United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
March 22, 2017, Defendant Jesus Rodriguez (Defendant) pled
guilty to a one-count indictment charging him with being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g). Defendant now objects to the determination in
his Presentence Report (PSR) that his sentence should be
enhanced under the Armed Career Criminal Act (ACCA), 18 U.S.C
§ 924(e). See DEFENDANT'S OBJECTIONS TO THE
PRESENTENCE REPORT (Doc. No. 47) (Objections). The United
States has responded to the Objections. UNITED STATES'
RESPONSE TO THE PRESENTENCE REPORT AND TO DEFENDANT'S
OBJECTIONS TO THE PRESENTENCE REPORT (Doc. No. 50)
(Response). The Court concludes that the United States
Probation Office (USPO) correctly calculated an enhanced
sentence under the ACCA in the PSR and the Court will
overrule Defendant's Objections.
an offense under § 922(g)(1) is generally subject to a
statutory maximum sentence of ten years, see 18
U.S.C § 924(a)(2), the ACCA will increase that penalty
to a statutory minimum sentence of fifteen years if the
offender has three prior convictions for a violent felony, a
serious drug offense, or both, that were committed on
different occasions. 18 U.S.C § 924(e)(1). A
“violent felony” for purposes of the ACCA
includes, in relevant part, “any crime punishable by
imprisonment for a term exceeding one year . . . that . . .
has as an element the use, attempted use, or threatened use
of physical force against the person of another[.]” 18
U.S.C § 924(e)(2)(B). “[I]n the context of a
statutory definition of ‘violent felony, ' the
phrase ‘physical force' means violent force-that
is, force capable of causing physical pain or injury to
another person.” Johnson v. United States, 559
U.S. 133, 140 (2010).
inquiry into whether a prior offense qualifies as a violent
felony ignores the facts of the defendant's conduct and
considers only the legal definition of the crime. Mathis
v. United States, 136 S.Ct. 2243, 2248 (2016). Because
the Court examines only the elements necessarily involved in
an offense, it presumes that the conviction rests upon the
least culpable acts criminalized. United States v.
Harris, 844 F.3d 1260, 1264 (10th Cir. 2017).
“[S]uch conduct only includes that in which there is a
‘realistic probability, not a theoretical
possibility' the state statute would apply.”
Id. (quoting Moncrieffe v. Holder, 569 U.S.
184, 133 S.Ct. 1678, 1685 (2013)).
USPO deemed Defendant subject to the ACCA based on three
prior New Mexico felony convictions, one for aggravated
assault with a deadly weapon and two for aggravated battery
against a household member. Resp. at 5-7. Defendant does not
challenge the determination that the aggravated assault is an
appropriate predicate offense for the ACCA enhancement.
However, Defendant contends that his prior aggravated battery
convictions do not meet the ACCA's definition of a
violent felony because they do not require violent physical
force. See Objections at 5-6.
battery against a household member consists of the unlawful
touching or application of force to the person of a household
member with intent to injure that person or another.”
NMSA 1978, § 30-3-16(A). When this aggravated battery
inflicts great bodily harm or is committed with a deadly
weapon or “in any manner whereby great bodily harm or
death can be inflicted” the offense is a felony. NMSA
1978, § 30-3-16(C). The parties agree that Defendant was
convicted of felony aggravated battery based on great bodily
harm. Nevertheless, Defendant argues that the offense does
not have as an element the use, attempted use, or threatened
use of violent physical force against the person of another.
battery may be committed in New Mexico by unlawful touching
or an application of force that amounts to only the slightest
touch. See Vasquez v. United States, No. 16-cv-678
(D.N.M. Jan. 10, 2017). Defendant contends that a slight
touch might result in great bodily harm, such as when poison
is applied to lips with a finger. He asserts that such
minimal contact would fulfill the statutory requirements of
felony aggravated battery without necessarily involving even
a threat of violent physical force.
relies on United States v. Perez-Vargas, 414 f.3d
1282 (10th Cir. 2005), in which the Tenth Circuit Court of
Appeals held that a Colorado assault statute, applicable when
a defendant caused bodily injury, did not include a crime of
violence because the statute did not have an element of
force. The Tenth Circuit reasoned that the statute focused
only on the consequences of the defendant's conduct,
regardless of the means used to achieve the resulting injury,
while a “crime of violence” under the Sentencing
Guidelines was limited to conduct involving physical force.
