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United States v. Montes

United States District Court, D. New Mexico

September 29, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
VICENTE MONTES, Defendant/Petitioner. Cr. No. 7-2236-MCA

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          M. CHRISTINA ARMIJO, Chief United States District Judge

         THIS MATTER comes before the Court on Vicente Montes' Emergency Motion to Correct Sentence pursuant to 28 U.S.C. § 2255, filed June 2016. [Doc. 1] On May 22, 2017 United States Magistrate Judge Kirtan Khalsa filed Proposed Findings and Recommended Disposition (“PFRD”) recommending that the Court deny Mr. Montes' Motion and dismiss this case with prejudice. [Doc. 19] On June 5, 2017, Mr. Montes (“Defendant”) filed Defendant's Objections to Magistrate Judge's Proposed Findings and Recommended Disposition in which Defendant urged the court to not adopt the PFRD and instead to grant Defendant's Section 2255 Motion. [Doc. 20] Defendant's Section 2255 Motion and Defendant's objections are now before the Court. For the reasons that follow, the Court denies Defendant's objections and adopts the Magistrate Judge's PFRD.

         Standard of Review

         District courts may refer dispositive motions to a magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b)(1). “Within 14 days after being served with a copy of the [magistrate judge's] recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1). When resolving objections to a magistrate judge's proposal,

[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1).

         “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). Further, “[i]ssues 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 United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time in objections to the magistrate judge's report are deemed waived.”).

         Analysis

         Defendant raises two objections to the PFRD. First, characterizing the firearm enhancement as a “separate state sentencing enhancement” or a “separate offense” distinct from the crime of armed robbery, Defendant contends that the Magistrate Judge erred in concluding that armed robbery with a firearm enhancement, in contrast to armed robbery, constitutes a violent felony under the elements clause of the Armed career Criminal Act[1] (the ACCA). [Doc. 20 p. 2-5] Secondly, Defendant argues that New Mexico law does not “necessarily dictate [the] conclusion” reflected in the PFRD that a conviction for voluntary manslaughter requires the defendant to have employed violent physical force. [Doc. 20 p. 5-8] Each of these arguments is addressed in the Court's ensuing discussion.

         The Magistrate Judge Properly Concluded that New Mexico Armed Robbery with a Firearm Enhancement is a “Violent Felony”

         Defendant was convicted in New Mexico of armed robbery (firearm enhancement). [Doc. 19 p. 3] NMSA 1978, Section 30-16-2, which criminalizes robbery, provides that:

[r]obbery consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.
Whoever commits robbery is guilty of a third degree felony.
Whoever commits robbery while armed with a deadly weapon is, for the first offense, guilty of a second degree felony and, for second and subsequent offenses, ...

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