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United States v. Muskett

United States District Court, D. New Mexico

July 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DONOVAN MUSKETT, Defendant.

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          M. CHRISTINA ARMIJO Chief United States District Judge

         THIS 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.

         I. Background

         On November 6, 2013, Muskett pleaded guilty to Count 3 of an indictment, [1] 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.

         On 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.

         On 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].[2]

         II. Motions under § 2255 and Johnson II

         Pursuant 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.”

         In 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), [3] 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 to another.

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.

         Soon 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.

         Muskett, 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 another, or
(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.

         III. Judge Vidmar found that Muskett's conviction was not improper and recommended that his motion be denied.

         Muskett's conviction under § 924(c) was based on two predicate offenses:[4] 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).

         Muskett 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.

         The 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.[5] 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.

         Judge 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 ...


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