence and questioned the Probation Office's computations and sentencing recommendations in the PSR. [Doc. 90, pp. 1-14; Doc. 98, pp. 1-14]. Hammons also submitted a “second supplemental objection” to the proposed ACCA enhancement seeking “to preserve a constitutional challenge to [the residual] clause of [the] ACCA” [Doc. 91, p. 2');">p. 2]. Under what he called the Supreme Court's significant limitation on a reach of the residual clause, see Begay v. United States, 553 U.S. 137 (2008), Hammons argued that his convictions for false imprisonment are not “roughly similar” to the enumerated crimes listed in the ACCA; nor did they entail they type of “purposeful, violent, and aggressive conduct” the ACCA requires. [Doc. 91, p. 5-7 (citations omitted)]. As if to foreshadow 2015's change of law, Hammons also asserted that the ACCA's residual clause was unconstitutionally vague. [Doc. 91, pp. 7-13].

         The Government dismissed Hammons' contentions. It argued both that the guidelines' calculation in the PSR was correct and that the ACCA's residual clause was constitutional. [Docs 92 & 93]. The Government urged Judge Browning to adhere to his initial determination that Hammons' convictions constitute violent felonies and side with the then majority of the Supreme Court that had rejected the same vagueness challenge Hammons raised. [Docs. 92 & 93]. In a written order, Judge Browning agreed that the residual clause withstood constitutional scrutiny and found no basis to reconsider his prior decision. [Doc. 98, pp. 5, 21]. On February 12, 2012, Judge Browning sentenced Hammons to 180 months' incarceration, three years supervised released, and participation in a mental health and substance abuse program, among other terms. [Doc. 101]. Although the Court was unwilling to declare the residual clause unconstitutional, the Court nonetheless granted the Government's motion to dismiss the second count of the indictment and Hammons' request to be placed at FCI Springfield in Illinois in light of his significant health problems. [Docs. 101; 104].

         B. Procedural Facts

         On June 24, 2016, Hammons filed the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. [Doc. 114]. Judge Browning appointed Hammons counsel and subsequently referred the matter to this Court's predecessor, United States Magistrate Judge Lourdes Martinez, to recommend a disposition. [Doc. 112; 117]. Hammons asserted that his previous convictions for false imprisonment under New Mexico law are not valid predicates under the ACCA, especially after Johnson 2015's abolishment of the “residual clause.” He also urged the Court to disqualify his conviction for aggravated assault against a household member as irreconcilable with Johnson 2010's violent-force mandate. [Doc. 114, pp. 8-15].

         The Government submitted a response in opposition on November 28, 2016. [Doc. 128]. Although the Government agreed that false imprisonment could no longer support an ACCA enhancement after Johnson 2015, it maintained that aggravated assault against a household member remained a violent felony under the ACCA's force clause, especially in light of United States v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016)'s holding that aggravated assault in New Mexico is a “crime of violence” under the federal sentencing guidelines. [Doc. 128, pp. 4-5]. The Government also asserted that Hammons' Oregon convictions for first-degree robbery qualify as violent felonies, and notwithstanding Johnson 2015, Hammons remained “an armed career criminal.” [Doc. 128, pp. 2');">p. 2-3].

         In a separate filing, the Probation Office insisted Johnson 2015 does not change Hammons' sentence because regardless of the constitutionality of the residual clause, Hammons' convictions for robbery and assault against a household member constitute the three violent felonies the ACCA requires. [CV Doc. 14]. On January 27, 2017, Hammons' submitted a reply in support of his motion. [Doc. 131]. Aside from reiterating his previous arguments, Hammons asserted that his robbery convictions from Oregon do not pass Johnson 2010's violent-force test and therefore may not support an enhanced sentence. [Doc. 131, pp. 1-10].

         On April 25, 2017, Judge Martinez filed a report recommending that Hammons' motion be denied and his sentence be affirmed. [Doc. 136, p. 2');">p. 2]. Notwithstanding Johnson 2015 and the parties' agreement that false imprisonment under New Mexico law no longer is a violent felony, Judge Martinez determined Hammons' remaining three convictions met the ACCA's “force clause, ” and properly were used to impose a 15-year term of incarceration. [Doc. 126, pp. 6-11]. First-degree robbery under Oregon law, Judge Martinez explained, requires violent force-“the additional factor of actual or threatened violence . . . transforms the conduct from theft, which requires only the intent to deprive, into a substantially different crime, robbery.” [Doc. 136, p. 7 (citation omitted)]. Judge Martinez also concluded that the Tenth Circuit's holding in United States v. Silva, 608 F.3d 663 (10th Cir. 2010) that aggravated assault in New Mexico is a “crime of violence” disposed of Hammons' contentions as to aggravated assault against a household member. [Doc. 136 p. 9');">136 p. 9]. Hammons timely objected to the PFRD. [Doc. 137]. The Government did not respond.

         II. ...

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