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Sarracino v. United States

United States District Court, D. New Mexico

August 30, 2017

PETER ALLEN SARRACINO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          THE HONORABLE M. CHRISTINA ARMIJO, UNITED STATES CHIEF DISTRICT JUDGE.

         THIS MATTER is before the Court on United States Magistrate Judge Carmen E. Garza's Proposed Findings and Recommended Disposition (the “PFRD”), (CV Doc. 16), filed June 26, 2017; Petitioner Peter Allen Sarracino's Objections to Proposed Findings and Recommended Dispositions (the “Objections”), (CV Doc. 17), filed July 11, 2017; and Respondent United States of America's Response to Peter Sarracino's Objections to Proposed Findings and Recommended Disposition (the “Response”), (CV Doc. 18), filed July 13, 2017.[1] Not before the Court is Petitioner's Reply to United States' Response to Mr. Sarracino's Objections to Proposed Findings and Recommended Dispositions, (CV Doc. 19), because the applicable rules of procedure do not allow replies to objections to a PFRD. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b) (allowing objections and responses, but not replies).

         In the PFRD, the Magistrate Judge recommended denying Petitioner's 2255 Motion to Vacate Illegal Career Offender Sentence Under Johnson v. United States, (the “Motion”), (CV Doc. 1), because Petitioner was not sentenced in reliance on the residual clause in United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) § 4B1.2 (1995).[2] (CV Doc. 16 at 22-23). The parties were notified that written objections to the PFRD were due within 14 days. Id. at 23. Petitioner timely objected to the PFRD, and Respondent timely responded to those objections. See Rule 12 of the Rules Governing Section 2255 Proceedings for the United States District Courts; Fed.R.Civ.P. 72(b)(2). Following de novo review of the PFRD, Objections, Response, and the record, the Court will overrule Petitioner's objections, adopt the PFRD, and deny Petitioner's Motion.

         I. Background

         On January 16, 1996, a jury found Petitioner guilty of kidnapping and second degree murder in violation of federal law. (CR Docs. 96, 97). Petitioner's Presentence Report (PSR) found Petitioner was a “career offender” under the Sentencing Guidelines based on Petitioner's conviction for second degree murder and his prior convictions for assault with a dangerous weapon under federal law and voluntary manslaughter under New Mexico law. (CV Doc. 1 at 2; CV Doc. 12 at 2). Ultimately, Petitioner received two concurrent life sentences. (CR Doc. 127).

         On June 27, 2016, Petitioner filed the instant Motion, arguing his designation as a career offender and subsequent sentence violated his rights to due process as articulated in Johnson v. United States, 135 S.Ct. 2551 (2016). (CV Doc. 1 at 1). In Johnson, the Supreme Court of the United States held that the so-called “residual clause” in the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague and may not be relied on in imposing an enhanced sentence. Johnson, 135 S.Ct. at 2556 57. Petitioner claims he was sentenced in reliance on the residual clause in Guidelines § 4B1.2, which is identical to the residual clause in the ACCA and which, Petitioner argues, must also be unconstitutionally vague. (CV Doc. 1 at 5). Although the Supreme Court held that the residual clause in the advisory Guidelines is not unconstitutionally vague in Beckles v. United States, 137 S.Ct. 886, 896 (2017), Petitioner argues that Beckles does not apply to him because the Guidelines were mandatory, rather than advisory, when he was sentenced. (CV Doc. 11 at 3-9). Finally, Petitioner argues that his predicate crimes were not “crimes of violence” except under the residual clause. (CV Doc. 1 at 6-13).

         In the PFRD, the Magistrate Judge first agreed that Beckles does not apply in this case because Petitioner was sentenced when the Guidelines were mandatory rather than advisory. (CV Doc. 16 at 4-7). Next, the Magistrate Judge found that Johnson applies retroactively because it announced a substantive rule; therefore, Petitioner could be resentenced if he were sentenced in reliance on the residual clause. (CV Doc. 16 at 7-11). But the Magistrate Judge disagreed that Petitioner's predicate crimes were not crimes of violence except under the residual clause. Instead, all three were crimes of violence under the “elements clause” in Guidelines § 4B1.2(1)(i). (CV Doc. 16 at 11-22). Accordingly, the Magistrate Judge concluded Petitioner's designation as a career offender and resulting sentence were not based on the residual clause and were not unconstitutional; therefore, Petitioner's Motion should be denied. (CV Doc. 16 at 22-23). Petitioner's Objections and Respondent's Response followed.

