United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH United States Magistrate Judge.
matter is before me on Petitioner's Emergency Motion to
Vacate and Correct Sentence Pursuant to 28 U.S.C. § 2255
(doc. 1). Having reviewed the initial and
supplemental briefing on Petitioner's Motion (docs.
3, 6, 9, 10, 12, 13, 14) and being fully advised, I
recommend Petitioner's Motion be denied as untimely.
21, 1998, following a jury trial, Petitioner was convicted of
Attempted Armed Bank Robbery in violation of 18 U.S.C. §
2113(a) and (d), as charged in Count I of the two-count first
superseding indictment. Cr. docs. 60, 94. Prior to
sentencing, the United States Probation Office prepared a
presentence report (PSR). The pertinent factual basis
underlying Petitioner's Attempted Armed Bank Robbery
conviction is as follows: on July 9, 1997, Petitioner's
co-defendant Joseph Gutierrez attempted to rob a credit union
in Santa Fe, New Mexico. PSR ¶ 9. Gutierrez approached a
bank teller with a gift-wrapped package and handed her a
demand note stating that the package contained a bomb, but
abandoned the attempt when the teller was unable to retrieve
any money. Id. It was later determined by FBI
investigators that Petitioner wrote the demand note and drove
the getaway vehicle involved in the crime. PSR ¶¶
11, 12, 15.
reflected in the PSR, the base offense level for
Petitioner's crime of Attempted Armed Bank Robbery was 25
and Petitioner's criminal history category was V. PSR
¶ 63. Therefore, the applicable sentencing range under
the guidelines would ordinarily have been 100-125 months.
Id. However, Petitioner was classified as a career
offender pursuant to U.S.S.G. § 4B1.1, which increased
the applicable mandatory sentencing range. PSR ¶¶
35, 64. Specifically, the PSR classified Petitioner as a
career offender on the basis that both the instant offense of
attempted armed bank robbery as well as three of
Petitioner's prior convictions constituted “crimes
of violence” under the definition found in U.S.S.G.
§ 4B1.2(a)(2),  thus triggering the sentencing
enhancement. PSR ¶¶ 35, 64. At the time of
Petitioner's sentencing, the guidelines defined
“crime of violence” as follows:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
U.S.S.G. § 4B1.2(a) (1997).
three prior convictions listed in the PSR as “crimes of
violence” underlying the application of the career
offender enhancement included: (1) a 1988 conviction for
Attempt to Commit Aggravated Assault with a Deadly Weapon;
(2) a 1991 conviction for False Imprisonment; and (3) a 1992
conviction for False Imprisonment, Aggravated Assault, and
Robbery. PSR ¶ 64. As the statutory maximum for the
instant offense of attempted armed bank robbery was 25 years,
Petitioner's base offense level was adjusted to 34 and
his criminal history category adjusted to VI pursuant to the
career offender provision. PSR ¶ 64; see also
U.S.S.G. § 4B1.1(b). Accordingly, the mandatory
applicable guideline sentencing range for his offense
increased to 262-327 months. PSR ¶ 64.
made several objections to the PSR, including that his 1988
conviction was a misdemeanor rather than a felony. See
cr. doc. 100 at 3. This objection was found to have
merit, and the PSR was accordingly revised to reflect that
Petitioner had only two prior felony convictions constituting
crimes of violence-namely, the 1991 and 1992 offenses
discussed above. Doc. 9 at 3; see also cr. doc.
101 at 5, cr. doc. 142 at 10. However, this
amendment to the PSR did not alter Petitioner's
classification as a career offender under the guidelines, as
the relevant provision requires only two prior “crime
of violence” convictions to trigger its application.
See U.S.S.G. § 4B1.1(a). The applicable
mandatory guideline sentencing range of 262-327 months of
imprisonment therefore remained the same notwithstanding the
revision to the PSR. See cr. doc. 142 at 12-13.
the sentencing phase of his case, Petitioner's counsel
sought a downward departure from this sentencing range on a
number of asserted grounds. However, the request for downward
departure was denied and Petitioner was sentenced to 262
months of imprisonment followed by a three-year period of
supervised release. See cr. docs. 102, 142 at 10,
Motion argues that the offenses of false imprisonment and
robbery under New Mexico law are no longer crimes of violence
in light of United States v. Johnson, 135 S.Ct. 2551
(2015). Doc. 1 at 14-15, 23-24. Consequently,
Petitioner argues that his sentence was unconstitutionally
enhanced under the career offender provision, and he is thus
entitled to resentencing as a matter of due process.
Id. at 1-14, 24-26. Petitioner contends that the
Johnson decision should be applied retroactively to
nullify the application of the career offender enhancement to
his sentence and to adjust the sentencing guideline range for
his Attempted Armed Bank Robbery offense to 100-125 months.
Id. at 1-2, 24-26. The United States argues that (1)
Johnson is inapposite to Petitioner's sentence,
which was enhanced under the guidelines rather than the
statute at issue in Johnson (see doc. 3 at
2-4); (2) a rule extending Johnson to guidelines
cases would not retroactively apply to Petitioner's
sentence (see Id. at 4-10); and (3) as a threshold
matter, the Court does not have jurisdiction to consider this
case because Petitioner's motion is time-barred under 28
U.S.C. § 2255(f), and no exception applies given that
the right recognized in Johnson is not the one
Petitioner asserts here as the basis of his motion. See
doc. 12 at 4-6.
parties agree that Petitioner was not convicted of at least
two predicate offenses which would qualify as “crimes
of violence” under either the “elements
clause” or the “enumerated offenses” clause
of U.S.S.G. § 4B1.2(a)(2). See generally doc.
9. In fact, any argument to the contrary is foreclosed
by the procedural history of Petitioner's criminal case.
Specifically, Petitioner appealed his sentence to the Tenth
Circuit Court of Appeals on several grounds, including that
his 1991 false imprisonment conviction did not qualify as a
“crime of violence” and that the career offender
enhancement was therefore improperly applied to his sentence.
See United States v. Zamora, 222 F.3d 756,
763 (10th Cir. 2000). In rejecting Petitioner's argument,
the Tenth Circuit held that the New Mexico crime of false
imprisonment qualified as a crime of violence solely under
the residual clause of U.S.S.G. §
4B.1.2(a). The court explained:
Although it is possible to theorize situations where physical
force would not be used during the commission of the crime,
this is not the inquiry. . . . [I]t is enough to show that
there is a substantial risk of physical injury. . . . Given
the substantial risk of violence associated with the crime of
false imprisonment, we have no trouble deciding that this
crime is a crime of violence for ...