United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH United States Magistrate Judge.
matter is before the Court on Defendant's Motion to
Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §
2255. Doc. 1. Defendant seeks to have his conviction and
sentence set aside pursuant to the Supreme Court's
decision in Johnson v. United States, which struck
down the residual clause of the Armed Career Criminal Act
(ACCA) as unconstitutionally vague under the Fifth Amendment
Due Process Clause. 135 S.Ct. 2551 (2015). See generally
doc. 1. Having reviewed the initial and supplemental
briefing on Defendant's motion (docs. 10, 14, 17,
19) and the record before the Court, I recommend denying
December 17, 2013, Defendant pled guilty to the offenses of
possession of heroin with intent to distribute in violation
of 21 U.S.C. § § 841(a)(1) and (b)(1)(C) and being
a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2).
Cr. docs. 30, 31, 32. Defendant's plea
agreement, entered pursuant to Rule 11(c)(1)(C) of the
Federal Rules of Criminal Procedure, included a binding
stipulation to a term of 180 months (fifteen years) of
imprisonment and three years of supervised release. Cr.
doc. 32 at 1, 4.
to Defendant's sentencing, the United States Probation
Office prepared a presentence report (PSR) which concluded
that Defendant had at least three prior “violent
felony” convictions. PSR ¶ 57. Consequently, he
qualified as an armed career criminal under the ACCA.
See PSR ¶¶ 57, 71. The ACCA provides that
a defendant convicted of being a felon in possession of a
firearm faces a minimum term of fifteen years'
imprisonment where he has three or more previous convictions
for a “violent felony.” 18 U.S.C. §
924(e)(2)(B); see also Logan v. United States, 552
U.S. 23, 27 (2007). At the time of Defendant's
sentencing, the ACCA defined “violent felony” as
any crime punishable by imprisonment for a term exceeding one
(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 to another[.]
18 U.S.C. § 924(e)(2)(B) (emphasis added). The
italicized portion is known as “the residual
clause” of the ACCA, which the Supreme Court struck
down as unconstitutional under the void-for-vagueness
doctrine in its Johnson decision. See 135
S.Ct. at 2557-61.
past convictions that were classified in the PSR as
“violent felonies” justifying his designation as
an armed career criminal under 18 U.S.C. § 924(e)
include: (1) Aggravated Assault with a Deadly Weapon; (2)
Robbery; and (3) Aggravated Battery with a Deadly Weapon. PSR
¶ 57. Defendant knew that he would be classified as an
armed career criminal prior to entering into the plea
agreement which stipulated a term of imprisonment of 180
months. See cr. doc. 50 at 4-5. At the time of his
sentencing, Defendant did not dispute any of the PSR
findings. See id. at 2.
Defendant's classification as an armed career criminal
and Defendant's use of a firearm in connection with a
controlled substance offense, the PSR assigned a base offense
level of 34. PSR ¶ 57; U.S.S.G. §
4B1.4(b)(3)(A). After the application of a reduction for
acceptance of responsibility, Defendant's base offense
level was 31. PSR ¶ 58. With a criminal history category
of VI and an offense level of 31, Defendant's guideline
range was 188 to 235 months. PSR ¶ 115. However, the
Court imposed the sentence to which the parties stipulated in
the plea agreement of imprisonment for 180 months followed by
three years of supervised release. Cr. doc. 32 at 4;
cr. doc. 50 at 4, 6- 7.
the underlying criminal convictions of Defendant's ACCA
enhancement qualify as “violent felonies” depends
on whether they satisfy the definition of “violent
felony” under the remaining clauses of the ACCA, now
that the residual clause has been struck down as
unconstitutional. See 18 U.S.C. § 924(e)(2)(B).
In making its determination, the Court should consider the
offense “generically, that is to say, . . . in terms of
how the law defines the offense and not in terms of how an
individual offender might have committed it on a particular
occasion.” Begay v. United States, 553 U.S.
137, 141 (2008). This “categorical approach”
requires the Court to “consult only the fact of
conviction and the statutory definition of the prior offense,
and  not generally consider the particular facts disclosed
by the record of conviction.” United States v.
Ramon Silva, 608 F.3d 663, 669 (10th Cir. 2010)
(internal quotations omitted); see also Mathis v. United
States, 136 S.Ct. 2243, 2248 (2016).
Supreme Court explained in Johnson v. United States,
559 U.S. 133, 140 (2010)that the term “physical
force” as used in the ACCA “means
violent force-that is, force capable of causing
physical pain or injury to another person.”
Nonetheless, the force required to satisfy that element need
not be sufficient to cause serious injury-it “might
consist . . . of only that degree of force necessary to
inflict pain-a slap in the face, for example.”
Id. at 1272. Therefore, in evaluating whether
Defendant's past convictions under New Mexico law
constitute violent felonies under the ACCA, the Court must
first consider whether each state statute that he violated
necessarily proscribes conduct that “has as an element
the use, attempted use, or threatened use of” violent
force against the person of another. If so, it is
categorically a “violent felony” under the force
clause of the ACCA.
however, the statutory definition of any of Defendant's
prior offenses is broader than the ACCA's
definition of “violent felony” and the prior
offense is “divisible, ” the Court will then
apply what is known as a “modified-categorical
approach.” Ramon Silva, 608 F.3d at 669;
see also Mathis, 136 S.Ct. at 2249, 2256. Under this
approach, the Court should consult “charging documents
and documents of conviction to determine whether the
defendant in a particular case was convicted of an offense
that qualifies as a violent felony.” Id. Any
three such felonies may validly underlie the application of
the ACCA enhancement. 18 U.S.C. § 924(e)(2)(B)(i).
§ 2255 motion argues that his convictions for robbery,
aggravated assault with a deadly weapon, and aggravated
battery with a deadly weapon do not qualify as violent
felonies under the ACCA without reliance on the
unconstitutional residual clause struck down in Johnson
II. See doc. 1 at 3-21. Defendant asserts that
none of these offenses satisfies the “elements
clause” of the ACCA's “violent felony”
definition, as the offenses do not require the intentional
use of violent physical force against the person of another.
See Id. Accordingly, Defendant asserts that he is
entitled to resentencing under Johnson II.
Id. at 1, 22.
preliminary matter, Defendant's past convictions clearly
do not qualify under the clause enumerating the specific
felonies of “burglary, arson, or extortion, ” or
those “involv[ing] use of explosives.”
Id. at (e)(2)(B)(ii); see also PSR ¶
57. Therefore, the only question before the Court is whether
at least three of Defendant's past convictions qualify as
violent felonies under the “elements clause”-that
is, whether each conviction “has as an element the use,
attempted use, or threatened use of physical force against
the person of another[.]” Id. at (e)(2)(B)(i).
Each of Defendant's predicate criminal convictions for
his armed career criminal designation will be addressed in
turn to determine whether the ACCA enhancement was properly
applied in light of Johnson II.
acknowledges that he was convicted of robbery pursuant to
N.M.S.A. § 30-16-2. Doc. 1 at 4-12. That
statute sets forth the elements of the crime as follows:
Robbery consists of the theft of anything of value from the
person of another or from the immediate control of another,
by use or threatened use of force or
Whoever commits robbery is guilty of a third degree felony.
Whoever commits robbery while armed with a deadly weapon is,
for the first offense, guilty of a second degree felony and,
for second and subsequent offenses, ...