United States District Court, D. New Mexico
ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION OF THE MAGISTRATE JUDGE
WILLIAM P. JOHNSON UNITED STATES DISTRICT JUDGE
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. [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.
Background and Procedural History
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].
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).
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. 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].
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
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
(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.
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 ...