United States District Court, D. New Mexico
Presiliano Torrez Assistant United States Attorney United
States Attorney's Office Albuquerque, New Mexico Attorney
for the Plaintiff
E. Esquibel The Barnett Law Firm Albuquerque, New Mexico
Attorney for the Defendant
MEMORANDUM OPINION AND ORDER OF DISMISSAL
MATTER comes before the Court on the Omar
Mohammed's Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody, filed on May 9, 2016 (Doc. 1)(“Motion”).
Plaintiff Omar Mohammed also filed the Supplemental Brief
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence, filed November 29, 2016 (Doc. 19)(“Suppl.
Brief”). Mohammed filed the Motion pro se;
Mohammad's appointed counsel, Diego R. Esquibel filed the
Suppl. Brief. Mohammed contends that his status as a
“Career Offender” and sentence enhancement under
U.S.S.G. § 4B1.1 are invalid in light of the Supreme
Court's of the United States of America holding in
Johnson v. United States, 135 S.Ct. 2551 (2015). For
the reasons explained below, the Court concludes that
Mohammed is not entitled to relief under Johnson v.
United States, dismisses his Motion and Supplemental
Brief, and enters judgment.
Criminal Complaint Affidavit alleged that, on February 27,
2003, at approximately 2:40 p.m., Mohammed entered a Bank of
America branch wearing a dark colored ski mask, light pants,
a dark jacket, tan boots, and carried a dark bag.
See Presentence Investigation Report, filed
September 30, 2013 (Doc. 367), ¶ 12, at 3
(“PSR”). Mr. Mohammed, along with co-defendant,
Curtis Dwayne Frazier, allegedly jumped on the teller
counter, yelled at bank employees and customers “get
down, get down, ” jumped behind the teller counter, and
pulled in $29, 816.00 in United States currency,
cashier's checks and money orders. See PSR
¶ 12, at 4. Mr. Mohammed and Mr. Frazier then exited the
bank and escaped in a small, two-door gold car that Gene Alan
Summers, a third co-defendant drove. See PSR ¶
12, at 4.
Police Department (“APD”) officers surveilled the
apartment where Mohammed and Frazier fled, and conducted a
traffic stop when Mohammed, Frazier, Summers, and a fourth
co-defendant, later identified as Marvin Thomas, were seen
leaving in a red SUV. See PSR ¶¶ 13-14, at
4. APD officers observed large quantities of cash in plain
view. See PSR ¶¶ 13-14, at 4. When APD
officers asked Mohammed during a pat down about a large lump
in his pants, Mohammed replied, “What do you think it
is? It's the money from the bank robbery.”
See PSR ¶ 15, at 4. APD officers subsequently
searched the surveilled apartment and found clothing that
matched the description of clothing that Mohammed wore during
the bank robbery, as well as a large amount of United States
currency in the form of coin rolls, money straps, and
miscellaneous papers. See PSR ¶16, at 4-5.
Officers recovered $28, 196.40 of the $29, 816.00 reported
stolen. See PSR ¶16, at 5. Mohammed was
arrested on February 28, 2003.
March 26, 2003, Mohammed was indicted, along with Frazier,
Thomas, and Summers, for bank robbery in violation of 18
U.S.C. § 2113 and conspiracy to commit bank robbery
under 18 U.S.C. § 2. See Indictment, filed
March 26, 2003 (Cr. Doc. 33)(“Indictment”). On
November 21, 2003, Mohammed entered into a Plea Agreement
(Cr. Doc. 106)(“Plea Agreement”) and pled guilty
to Count 1 of a two count Indictment for Bank Robbery in
violation of 18 U.S.C. § 2113(a). See Plea
Agreement at 2. Pursuant to the Plea Agreement, “[t]he
United States has made, and will make, NO AGREEMENT pursuant
to Rule 11(c)(1)(C), Fed. R. Crim. P., that a specific
sentence is the appropriate disposition of this case.”
Plea Agreement at 3.
January 9, 2004, the United States Probation Office
(“USPO”) disclosed its PSR. The USPO concluded
that Mohammed qualified as a Career Offender pursuant to
U.S.S.G. § 4B1.1, because he had two prior qualifying
felony convictions on April 30, 1993, of aggravated battery
and robbery. As a result, Mohammed's adjusted
offense level under the United States Sentencing Guidelines
was 32. See PSR ¶ 39 at 8; U.S.S.G. §
4B1.1(b) (providing a table showing that a Career
Offender's offense level is calculated according to the
offense statutory maximum; bank robbery's maximum
sentence being 20 years pursuant to 18 U.S.C. § 2113
places Defendant's offense level at 32). Mohammed was
given a 3 level reduction to his offense level, because of
his acceptance of responsibility. See PSR, ¶ 40
at 8. Pursuant to U.S.S.G. § 4B1.1(b), Mr.
