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United States v. Ybarra

United States District Court, D. New Mexico

July 25, 2017

MARTIN MICHAEL YBARRA, Defendant. No. CR 09-0900 MV


         THIS MATTER comes before the Court on the Chief Magistrate Judge's Proposed Findings and Recommended Disposition (“PF&RD”) (Doc. 10)[1], filed February 15, 2017, and on Defendant's Objections to that PF&RD (“Defendant's Objections”) (Doc. 11), filed on March 1, 2017. The Court has also considered the United States' Response to Defendant's Objections (Doc. 12), which was filed on March 8, 2017.

         In her PF&RD, the Chief Magistrate Judge recommended that Defendant Martin Michael Ybarra's (“Defendant's”) Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 be denied and that his claims be dismissed with prejudice. See Doc. 10. She reasoned that, following Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”), Defendant's prior convictions for federal bank robbery under 18 U.S.C. § 2113(a) remain “violent felonies” under the Armed Career Criminal Act's (“ACCA's”) force clause. See id. Defendant now asks this Court to reject the recommendation by the Chief Magistrate Judge and to hold, instead, that federal bank robbery does not satisfy the ACCA's force clause and, therefore, does not qualify as a “violent felony” under the Act. Doc. 11.

         When a party files timely-written objections to a magistrate judge's recommendation, the district court will conduct a de novo review and “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(C). De novo review requires the district judge to consider relevant evidence of record and not merely to review the magistrate judge's recommendation. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “[A] party's objections to the magistrate judge's [PF&RD] must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop., with Buildings, Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1060 (10th Cir. 1996).

         Here, the Court conducts a de novo review of the record and considers Defendant's objections to the PF&RD, of which there are three: 1) that “[f]ederal bank robbery does not necessarily require proof of violent physical force”; 2) that “[f]ederal bank robbery does not require proof that any use, attempted use, or threatened use of physical force was directed at the person of another”; and 3) that “[t]he cases relied upon by the Court are not persuasive.” See Doc. 11 at 3-9.

         First, noting that the phrase “physical force” in the ACCA's force clause has been defined as “violent force . . . capable of causing physical pain or injury, ” Defendant insists that a robbery statute that requires proof of de minimus or even no physical force cannot be considered a “violent felony” under the ACCA. Doc. 11 at 3 (quoting Johnson v. United States, 559 U.S. 133 (2010) (“Johnson I)). Of course, a defendant may be convicted under § 2113(a) if his taking is by force and violence or by intimidation, see § 2113(A), and Defendant concedes, as he must, that the Tenth Circuit has “defined intimidation in the context of § 2113(a) as an act by defendant ‘reasonably calculated to put another in fear, or conduct and words calculated to create the impression that any resistance or defiance by the individual would be met by force.” Id. at 6 (quoting United States v. Lajoie, 942 F.2d 699, 701 n.5 (10th Cir. 1991)). Nevertheless, Defendant maintains that the offense of federal bank robbery “does not necessarily require that the implied threat involve physical force.” Doc. 11 at 6 (emphasis added).

         Defendant relies upon United States v. Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008) for the proposition that “[o]ffenses that merely require the threat or causation of bodily harm have been held to lack an element of use of force.” Doc. 11 at 6. In Rodriguez-Enriquez, the Tenth Circuit held that a conviction for assault by drugging a victim was not a “crime of violence” under U.S.S.G. § 2L1.2's force clause, which, like the ACCA's force clause, includes offenses that have “as an element the use, attempted use or threatened use of physical force against the person of another.” Rodriguez-Enriquez, 518 F.3d at 1195 (quoting U.S.S.G. § 2L1.2, application note, cmt. N. 1(B)(iii)). Defendant emphasizes the court's conclusion that “drugging by surreptitious means does not involve the use of physical force.” Doc. 11 at 6 (quoting Rodriguez-Enriquez, 518 F.3d at 1195).

         Defendant likewise relies upon United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012), in which the Fourth Circuit determined that the California offense of willfully threatening to commit a crime which “will result in death or great bodily injury to another” was also not a “crime of violence” under U.S.S.G. § 2L1.2. See Doc. 11 at 6. There, the Fourth Circuit explained that “a crime may result in death or serious injury without involving use of physical force, ” observing that threatening to poison a person might contravene the state statute without involving the use or threatened use of physical force. Id. at 168-69.

         In short, Defendant refers the Court to Rodriguez-Enriquez and Torres-Miguel to invoke an unlikely scenario - whereby a hypothetical defendant could commit a federal bank robbery by threatening to poison or drug a bank teller - in support of his argument that bank robbery by intimidation does not necessarily require the threat to use physical force. Besides being more theoretical than realistic, [2] Defendant's argument fails for other reasons.

