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United States v. Manzanares

United States District Court, D. New Mexico

September 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ARCHIE MANZANARES, Defendant.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before me on Defendant Archie Manzanares's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255, filed June 15, 2016. [CR Doc. 35; CV Doc. 1]. The United States responded on November 19, 2016.[1] [CR Doc. 42; CV Doc. 10]. Manzanares replied on January 13, 2017. [CR Doc. 51; CV Doc. 19]. The Honorable William P. Johnson, United States District Judge, referred this matter to me for analysis and a recommended disposition. [CV Doc. 2]. Having considered the briefing, relevant portions of the underlying criminal record, and relevant authorities, and being otherwise fully advised in the premises, I find that Manzanares's prior felony convictions for aggravated assault with a deadly weapon, aggravated battery, and armed robbery qualify as violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), irrespective of the now-unconstitutional residual clause. I further find that the government did not waive its argument that the predicate offenses qualify outside of the residual clause. Therefore, he is not entitled to re-sentencing pursuant to Johnson v. United States and Welch v. United States. I recommend that his motion be denied.

         I. Background

         On June 27, 2012, Manzanares was charged via indictment with being a felon in possession of a firearm/ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). Presentence Report (“PSR”) at 4. On April 1, 2013, he was charged via information with possession of heroin, in violation of 21 U.S.C. § 844(a). Id. He pleaded guilty to both charges on April 1, 2013. Id. The plea bargain Manzanares negotiated with the government hinged on his status as an armed career criminal pursuant to the Armed Career Criminal Act (“ACCA”). If he was found to be an armed career criminal, the parties would agree to a sentence of 180 months, or 15 years. Id. If he was found not to be an armed career criminal, Manzanares would be permitted to withdraw from the plea. Id.

         United States Probation and Pretrial Services prepared his PSR. It provided that Manzanares qualified as an armed career criminal under the ACCA because he had at least three prior convictions for violent felonies or serious drug offenses. Id. at 7. In applying the ACCA enhancement, the PSR did not list which prior felony convictions constituted the “violent felonies” or “serious drug offenses.” Id. Elsewhere in the PSR, however, Manzanares's prior felony convictions are listed. Id. at 5. Among them are aggravated assault with a deadly weapon, aggravated battery, and armed robbery, all in New Mexico. Id. Likewise, the PSR lists his entire criminal history in a separate section, though it does not indicate which of the offenses were felonies (as opposed to misdemeanors) and which were relied on as predicate offenses in applying the ACCA enhancement. See Id. at 8-12.

         With the armed career criminal enhancement, Manzanares's offense level was 34. Id. at 7. Based on a downward adjustment for acceptance of responsibility, his total offense level was 31, with a criminal history category of VI and a guideline imprisonment range of 188-235 months. Id. at 8, 19. On July 2, 2013, the Court held a sentencing hearing. See [CR Doc. 33]. The parties did not object to the PSR. See Id. at 3. The Court accepted the plea agreement and the PSR's designation of Manzanares as an armed career criminal under the ACCA. Id. at 5. The Court sentenced him to 180 months' imprisonment. Id. Manzanares did not appeal his sentence. The instant case is his first motion under § 2255.

         II. Motions under § 2255 and Johnson II

         Pursuant to 28 U.S.C. § 2255(a), a “prisoner in custody” pursuant to a federal conviction may “move the court . . . to vacate, set aside or correct the sentence” if it “was imposed in violation of the Constitution or laws of the United States.”

         In Johnson v. United States (“Johnson II”), 135 S.Ct. 2551, 2557 (2015), the Supreme Court held that the so-called “residual clause” of the definition of “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. The ACCA defined “violent felony” as follows:

any crime punishable by imprisonment for a term exceeding one year . . . that -
(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.

Id. (emphasis added). The closing words of this definition, italicized above, have come to be known as the “residual clause.”

