United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
23, 2016, Arthur Sanchez filed a MOTION TO CORRECT SENTENCE
PURSUANT TO 28 U.S.C. § 2255 (§ 2255 Motion) (Doc.
No. 1). Mr. Sanchez's § 2255 Motion asks the Court
to set aside his conviction and sentence in accordance with
Samuel Johnson v. United States, 135 S.Ct. 2551
(2015), in which the United States Supreme Court struck down
the residual clause of the Armed Career Criminal Act (ACCA)
as unconstitutionally vague.
5, 2017, after considering initial and supplemental briefing,
United States Magistrate Judge Gregory B. Wormuth recommended
denying Mr. Sanchez's § 2255 Motion. PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION (PFRD) (Doc. No. 20). On
August 2, 2017, Mr. Sanchez filed objections to the PFRD,
arguing, in part, that the government has not established
that his prior convictions qualified as violent felonies for
purposes of enhancing Mr. Sanchez's sentence under the
ACCA. Mr. Sanchez asks the Court to vacate his ACCA sentence
and to re-sentence him to a prison term of no greater than
ten years. MR. SANCHEZ'S OBJECTIONS TO THE MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
(Objections) (Doc. No. 23).
Response to the Objections, the government counters that none
of the cases cited by Mr. Sanchez, most of which concern
robbery statutes in other states, support Mr. Sanchez's
request. UNITED STATES' RESPONSE TO OBJECTIONS TO
MAGISTRATE'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF
LAW (Response) (Doc. No. 24). Mr. Sanchez maintains that the
government's position is inaccurate and untenable. MR.
SANCHEZ'S REPLY TO THE GOVERNMENT'S RESPONSE TO HIS
OBJECTIONS TO THE MAGISTRATE JUDGE'S PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION (Reply 1) (Doc. No. 25).
Court has conducted a de novo review of those
portions of the PFRD to which Mr. Sanchez objects, and it has
reviewed the pertinent law as well as all of the briefing and
attachments. For the reasons explained below, the Court will
overrule Mr. Sanchez's objections and will adopt the
Magistrate Judge's PFRD, with the result that Mr.
Sanchez's § 2255 Motion will be denied.
December 17, 2013, Mr. Sanchez pleaded guilty to the offenses
of possession of heroin with the intent to distribute in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)
and being a felon in possession of a firearm and ammunition
in violation of 18 U.S.C. § 922(g)(1) and §
924(a)(2). Cr. Doc. Nos. 30, 31, 32. Mr. Sanchez entered into
a Rule 11(c)(1)(C) plea agreement that included a binding
stipulation to a term of imprisonment of 180 months (15
years) and three years of supervised release. Cr. Doc. No. 32
at 1, 4.
an offense under § 922(g)(1) is generally subject to a
statutory maximum sentence of ten years, the ACCA will
increase that penalty to a statutory minimum sentence of 15
years if the offender has three prior convictions for a
violent felony. 18 U.S.C. § 924(e)(1). In its
presentence report (PSR), the United States Probation Office
found that Mr. Sanchez had at least three prior violent
felony convictions, PSR ¶ 57 - third degree robbery,
aggravated assault with a deadly weapon, and aggravated
battery with a deadly weapon. As a result, Mr. Sanchez
qualified as an armed career criminal under the ACCA, PSR
¶¶ 57, 71, and faced a minimum term of 15
years' imprisonment. See Logan v. United States,
552 U.S. 23, 27 (2007). At the time of his sentencing, Mr.
Sanchez did not dispute any of the PSR
§ 2255 Motion, Mr. Sanchez argued that after the
Samuel Johnson decision, his prior New Mexico
convictions for robbery, aggravated assault, and aggravated
battery no longer qualified as predicate violent felonies for
purposes of enhancing his sentence under the ACCA. Magistrate
Judge Wormuth recommended finding that all three of the New
Mexico convictions were violent felonies under the elements
clause of the ACCA, and that, therefore, Mr. Sanchez was
properly sentenced. In his Objections to the PFRD, Mr.
Sanchez challenges the Magistrate Judge's application and
interpretation of “the elements clause, ” also
referred to as “the physical force clause” of the
ACCA, i.e., 18 U.S.C. § 924(e)(2)(B)(i), as to each of
the three prior convictions.