         II. Analysis

         Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings for the United States District Courts, a district judge may, under 28 U.S.C. § 636(b), refer a pretrial dispositive motion to a magistrate judge for proposed findings of fact and recommendations for disposition. Within fourteen days of being served, a party may file objections to this recommendation. Rule 8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts. A party may respond to another party's objections within fourteen days of being served with a copy; the rule does not provide for a reply. Fed.R.Civ.P. 72(b).[3]

         When resolving objections to a magistrate judge's recommendation, the district judge must make a de novo determination regarding any part of the recommendation to which a party has properly objected. 28 U.S.C. § 636(b)(1)(C). Filing objections that address the primary issues in the case “advances the interests that underlie the Magistrate's Act, including judicial efficiency.” U.S. v. One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1059 (10th Cir. 1996). Objections must be timely and specific to preserve an issue for de novo review by the district court or for appellate review. Id. at 1060. Additionally, issues “raised for the first time in objections to the magistrate judge's recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see also U.S. v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.”).

         Petitioner timely submitted eight objections. (CV Doc. 16 at 1-3). Although Respondent did not file objections, Respondent responded to Petitioner's Objections. (CV Doc. 18). The Court will address each objection in turn.

         a. Whether Petitioner's crimes are crimes of violence

         Petitioner first objects to the Magistrate Judge's findings that Petitioner's predicate crimes are crimes of violence, but he does not identify any particular error or support his objection with any discussion. (CV Doc. 16 at 1). The PFRD accurately described the categorical approach to be used when analyzing whether a conviction is for a crime of violence, and correctly defined a “crime of violence” under the “elements clause” as one involving the use, attempted use, or threatened use of violent physical force. (CV Doc. 16 at 11-12). Finally, the PFRD recognized the law at the time that a mens rea of recklessness did not establish intentional “use of force.” (CV Doc. 16 at 18-19). These were accurate statements of the governing law that were correctly applied, as will be further discussed below.

         b. Whether the Magistrate Judge correctly applied the categorical approach

         Second, Petitioner broadly objects to the Magistrate Judge's categorical analysis and her reference to Castleman v. United States, 134 S.Ct. 1405 (2014). (CV Doc. 17 at 1-2). Specifically, Petitioner objects to the statement “it is impossible to cause bodily injury without using force ‘capable of' producing that result.” Castleman, 134 S.Ct. at 1416-17 (Scalia, J., concurring). Petitioner characterizes this quote as an “ends justify the means” form of “legal imagination.” (CV Doc. 17 at 2-3).

         In Castleman, the Supreme Court held that “indirect” application of force is still “use” of force. 134 S.Ct. at 1414-15. The Supreme Court reasoned that there is no meaningful difference between direct use of force, like kicking and punching, and indirect use of force, like poisoning or shooting a gun. Id. That is, administering a poison, infecting with a disease, and shooting a gun all involve “use” of force even though the defendant does not directly apply force to a victim's body; rather the poison, disease, and bullet apply force. Id. (“That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter.”). The Castleman court left open the question whether “causation of bodily injury necessarily entails violent force, ” but the court stated plainly “[i]t is impossible to cause bodily injury without applying force in the common-law sense.” Id. at 1413, 1415; see id. at 1416-17 (Scalia, J., concurring) (stating “it is impossible to cause bodily injury without using force ‘capable' of producing that result.”). Thus, the question Castleman left open is whether the force used to cause bodily injury is significant enough to qualify as “violent force.”

         Given the Supreme Court's rationale, the Court finds the Magistrate Judge's reliance on Castleman appropriate. In his Motion, Petitioner argued his predicate convictions were not for crimes of violence because they could be committed by using force indirectly, for example by poisoning, exposing someone to hazardous chemicals, or placing a barrier in front of the victim's car. (CV Doc. 1 at 8, 11, 12). Castleman explicitly ...


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