         The Court explained that the residual clause left “grave uncertainty” about “deciding what kind of conduct the ‘ordinary case' of a crime involves.” Johnson II, 135 S.Ct. at 2557. That is, the residual clause “denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges” because it “tie[d] the judicial assessment of risk to a judicially imagined ‘ordinary case' of a crime, not to real-world facts or statutory elements.” Id. Second, the ACCA's residual clause left “uncertainty about how much risk it takes for a crime to qualify as a violent felony.” Id. at 2558. By combining these two indeterminate inquiries, the Court held, “the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id. On that ground it held the residual clause void for vagueness. Id.

         Soon thereafter, the Court determined that the ruling in Johnson II was substantive (as opposed to procedural) and, therefore, had “retroactive effect in cases on collateral review.” Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Accordingly, Welch opened the door for individuals sentenced under the residual clause of the ACCA's violent-felony definition to move to vacate their sentences as unconstitutional under § 2255.

         III. Manzanares's § 2255 Motion

         Manzanares has at least three prior felony convictions that were determined to qualify as violent felonies under § 924(e)(2)(B) of the ACCA, triggering that provision's sentencing enhancement.[2] See PSR at 5, 7; [CR Doc. 2] at 1. He now challenges the application of the sentencing enhancement. Manzanares first raises a threshold issue. Neither the PSR nor the Court expressly stated (1) which three of his prior felony convictions were the predicate offenses that justified application of the ACCA enhancement or (2) which clause of § 924(e)(2)(B) the convictions fell under (i.e., the so-called “force clause, ” the “enumerated clause, ” or the “residual clause”). [Doc. 1][3] at 6-9; [Doc. 19] at 13-14. Because the government failed to object to the PSR or the Court's adoption of the ACCA enhancement at sentencing, Manzanares contends that it has waived the right to now argue that certain of his prior convictions qualified as violent felonies under the clauses that remain intact in § 924(e)(2)(B) in the wake of Johnson II. Manzanares maintains that it was never clear “which, if any, ” of his prior convictions qualified as violent felonies. [Doc. 1] at 8. He argues it would be “fundamentally unfair” to permit the government to “swap in” convictions it now believes are violent felonies notwithstanding the holding of Johnson II and the unconstitutional residual clause. Id. at 7, 9.

         In the alternative, Manzanares contends that his prior convictions do not qualify as violent felonies under the remaining clauses of § 924(e)(2)(B). He identifies three of his prior New Mexico convictions: aggravated assault with a deadly weapon, aggravated battery, and armed robbery.[4] He argues that none of the offenses requires the degree of physical force necessary to satisfy the force clause of § 924(e)(2)(B), and none qualifies under the enumerated clause. And, given that the residual clause has been invalidated, he contends he does not have the requisite predicate offenses and is therefore entitled to be resentenced.

         The government contends, as an initial matter, that it did not waive the right to contest that certain of Manzanares's prior felony convictions qualify under the still-extant clauses of the ACCA's definition of “violent felony, ” even if they were not specified in the PSR or at sentencing. [Doc. 10] at 14-15. The government argues that, because Manzanares did not object to the PSR or the imposition of the armed career criminal enhancement, “the Court must assume that it relied upon all” of Manzanares's prior convictions. Id. at 15 (emphasis added). The government contends that each of the three identified prior convictions qualifies under the force clause of the ACCA. Id. at 3-14.

         IV. The United States did not waive the right to argue that Manzanares's prior felony convictions qualified as violent felonies under the force clause of the ACCA.

         Manzanares raises a threshold issue that I consider at the outset. In effect, he argues that the government was obligated to object to the PSR's and the Court's failure to identify explicitly which of his prior felony convictions supported his ACCA enhancement or which clause of § 924(e)(2)(B) (i.e., the force clause, enumerated clause, or residual clause) the convictions qualified under. See [Doc. 1] at 6-7. Manzanares contends that, by failing to object at the time of his sentencing, the government waived the right to identify at this later date certain of those prior convictions and argue that they still qualify as ACCA predicate offenses in the wake of Johnson II. Manzanares contends it would be “fundamentally unfair” to allow the government to “swap out unidentified ACCA predicate offenses” on collateral review of his ACCA enhancement. I find that the government has not waived these arguments, and all of Manzanares's prior qualifying offenses constitute the “universe of convictions” that may be considered in determining whether he is entitled to relief.

