United States District Court, D. New Mexico
ORDER OVERRULING PETITIONER'S OBJECTIONS,
ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION, AND DENYING PETITIONER'S
C. HERRERA, UNITED STATES DISTRICT COURT JUDGE
matter comes before the Court on Petitioner's Objections
to the Magistrate Judge's Proposed Findings and
Recommended Disposition (doc. 18). Being fully
advised, the Court will overrule the objections, adopt the
Proposed Findings and Recommended Disposition
(“PFRD”) (doc. 15), and deny
Petitioner's Emergency Motion to Vacate and Correct
Sentence Pursuant to 28 U.S.C. § 2255 (doc. 1)
21, 1998, Petitioner was convicted by a jury of Attempted
Armed Bank Robbery in violation of 18 U.S.C. § 2113(a)
and (d), as charged in Count I of the two- count first
superseding indictment. Cr. docs. 60, 94.
United States Probation Office prepared a presentence report
(“PSR”) to aid the Court in sentencing. The PSR
classified Petitioner as a career offender pursuant to
U.S.S.G. § 4B1.1, increasing the applicable mandatory
sentencing range to 262-367 months. PSR ¶¶ 35, 64;
see also U.S.S.G. § 4B1.1(b). Without the
career offender enhancement, the applicable sentencing
guideline range would have been 100-125 months. PSR ¶
Probation Office deemed the career offender enhancement
applicable based on its determination that both
Petitioner's instant offense of attempted armed bank
robbery as well as three of Petitioner's prior
convictions constituted “crimes of violence”
under the definition found in U.S.S.G. § 4B1.2(a)(2),
thus triggering the sentencing enhancement. PSR ¶¶
35, 64. These three prior convictions included: (1) a 1988
conviction for Attempt to Commit Aggravated Assault with a
Deadly Weapon; (2) a 1991 conviction for False Imprisonment;
and (3) a 1992 conviction for False Imprisonment, Aggravated
Assault, and Robbery. PSR ¶ 64.
sentencing phase, the Court rejected several of
Petitioner's arguments seeking a downward departure and
accepted 262-367 months as the applicable sentencing
guideline range. Accordingly, the Court sentenced Petitioner
to 262 months of imprisonment followed by a three-year period
of supervised release. See cr. doc. 102 at 10;
cr. doc. 142 at 13. Significant to the present
motion, Petitioner was sentenced in 1998, prior to the
Supreme Court's decision in United States v.
Booker, which made the sentencing guidelines
“effectively advisory.” 543 U.S. 220, 245, 258-65
(2005). Therefore, the sentencing judge had limited authority
to depart from the sentencing range dictated by the
time of Petitioner's sentencing, the guidelines defined
“crime of violence” as follows:
[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
U.S.S.G. § 4B1.2(a) (1997) (emphasis added).
italicized portion above is central to resolving
Petitioner's motion. This language is identical to what
is known as the “residual clause” of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B), which the Supreme Court struck down as
unconstitutionally vague in United States v.
Johnson, 135 S.Ct. 2551 (2015). The Supreme Court
announced that Johnson would apply retroactively on
collateral review in Welch v. United States,
reasoning that Johnson announced a substantive new
rule. 136 S.Ct. 1257, 1264-65 (2016). As the same
“residual clause” language of 18 U.S.C.
§924(e)(2)(B) appears in numerous other iterations
throughout the United States Code and in the United States
Sentencing Guidelines, the Johnson decision has
generated a mountain of jurisprudence devoted to examining
which-if any-of these doppelgängers falls under the
umbrella of the “new rule” announced in
matters further, a habeas petition brought pursuant
to 28 U.S.C. § 2255 is only timely if it is brought
within one year of the later of:
(1) the date on which the judgment of conviction becomes
. . .
(3) the date on which the right asserted was initially
recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review . . . .
Id. § 2255(f). Moreover, “[a] district
court is authorized to modify a Defendant's sentence only
in specified instances where Congress has expressly granted
the court jurisdiction to do so.” United States v.
Blackwell, 81 F.3d 945, 947 (10th Cir.
1996). Therefore, a petitioner such as Mr.
Zamora, who is seeking the benefit of the Johnson
rule whose sentence was not enhanced pursuant to the ACCA,
but whose conviction became final more than a year prior to
the filing of his petition, must overcome the additional
hurdle of proving his petition to be timely under ...