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United States v. Sanchez

United States District Court, D. New Mexico

July 5, 2017



          GREGORY B. WORMUTH United States Magistrate Judge.

         This matter is before the Court on Defendant's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255. Doc. 1.[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 the Motion.

         I. Background

         On 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.

         Prior 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 year that:

(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.[2]

         Defendant's 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.

         Due to 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).[3] 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.

         II. Legal Standard

         Whether 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).

         The Supreme Court explained in Johnson v. United States, 559 U.S. 133, 140 (2010)[4]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.

         If, 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.”[5] Id. Any three such felonies may validly underlie the application of the ACCA enhancement. 18 U.S.C. § 924(e)(2)(B)(i).

         III. Analysis

         Defendant's § 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.

         As a 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.

         i. Robbery

         Defendant 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 violence.
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, ...

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