United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
CHRISTINA ARMIJO Chief United States District Judge
MATTER is before the Court on the Magistrate Judge's
Proposed Findings and Recommended Disposition [CR Doc. 71; CV
Doc. 16] (“PF&RD”) issued June 2, 2017. On
reference by the undersigned, [CV Doc. 15], the Honorable
Stephan M. Vidmar, United States Magistrate Judge,
recommended denying Defendant Donovan Muskett's 28 U.S.C.
§ 2255 Motion to Vacate Sentence [CR Doc. 56; CV Doc.
2]. Muskett objected to the PF&RD on June 16, 2017. [CR
Doc. 72; CV Doc. 17]. The government neither objected to the
PF&RD nor responded to Muskett's objections. On de
novo review of the portions of the PF&RD to which Muskett
objects, the Court will overrule the objections, adopt the
PF&RD, deny Muskett's Motion, and dismiss case number
16-cv-0596 MCA/SMV with prejudice.
November 6, 2013, Muskett pleaded guilty to Count 3 of an
indictment,  which charged him with: (1) Assault with a
Dangerous Weapon, in violation of 18 U.S.C. §§
1153, 113(a)(3); (2) Aggravated Burglary, in violation of 18
U.S.C. § 1153 and NMSA 1978, § 30-16-4(A); (3)
Using, Carrying, Possessing, and Brandishing a Firearm During
and in Relation to and in Furtherance of a Crime of Violence,
in violation of 18 U.S.C. § 924(c); and (4) Negligent
Child Abuse, in violation of 18 U.S.C. §§ 1153, 13
and NMSA 1978, § 30-6-1(D)(1). Presentence Report
(“PSR”) at 3. The U.S. Sentencing Guidelines
Manual (“Guidelines”) imposes a minimum term of
imprisonment of 84 months for violation of § 924(c). PSR
at 7; Guidelines § 2K2.4.
March 11, 2014, the Honorable Alan B. Johnson, United States
District Judge visiting from the District of Wyoming,
sentenced Muskett to 84 months' imprisonment. [CR Doc.
54] at 2. As part of his plea agreement, Muskett waived his
right to appeal his conviction and sentence, so long as the
sentence did not exceed the statutory maximum. [CR Doc. 46]
at 7. The waiver extended to collateral attacks on his
conviction and sentence, with the exception of
ineffective-assistance-of-counsel claims pertaining to the
entry of the plea or the waiver. Id. Muskett did not
appeal his sentence. The instant case is his first motion
under § 2255.
reference by the undersigned, Judge Vidmar found that
Muskett's claim was not barred by procedural default.
Judge Vidmar further found that the predicate offense of
assault with a dangerous weapon qualified as a crime of
violence under the force clause of § 924(c)(3). Because
he found that Muskett's predicate offense qualified as a
crime of violence irrespective of the residual clause of
§ 924(c)(3), Judge Vidmar found that his conviction
under § 924(c) was not improper. He recommended that
Muskett's motion be denied. [Doc. 16].
Motions under § 2255 and Johnson II
to 28 U.S.C. § 2255(a), a “prisoner in
custody” pursuant to a federal conviction may
“move the court . . . to vacate, set aside or correct
the sentence” if it “was imposed in violation of
the Constitution or laws of the United States.”
Johnson v. United States (“Johnson
II”), 135 S.Ct. 2551, 2557 (2015), the Supreme
Court held that the so-called “residual clause”
of the definition of “violent felony” in the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B),  was unconstitutionally vague. The ACCA
defined “violent felony” as follows:
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
Id. (emphasis added). The closing words of this
definition, italicized above, have come to be known as the
“residual clause.” The Court explained that the
residual clause left “grave uncertainty” about
“deciding what kind of conduct the ‘ordinary
case' of a crime involves.” Johnson II,
135 S.Ct. at 2557. That is, the residual clause
“denie[d] fair notice to defendants and invite[d]
arbitrary enforcement by judges” because it
“tie[d] the judicial assessment of risk to a judicially
imagined ‘ordinary case' of a crime, not to
real-world facts or statutory elements.” Id.
