United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH Magistrate Judge.
matter is before the Court on Petitioner's Motion to
Vacate and Correct Sentence Pursuant to 28 U.S.C. § 2255
(doc. 1). Having reviewed Petitioner's Motion
and the United States' response (doc.
7) and being fully advised, I recommend
Petitioner's Motion be denied.
was charged by a grand jury in a five-count indictment filed
on September 5, 2012. Cr. doc. 2. Although he
initially pled not guilty, on February 27, 2014 Petitioner
entered a changed plea of guilty to Count 5 of the
indictment-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)-pursuant to Rule 11(c)(1)(C) of the Federal Rules of
Criminal Procedure. Cr. docs. 9, 28, 29, 30, 31. The
plea agreement included a binding stipulation to a term of 84
months of imprisonment and a waiver of collateral attack
other than for claims of ineffective assistance of counsel.
Cr. doc. 30 at 4, 6-7. Following sentencing, the
other four counts of the indictment were dismissed upon
motion by the United States, in accordance with the terms of
the plea agreement. See cr. doc. 30 at 7; cr.
docs. 37, 38.
beginning of the February 27, 2014 change of plea proceeding,
Petitioner was placed under oath. Cr. doc. 31 at 1.
He stated that he had no illness or condition that impeded
his ability to understand the proceedings. Id.
Petitioner stated that he was not under the influence of
drugs or alcohol and that he understood the proceedings.
Id. The Court explained to Petitioner all of the
terms and conditions of the agreement, including the loss of
certain rights and the other consequences of entering into
the agreement. Id. At the conclusion of the
proceeding, the Court found that Petitioner fully understood
the nature of the charges, that he fully understood the terms
of his plea agreement and the consequences stemming
therefrom, and that his plea of guilty was freely,
voluntarily, and intelligently made. Id.
to sentencing, the United States Probation Office prepared a
presentence report (PSR) at the request of the parties.
See cr. doc. 33 at 2. As reflected in the PSR,
Petitioner's crime of Using, Carrying, Possessing and
Brandishing a Firearm During and in Relation to and in
Furtherance of a Crime of Violence automatically carried a
minimum seven-year (84-month) term of imprisonment pursuant
to 18 U.S.C. § 924(c)(1)(A)(ii). PSR ¶ 80; see
also U.S.S.G. § 2K2.4(b) (2013) (providing that the
applicable guideline sentence for a § 924(c) offense is
the minimum term of imprisonment required by statute). The
PSR explained that had Petitioner been convicted at trial of
all five counts of the indictment, rather than pleading
guilty to Count 5 in exchange for the dismissal of Counts
1-4, he would have faced a guideline sentencing range of
130-141 months. PSR ¶ 88. Specifically, his total
offense level for Counts 1-4 of the indictment would have
been 22 combined with a criminal history category of II,
resulting in an imprisonment range of 46-57 months, plus the
84 months of imprisonment for Count 5, which must be imposed
to run consecutively pursuant to 18 U.S.C. §
924(c)(1)(D)(ii). PSR ¶¶ 87, 88. Therefore, absent
the § 924(c) charge, Petitioner would have faced a
guideline range of 46-57 months, which would have been
further reduced to the range of 33-41 months had he pled
guilty to the remaining Counts 1-4 and received an adjustment
for acceptance of responsibility. See cr. doc. 33 at
2. Petitioner did not object to any of the findings in the
PSR. Cr. doc. 36.
pled guilty to violating the following statute:
[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime (including a crime of
violence or drug trafficking crime that provides for an
enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) 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, shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime- . . .
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years[.]
18 U.S.C. § 924(c)(1)(A).
same statute defines “crime of violence” as:
[A]n 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.
18 U.S.C. § 924(c)(3).
“crime of violence” underlying Petitioner's
§ 924(c) offense was Assault with a Dangerous Weapon in
violation of 18 U.S.C. § 1153 and § 113(a)(3), as
charged in Counts 1-3 of the indictment. Cr. doc. 2
at 2-3. In support of his plea of guilty to Count 5,
Petitioner specifically admitted to the following facts under
penalty of perjury:
On or about October 2, 2011, in Indian Country, in McKinley
County, in the District of New Mexico, I, Shannon D. Concho,
an Indian, knowingly used, carried, and brandished a firearm,
a Remington, model 870 Express, 12 gauge shotgun, serial
number AB164509A, during and in relation to, and possessed
and brandished said firearm in furtherance of, a crime of
violence for which I may be prosecuted in a court of the
United States, to wit: Assault with a Dangerous Weapon in
violation of 18 U.S.C. § 113. The use of this firearm
facilitated my commission of a crime because I pointed the
firearm at John Doe 1's head and pushed the muzzle of the
shotgun into the person of John Doe 2, without authorization,
with intent to commit a felony while armed with a deadly
Cr. doc. 30 at 3.
Motion argues that the federal offense of Assault with a
Dangerous Weapon under 18 U.S.C. § 113(a)(3) is no
longer a crime of violence in light of United
States v. Johnson, 135 S.Ct. 2551 (2015). Doc.
1 at 2, 6-8. Therefore, Petitioner argues that if
sentenced today, he would not qualify for a conviction
pursuant to § 924(c)(1)(A). Id. at 3.
Petitioner contends that the Johnson decision should
be applied retroactively to vacate his conviction of Count 5
of the indictment and to adjust the sentencing guideline
range for the remaining 4 counts to 33-41 months.
Id. at 9. Consequently, Petitioner argues that he is
entitled to resentencing as a matter of due process, as it
would be a miscarriage of justice to enforce the 84-month
prison sentence to which he agreed in light of the
significantly lower guideline range that would be otherwise
applicable. Id. at 8-9.
United States argues that: (1) Johnson does not
apply to Petitioner's sentence, and thus Petitioner's
motion is time-barred under 28 U.S.C. § 2255(f); (2)
Petitioner's waiver of the right to collateral attack in
his plea agreement should be enforced to dismiss his motion;
and (3) assuming arguendo that Johnson does
apply to render 18 U.S.C. § 924(c)(3)(B) (the
“‘substantial risk' clause”)
unconstitutional, the charge of assault with a dangerous
weapon underlying Petitioner's conviction remains a
“crime of violence” under § 924(c)(3)(A)
(the “elements clause”). Doc. 7 at 3-11.
United States first argues that Petitioner's motion is
time-barred. Doc. 7 at 3- 6. Under 28 U.S.C. §
2255, a prisoner in federal custody may collaterally attack
his sentence as unconstitutional or illegal by bringing a
motion in the court which imposed the sentence. 28 U.S.C.
§ 2255(a). ...