         As Manzanares points out, the government bears the burden of proving by a preponderance of the evidence that a sentencing enhancement is appropriate. United States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012). The PSR in this case identified six prior felony convictions and, without stating which of the six were qualifying predicate offenses, applied the ACCA enhancement. The Court accepted the finding that Manzanares was an armed career criminal and accepted the plea agreement. There can be no doubt that Manzanares knew the ACCA enhancement was being applied. Indeed, his plea agreement was specifically premised on a finding that he qualified as an armed career criminal; if the Probation Office or the Court were to find otherwise, Manzanares was entitled to withdraw from the plea agreement. Manzanares did not object to the PSR. Nor did he object at sentencing.

         Although Manzanares now maintains that the government cannot rely on prior convictions not specifically referenced as ACCA predicates in the PSR or at sentencing, he provides no case law that actually supports his argument as applied to the facts of this case. He relies on a single case from the Eleventh Circuit in support of his position. See [Doc. 1] at 7 (citing McCarthan v. Warden, 811 F.3d 1237 (11th Cir. 2016), rev'd en banc on other grounds sub nom. McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (2017)). In McCarthan, the Eleventh Circuit was tasked with determining the “universe of convictions” it could consider in determining, on the defendant's § 2241 motion, whether the ACCA enhancement was appropriate. 811 F.3d at 1253-54. As in the present case, neither the PSR nor the sentencing court explicitly identified which ones qualified as ACCA predicates. Id. at 1242. Neither the government nor the defendant had objected to the failure to specifically identify the qualifying offenses. Id. On review, the court noted that, “[i]n general, both the PSR and the sentencing court should specifically identify which of a defendant's prior convictions qualify” as ACCA predicates. Id. at 1253. A defendant is “entitled to know the specific convictions on which an ACCA enhancement is recommended and imposed.” Id. “To hold otherwise would raise serious due-process concerns.” Id. The court went on to hold, however, that the defendant had “forfeited any objection to the sentencing court's failure to identify the specific convictions supporting his ACCA enhancement” by failing to object to the PSR, failing to object at his sentencing hearing, and failing to raise the issue in his first § 2255 petition. Id. at 1253-54. The court concluded that it “must, therefore, assume that the district court relied on all of [the defendant's] ACCA-qualifying convictions in imposing” his ACCA enhancement. Id. at 1254.

         To be sure, McCarthan states that a defendant is entitled to know which of his prior convictions serve as qualifying offenses for purposes of the ACCA enhancement. But it also puts the onus on the defendant, not the government, to object to the PSR or at sentencing where the ACCA enhancement is applied and the qualifying prior convictions are not expressly identified.[5] And, where there is no such objection, the reviewing court may presume that the sentencing court relied on all ACCA-qualifying convictions. McCarthan contravenes Manzanares's waiver argument.

         A recent decision from this District further compels my finding that the government has not waived the right to rely on Manzanares's prior convictions. See United States v. Garcia, No. 16-cv-0240 JB/LAM, 2017 WL 2271421, at *19-21 (D.N.M. Jan. 31, 2017). In that case, the defendant contended the government had waived the right to argue on collateral review that robbery was a qualifying violent felony, because the PSR failed to include robbery as one of the three predicate offenses that gave rise to the ACCA enhancement and the government did not object. Id. at 19. The court disagreed. Though the robbery conviction was not listed in the ACCA section of the PSR, it was included in the PSR's list of his prior convictions, and the sentencing judge relied on the PSR in its entirety. For that and other reasons specific to that case, [6] the government had not waived its argument. The court also found that the defendant had not waived his argument by failing to object to the PSR or at sentencing. Ultimately, “even if [the defendant] did not have reason to object at the time of sentencing, and did not object, these issues . . . are irrelevant. There is no dispute that he has a robbery conviction, and the conviction's existence cannot be waived. The Court can consider it. It does not disappear. What [the sentencing judge] did with it, or did not do with it, ten years ago is irrelevant.” Id. at 21. Garcia thus stands for the proposition that a party's failure to object to the inclusion or exclusion of a prior conviction at sentencing does not foreclose consideration of that conviction on collateral review.

