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Zamora v. United States

United States District Court, D. New Mexico

June 29, 2017

RAUL ZAMORA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY B. WORMUTH United States Magistrate Judge.

         This matter is before me on Petitioner's Emergency Motion to Vacate and Correct Sentence Pursuant to 28 U.S.C. § 2255 (doc. 1).[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.

         I. Background

         On July 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.[2] 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.

         As 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), [3] thus triggering the sentencing enhancement.[4] 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 another.

U.S.S.G. § 4B1.2(a) (1997).

         The 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.

         Petitioner 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.

         During 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, 13.

         Petitioner's 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.[5] 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.[6]

         II. Analysis

         A. Preliminary Matters

         The 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).[7] 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 ...

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