Mr. Sanchez was sentenced, the ACCA defined a “violent
felony” as 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[.]
18 U.S.C. § 924(e)(2)(B) (emphasis added).
italicized portion of subparagraph ii above is known as
“the residual clause” of the ACCA, which the
Supreme Court struck down as unconstitutionally vague in its
2015 Samuel Johnson decision. See Samuel
Johnson, 135 S.Ct. at 2556-61. The Samuel
Johnson decision left intact subparagraph i - “the
elements clause” or “the physical force
clause” of the ACCA. Id. at 2557, 2563. As
stated above, Mr. Sanchez's challenges relate to the
United States v. Harris, 844 F.3d 1260 (10th Cir.
2017), pet. for cert. filed, Harris v. United
States (U.S. Apr. 4, 2017) (No. 16-8616), the Tenth
Circuit Court of Appeals noted that a court should apply a
“categorical approach” in determining if a prior
conviction qualifies as an ACCA violent felony, i.e.,
“focusing on the elements of the crime of conviction,
not the underlying facts.” Id. at 1263
(citation omitted). A categorical approach does not require
that “every conceivable factual offense covered by a
statute fall within the ACCA. Rather, the proper inquiry is
whether the conduct encompassed by the elements of the
offense, in the ordinary case, qualifies under the ACCA as a
violent felony…” United States v.
Smith, 652 F.3d 1244, 1246 (10th Cir. 2011) (citation
omitted). See Begay v. United States, 553 U.S. 137,
141 (2008) (observing that a court should consider an offense
“generically, … in terms of how the law defines
the offense and not in terms of how an individual offender
might have committed it on a particular occasion”).
Harris Court evaluated whether Colorado's
robbery statute “has as an element the use, attempted
use, or threatened use of physical force against the person
of another.” Id. at 1263-64 (citation
omitted). The Tenth Circuit Court advised that involves two
steps, the application of federal law and then of state law
because federal law defines the meaning of the phrase
“use, attempted use, or threatened use of physical
force” and “state law defines the substantive
elements of the crime of conviction.” Id. at
1264 (citations omitted). See United States v.
Nicholas, 686 F. App'x 570, 574 (10th Cir. 2017) (in
analyzing whether the defendant's prior felony conviction
for Kansas robbery was a violent felony, the court employed a
two-step inquiry: “first, ‘we must identify the
minimum force required by [Kansas] law for the crime of
robbery'; second, we must ‘determine if that force
categorically fits the definition of physical force'
required under the ACCA.”).
2010 decision, the United States Supreme Court held that
“physical force” meant “violent
force - that is, force capable of causing physical pain or
injury to another person.” Curtis Johnson v. United
States, 559 U.S. 133, 140 (2010) (emphasis in original).
The word “‘violent' … connotes a
substantial degree of force.” Id. “[T]he
term ‘physical force' itself normally connotes
force strong enough to constitute
‘power'….” Id. at 142.
“[Physical force] might consist, for example, of only
that degree of force necessary to inflict pain - a slap in
the face, for example.” Id. at 143.
New Mexico Robbery
Sanchez contends that the government has failed to satisfy
its burden in proving that any of the prior felony
convictions, including robbery ‘“
necessarily' satisfy[ies] the ‘physical force'
clause's prerequisites.” Objections at 2. Mr.
Sanchez also asserts that the Magistrate Judge appears to
have “lost sight of critical principles, ” has
misread New Mexico and federal law, and has misunderstood Mr.
Sanchez's arguments. See Objections at 2, 3, 7,
15. Mr. Sanchez's overarching argument appears to be that
the New Mexico robbery statute requires nothing more than
minimal or minuscule physical contact (or the threat of that
type of physical contact), which does not amount to
Curtis Johnson force, and, accordingly, cannot
qualify as an ACCA violent felony.
Court disagrees with Mr. Sanchez and overrules the
objections. Magistrate Judge Wormuth thoroughly and carefully
interpreted the pertinent case law in relation to Mr.
Sanchez's arguments. In addition, Judge Wormuth's
interpretations of the case law and his conclusions are
consistent with almost all of the decisions in this ...