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United States v. Barela

United States District Court, D. New Mexico

July 25, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
ANTHONY BARELA, Defendant-Movant.

          ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION OF THE MAGISTRATE JUDGE

          WILLIAM P. JOHNSON UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court upon the Proposed Findings and Recommended Disposition (“PFRD”) entered by Magistrate Judge Lourdes A. Martinez on April 13, 2017. In accordance with 28 U.S.C. § 636(b)(1)(B), Judge Martinez recommended denying Defendant's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255, [Doc. No. 11], to which Defendant timely objected on June 8, 2017.[1] [Doc. No. 15]. Plaintiff did not file a response to Defendant's objections. Having conducted a de novo review of the specific portions of the PFRD to which Defendant objects, the Court determines that it will overrule Defendant's objections, adopt the PFRD, and dismiss cause No. 16-cv-00588-WJ-KRS with prejudice.

         Factual Background and Procedural History

         On September 24, 2014, Defendant pled guilty to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g). [Cr. Doc. No. 35]. Although such a charge generally carries a maximum sentence of ten years, 18 U.S.C. § 924(b), Defendant had previously been convicted of three or more violent felonies; namely, two convictions for armed bank robbery in the United States District Court for the District of New Mexico, and three convictions for armed robbery in the Second Judicial District Court for the State of New Mexico. These prior convictions made Defendant subject to the Armed Career Criminal Act (“ACCA”) and its accompanying fifteen year mandatory minimum sentence. 18 U.S.C. § 924(e)(1). Consequently, Defendant agreed to an enhanced sentence totaling fifteen years, and he was so sentenced on May 5, 2015. [Cr. Doc. No. 46].

         Less than sixty days later, on June 26, 2015, the United States Supreme Court issued its decision in Johnson v. U.S., 135 S.Ct. 2551 (2015), wherein it struck down the residual clause of the ACCA as unconstitutional. This decision was the catalyst to Defendant's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255, filed narrowly within the one year limitations period on June 15, 2016. [Doc. No. 1]. See 28 U.S.C. § 2255(f)(3) (explaining that motions under 28 U.S.C. § 2255 must be filed within one year of the date that the right asserted therein was initially recognized by the Supreme Court).

         In his motion, Defendant argues that in light of Johnson, his New Mexico armed robbery convictions do not qualify as “violent felonies” under 18 U.S.C. Section 924(e)(2)(B), and he moves the Court to correct his sentence accordingly.[2] On April 13, 2017, Magistrate Judge Martinez recommended that the Court deny Defendant's motion, concluding that armed robbery in New Mexico, as enumerated in N.M. Stat. Ann. § 30-16-2, satisfies the requirements of § 924(e)(2)(B)(i). [Doc. No. 11]. Defendant challenges this determination, arguing, in sum, that the Magistrate Judge's findings are based upon a misapplication of the law. [Doc. No. 15].

         Standard of Review

         Any portion of a magistrate judge's disposition to which a party objects must be determined, de novo, by the referring district judge. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). Here, Defendant objects to Magistrate Judge Martinez's conclusion that an armed robbery conviction under New Mexico's robbery statute constitutes a “violent felony” for the purposes of the ACCA. This particular issue is shrouded in controversy as there is no concurrence amongst our District Court judges and the Tenth Circuit has yet to consider New Mexico's robbery statute post-Johnson. See, e.g., United States v. King, No. CV 16-501 MV/KK, 2017 WL 1506766 (D.N.M. Mar. 31, 2017) (holding that armed robbery in New Mexico is not a “violent felony” under the ACCA); United States v. Garcia, No. CV 16-0240 JB/LAM, 2017 WL 2271421 (D.N.M. Jan. 31, 2017) (concluding that robbery constitutes a “violent felony” as contemplated by the ACCA).

         Discussion

         Pursuant to the ACCA, one who violates 18 U.S.C. § 922(g) and has three prior convictions for violent felonies shall be imprisoned for a term no less than fifteen years. 18 U.S.C. § 924 (e)(1). The Act defines the term “violent felony, ” in pertinent part, as “any crime punishable by imprisonment for a term exceeding one year” that either:

“(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.”

U.S.C. § 924 (e)(2)(B). This two-part definition actually comprises three distinct clauses: (1) the “force clause” which accounts for the entirety of § 924 (e)(2)(B)(i); (2) the “enumerated offenses clause” which specifically identifies burglary, arson, extortion, and the use of explosives as violent felonies, § 924 (e)(2)(B)(i)(ii); and (3) the now defunct “residual clause” which, as its designation implies, provides the catchall language of “or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id.

         In the aftermath of Johnson, 135 S.Ct. 2551, see supra p. 2, crimes not named in the enumerated offenses clause-such as robbery and armed robbery-must fall under the force clause to qualify as violent felonies for ACCA purposes. See Id. at 2563 (holding the residual clause of the ACCA unconstitutional while affirming the application of the Act to the remaining clauses). Accordingly, to determine whether Defendant's armed robbery conviction qualifies as a violent felony, the Court must inquire as to whether the offense ...


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