Perez-Vargas listed “recklessly shooting a gun
in the air to celebrate, intentionally placing a barrier in
front of a car causing an accident, or intentionally exposing
someone to hazardous chemicals” as examples of assaults
that would cause bodily injury without the use or threat of
further cites to United States v.
Rodriguez-Enriquez, 518 F.3d 1191 (10th Cir. 2008),
which held that surreptitiously drugging a victim did not
require the use of physical force. This holding was recently
reaffirmed in United States v. Hammons, 862 F.3d
1052 (10th Cir. 2017), which differentiated an Oklahoma
statute that required the discharge of a weapon, an action
characterized as necessitating kinetic, physical force, from
the passive act of exposing a victim to hazardous chemicals
cases might suggest that § 30-3-16(C) would not be a
violent felony for purposes of the ACCA if an aggravated
battery resulting in great bodily harm could be committed by
a non-forceful touch, such as the administration of poison.
However, the statutes at issue in Perez-Vargas and
Rodriguez-Enriquez did not require any unlawful
touch or application of force, even slight, so they do not
control the Court's analysis of § 30-3-16(C).
Defendant notes that New Mexico interprets the
“application of force” broadly, so as to apply to
“the situation in which the defendant does not touch
the victim himself, but instead, sets in motion a series of
physical events ultimately resulting in the application of
force to the victim.” State v. Wynn,
2001-NMCA-020, ¶ 2, 24 P.3d 816 (shooting of window pane
that fractured with victim cut by piece of glass). Defendant
argues that this interpretation would allow an aggravated
battery to be committed without any contact between
perpetrator and victim. He asserts that § 30-3-16(C) is
therefore not a violent felony because it would apply to
actions, such as the surreptitious administration of poison,
that the Tenth Circuit has held do not require physical
resolution of the issue depends upon an interpretation of
state law, Defendant asks the Court to certify the question
to the New Mexico Supreme Court. See DEFENDANT'S
REPLY IN SUPPORT OF OBJECTIONS TO THE PRESENTENCE REPORT
(Doc. No. 54); NOTICE OF DEFENDANT'S PROPOSED QUESTION
FOR CERTIFICATION TO THE NEW MEXICO SUPREME COURT (Doc. No.
59); REPLY IN SUPPORT OF DEFENDANT'S PROPOSED QUESTION
FOR CERTIFICATION TO THE NEW MEXICO SUPREME COURT (Doc. No.
63). The United States opposes the certification.
See UNITED STATES' OBJECTION TO CERTIFICATION OF
STATE QUESTION (Doc. No. 62); UNITED STATES' SUR-REPLY TO
DEFENDANT'S REPLY IN SUPPORT OF CERTIFICATION (Doc. No.
United States maintains that certification is not necessary
because § 30-3-16(C) requires at least a threat of
violent physical force, and therefore the PSR correctly
applies the ACCA to enhance Defendant's sentence. The
United States acknowledges that § 30-3-16 may apply to a
slight touch, but argues that any touch or application of
force that is intended to injure and that is committed in a
manner that may result in, or actually does result in, great
bodily harm must contain as an element at least the
threatened use of violent physical force.
United States v. Treto-Martinez, 421 F.3d 1156, 1158
(10th Cir. 2005), the Tenth Circuit Court of Appeals examined
a Kansas aggravated battery offense that criminalized
intentional physical contact with a deadly weapon or in a
manner that could inflict great bodily harm. The Court of
Appeals held that this was a crime of violence because all
intentional physical contact that can inflict great bodily
harm involves at least the threatened use of physical force.
Id. at 1160. The Court also concluded that the other
provision of the statute, which prohibited
“intentionally causing bodily harm to another person
with a deadly weapon, or in ...