Second, the ACCA's residual clause left
“uncertainty about how much risk it takes for a crime
to qualify as a violent felony.” Id. at 2558.
By combining these two indeterminate inquiries, the Court
held, “the residual clause produces more
unpredictability and arbitrariness than the Due Process
Clause tolerates.” Id. On that ground it held
the residual clause void for vagueness. Id.
thereafter, the Court determined that the ruling in
Johnson II was substantive (as opposed to
procedural) and, therefore, had “retroactive effect in
cases on collateral review.” Welch v. United
States, 136 S.Ct. 1257, 1268 (2016). Accordingly,
Welch opened the door for individuals sentenced
under the residual clause of the ACCA's violent-felony
definition to move to vacate their sentences as
unconstitutional under § 2255.
however, was not sentenced under § 924(e), nor did he
claim he was. He was convicted-and subject to a minimum term
of imprisonment-under § 924(c). Conviction
under that provision results where “any person who,
during and in relation to any crime of violence . . . for
which the person may be prosecuted in a court of the United
States, uses or carries a firearm, or who, in furtherance of
any such crime, possesses a firearm.” §
924(c)(1)(A). Like the definition of “violent
felony” in § 924(e)(2)(B), the definition of
“crime of violence” in § 924(c)(3) contains
a residual clause, italicized below:
[T]he term “crime of violence” means an offense
that is a felony and-
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
§ 924(c)(3). The Supreme Court has not ruled on whether
Johnson II applies to invalidate the residual clause
of § 924(c). The issue has divided the circuit courts.
See Lloyd v. United States, 2016 WL 5387665, at *3
(D.N.M. Aug. 31, 2016) (collecting cases). It is presently on
appeal before the Tenth Circuit, United States v.
Hopper, No. 15-2190.
Judge Vidmar found that Muskett's conviction was not
improper and recommended that his motion be denied.
conviction under § 924(c) was based on two predicate
offenses: New Mexico aggravated burglary, NMSA 1978,
§ 30-16-4, and federal assault with a dangerous weapon,
18 U.S.C. § 113(a)(3). His conviction was based on a
determination that one or both of those offenses qualified as
a “crime of violence” under § 924(c)(3).
argued that the residual clause of § 924(c) mirrored the
residual clause of § 924(e)(2)(B). See [Doc. 2]
at 3-6. He contended the Supreme Court's holding in
Johnson II (i.e., that the ACCA's residual
clause was unconstitutionally vague) applied equally to the
residual clause in § 924(c). Id. He next argued
that the predicate offenses on which his § 924(c)
conviction relied could have qualified as crimes of violence
only under that provision's residual clause.
Id. at 6-10. Therefore, he concluded, because the
residual clause was unconstitutional in light of Johnson
II, and there was no other basis on which his predicate
offenses could qualify as crimes of violence, his §
924(c) conviction should be vacated. Id. at 12. He
also argued that his waiver of the right to collaterally
attack his conviction and sentence should not bar relief.
Id. at 10-11.
United States argued that Muskett's claim was
procedurally barred because he did not raise the issue on
direct appeal and could not demonstrate either good cause or
actual innocence. [Doc. 7] at 4-6. It further argued that,
even if Muskett's claim were not procedurally barred, his
conviction under § 924(c) stands even in the wake of
Johnson II. The government contended that
Johnson II did not invalidate the residual clause of
§ 924(c). Id. at 7-11. And, even if it did,
Muskett's predicate offense of assault with a dangerous
weapon would still qualify as a crime of violence under the
force clause. Id. at 11-16. Finally, the
government contended that Muskett waived his right to
collaterally attack his conviction and requested that the
Court enforce the waiver. Id. at 16-21.
Vidmar found that Muskett's claim was not barred by
procedural default. [Doc. 16] at 6-8. Proceeding to the
merits, he found that his conviction under § 924(c) was
not improper because the predicate offense of assault with a
dangerous weapon qualified as a crime of violence under the
force clause of § 924(c)(3), irrespective of that
provision's residual clause. Id. at 8-18.
Because he recommended that Muskett's motion be denied on
that ground, Judge Vidmar ...