United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
CHRISTINA ARMIJO, Chief United States District Judge
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.
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
[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).
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.”).
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 (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.
Magistrate Judge Properly Concluded that New Mexico Armed
Robbery with a Firearm Enhancement is a “Violent
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, ...