         The applicable “universe of convictions” in the present case consists of all ACCA-qualifying prior felony convictions listed in Manzanares's PSR. The government is not foreclosed from arguing that any such convictions remain qualifying “violent felonies” even absent the unconstitutional residual clause.

         V. I will conduct harmless error review.

         As noted above, the record is silent as to which clause or clauses under § 924(e)(2)(B) the Court relied on at sentencing in finding that Manzanares had the requisite number of qualifying ACCA offenses. Thus, it is simply not clear whether there was, in fact, constitutional error in Manzanares's sentencing. Courts have divided on the question of whether a defendant must make a threshold showing that he was sentenced under the residual clause before his § 2255 claim may proceed.[7] The government does not argue that Manzanares was required to make such a showing. Instead, the government essentially makes a “harmless error” argument. That is, the government argues that Manzanares is not entitled to resentencing because, notwithstanding the now-invalided residual clause, his prior convictions still qualify as violent felonies under the force clause. Any reliance on the residual clause at sentencing, therefore, was harmless.

         The harmless error analysis turns on whether a court harbors “grave doubt” about whether the claimed error had a “substantial and injurious effect or influence” on the outcome. O'Neal v. McAninch, 513 U.S. 432, 436 (1995); see also United States v. Rivera, 347 F.3d 850, 852 (10th Cir. 2003).[8] Numerous courts have found that § 2255 petitions based on Johnson II are subject to harmless error analysis. See, e.g., United States v. Mitchell, 653 F. App'x 639, 645 n.7 (10th Cir. 2016) (“[B]ecause [the defendant's] prior conviction qualified [as a crime of violence] under the still-valid [force] clause, any error was harmless because the outcome would have been the same if the court explicitly applied that clause.”); Garcia, 2017 WL 2271421, at *17-18 (applying harmless error review and noting that “[a] majority of courts hearing § 2255 petitions in this context” have done the same); United States v. Richardson, 2016 WL 6600242, at *4 (D. Colo. Nov. 8, 2016) (applying harmless error review in Johnson II context); see also United States v. Hicks, 2016 WL 5672949, at *3 (N.D. Cal. Oct. 3, 2016) (collecting cases). I will conduct harmless error review. That is, I will consider whether any reliance on the now-invalidated residual clause was harmless because Manzanares's prior felony convictions for aggravated assault with a deadly weapon, aggravated battery, and armed robbery qualify under the force clause of the ACCA.[9]

         VI. Manzanares's predicate offenses qualify as violent felonies under the force clause of the ACCA.

         A. The Force Clause of § 924(e)(2)(B)

         The “force clause” of § 924(e)(2)(B) provides that an underlying conviction is a violent felony where it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” § 924(e)(2)(B)(i). To determine whether a prior conviction qualifies as a violent felony under the force clause, courts compare § 924(e)(2)(B)(i) with the elements of the underlying statute of conviction.

         Specifically, courts must compare the force required for a conviction of the predicate offense against the physical force requirement of § 924(e)(2)(B)(i). Courts must determine whether the least culpable conduct criminalized by the underlying offense-e.g., the least amount of force required to sustain a conviction for New Mexico aggravated assault with a deadly weapon-meets the physical force requirement of the force clause. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013) (“Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized, and then determine whether even those acts are encompassed by [the force clause].” (last set of brackets added) (internal quotation marks omitted)). This inquiry requires application of both federal and state law. Federal law defines the meaning of the phrase “use, attempted use, or threatened use of physical force” in § 924(e)(2)(B)(i). United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017). And state law defines the substantive elements of the crime of conviction. Id.; United States v. Rivera-Oros, 590 F.3d 1123, 1126 (10th Cir. 2009). ...


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