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United States v. Sanchez

United States District Court, D. New Mexico

September 27, 2017

ARTHUR SANCHEZ, Defendant. No. CR 13-961 JAP


         On June 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.

         On July 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).

         In its 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).

         The 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.

         Procedural Background[1]

         On 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.

         Although 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 findings.[2]

         In his § 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.

         Legal Standard

         When 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).

         The 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 elements clause.

         In 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”).

         The 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.”).

         In a 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.


         I. New Mexico Robbery

         Mr. 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.

         This 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 ...

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