         Four years after its decision in Torres-Miguel, the Fourth Circuit, in United States v. McNeal, 818 F.3d 141, 156 (4th Cir. 2016), concluded that “Torres-Miguel [did] not alter [its] conclusion that § 2113(a) bank robbery is a crime of violence under the § 924(c)(3) force clause.” The Fourth Circuit reasoned that federal bank robbery by intimidation, unlike the California offense of threatening to commit a crime that would result in death or great bodily injury, “entails a threat to use violent physical force, and not merely a threat to cause bodily injury.” Id. at 157.

         Moreover, following the Tenth Circuit's decision in Rodriquez-Enriquez, the Supreme Court, in Johnson I, examined the phrase “physical force” as used in the ACCA's force clause. While the Court determined that “physical force” meant “violent force” or “force capable of causing physical pain or injury to another person, ” it also separately considered the meaning of each of the terms, “physical” and “force.” Id. at 134. It defined “physical” as a “force exerted by and through concrete bodies - distinguishing physical force from, for example, intellectual force or emotional force.” Id. at 138; United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017) (quoting Johnson I). It defined “force” in a number of ways, including “[p]ower, violence, compulsion, or constraint exerted upon a person.” Id. at 139. In the Court's view, these definitions, particularly the definition of “physical, ” suggest that while mere offensive touching will not suffice under the ACCA's definition of “physical force, ” the Supreme Court has not necessarily foreclosed the inclusion of offenses that involve the use of “physical force” through indirect means.

         Later, in United States v. Castleman, 134 S.Ct. 1405 (2014), the Supreme Court again examined the phrase “physical force, ” this time in the context of 18 U.S.C. § 921(a)(33)(A). Id. at 1414. The Court rejected the notion that “deceiving the victim into drinking a poisoned beverage” did not constitute “physical force.” Id. at 1414-15. It explained that “[t]he use of force . . . is not the act of sprinkling the poison; it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter.” Id. at 1415. The Court posited that a contrary conclusion might permit defendants to argue “that pulling the trigger on a gun is not a ‘use of force' because it is the bullet, not the trigger, that actually strikes the victim.” Id.

         While Castleman dealt with a different statutory provision, [3] and even distinguished the meaning of “physical force” there from the meaning of “physical force” under the ACCA, see Id. at 1409-13, courts have nevertheless drawn upon Castleman's rationale and concluded that the differences between the statute at issue there and the ACCA are not material on the issue of what it means to “use” physical force. See, e.g., Kucinski v. United States, No. 16-CV-201-PB, 2016 WL 4444736, at *4-5 (D.N.H. Aug. 23, 2016) (concluding that the logic used in Castleman to define the “use of physical force” extended to the ACCA's force clause); see also United States v. Williams, No. 15cr0069 JDL, 2016 WL 1555696, at *8 n.13 (D. Me. Apr. 15, 2016); United States v. Bell, No. 15cr0258 WHO, 2016 WL 344749, at *8 (N.D. Cal. Jan. 28, 2016). This Court agrees that the Supreme Court's analysis of what it means to use physical force in Castleman is helpful even in the ACCA context.

         Contrary to Defendant's position, the Court finds that Johnson I and Castleman, taken together, instruct that a threat to use indirect physical force during a bank robbery, such as a threat to use poison, still qualifies as a threat to use violent, physical force under the ACCA. After all, the administration of poison would, no doubt, have a harmful, violent effect on the body of the one who ingests it. See United States v. Pena, 161 F.Supp.3d 268, 282 (reasoning, in the context of § 924(c), that poisoning a person would constitute the use of Johnson I physical force, as “poison can certainly be a strong enough force to cause physical pain or injury to another person”). Furthermore, given the Tenth Circuit's recent acknowledgement that even a “slap in the face, ” may rise to the level of violent, physical force, see Harris, 844 F.3d at 1265, it would be incongruous to hold that the administration of poison would not also satisfy Johnson I physical force.

         In his Objections, Defendant refers the Court to United States v. Eason, 829 F.3d 633 (8th Cir. 2016), in which the Eighth Circuit determined that Arkansas robbery did not constitute a violent felony under the ACCA, even though the state statute required a defendant to employ or threaten to immediately employ “physical force upon another person.” Id. at 640-41. There, the Eighth Circuit explained that Arkansas law defined physical force as “[b]odily impact, restraint, or confinement” or the threat thereof. Id. Defendant argues that, like ...

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