Mohammed's criminal history category was assessed to be
at a Category VI. See PSR, ¶ 88, at 19. The
sentence range under the Guidelines was 151-188 months.
See PSR ¶ 88, at 19.
February 17, 2004, the Court sentenced Mohammed to 188 months
of imprisonment. See Sentencing Proceedings Before
Judge Browning at 1, filed February 17, 2014 (Cr. Doc.
188)(“Sentencing”). The Court assessed
restitution in the amount of $1, 619.13 and a $100.00 special
penalty assessment. See Sentencing at 2. The Court
also adopted the PSR, wherein the USPO concluded that
Mohammed was a Career Offender. See Sentencing at 1.
On the date of sentencing, Mohammed's counsel filed a
motion to withdraw as counsel. See Motion to
Withdraw at 1, filed February 17, 2014 (Cr. Doc.
176)(“Withdrawal Mot.”). On February 23, 2004,
the Court appointed new appellate counsel, who filed a Notice
of Appeal on February 24, 2004. See CJA Appointment
of and Authority to Pay Court Appointed Counsel at 1, filed
February 23, 2014 (Cr. Doc. 196); Notice of Appeal at 1,
filed February 24, 2017 (Cr. Doc. 177).
appealed his characterization as a Career Offender and argued
that his two prior convictions should have counted as only
one. See United States v. Mohammed, 150 F.App'x
887, 888 (10th Cir. 2005). He also appealed the district
court's mandatory application of the Sentencing
Guidelines and argued it was contrary to United States v.
Booker, 543 U.S. 220 (2005). See United States v.
Mohammed, 150 F. App'x at 888. The United States
Court of Appeals for the Tenth Circuit affirmed
Mohammed's conviction and sentence, and held that his two
prior convictions were separate and thus qualified him as a
Career Offender. 150 F. App'x at 890-93. The Tenth
Circuit also held that because the district court imposed the
high end of the sentencing guidelines even though it could
have sentenced Mohammed anywhere within the range, Mohammed
had failed to meet his burden of showing that the district
would have imposed a lesser sentence under an advisory, as
opposed to mandatory, sentencing scheme. 150 F. App'x at
890-93 (citing United States v. Ambort, 405 F.3d
1109, 1121 (10th Cir.2005)). The Supreme Court denied
certiorari on February 21, 2006. See Mohammed v. United
States, 546 U.S. 1206 (2006).
March 12, 2007, Mr. Mohammed filed his first motion pursuant
to 28 U.S.C. § 2255 pro se. See Mohammed v. United
States, Civ. No. 07-0240 JB/RHS, (D.N.M.)(ECF Doc.
1)(“First § 2255 Mot”). Mr. Mohammed argued
that he was denied effective assistance of counsel during
sentencing, because his trial counsel failed to object to the
length of his sentence imposed pursuant to 18 U.S.C.
§§ 3553 and 3581, see First § 2255
Mot. at 2-6, and that his appellate counsel similarly failed
to raise these issues on appeal. First § 2255 Mot. at 7.
On January 22, 2010, the Honorable Judge Robert Hayes Scott,
Magistrate Judge, issued Proposed Findings and Recommended
Disposition (Doc. 18)(“PFRD”) and concluded that
Mohammed's motion was untimely pursuant to 28 U.S.C.
§ 2255(f) and that he was not entitled to equitable
tolling. On February 28, 2010, the Court adopted Judge
Scott's PFRD and issued an Order of Dismissal.
See Doc. 22.
January 11, 2016, Mohammed sought and was granted
authorization from the Tenth Circuit to file a second or
successive 28 U.S.C. § 2255 motion based on Johnson
v. United States, 135 S.Ct. 2551 (2015). See
Motion for Authorization to File a Second or Successive
Motion to Vacate, Set Aside, or Correct Sentence under 28
U.S.C. § 2255 by a Prisoner in Federal Custody, Appeal
No. 16-2009 (filed Jan. 11, 2016)(Doc.
10334984)(“Second § 2255 Mot.”); In Re
Mohammed, Appeal No. 16-2009 (filed May 6, 2016)(Doc.
01019616107) (Briscoe, Gorsuch, and Bacharach, J.J.,
deciding). In his Second § 2255 Mot., Mohammed argues
that the Court “improperly employed an invalid
conviction of aggravated battery [to support his status as a
Career Offender], which falls under the residual clause, as
being vague and ambiguous.” Second § 2255 Mot.,
(citing United States v. Evans, 576 F.3d 766, 767
(7th Cir. 2009)). The United States responds that
Johnson v. United States's invalidation of the
residual clause in the Armed Career Criminal Act, 18 U.S.C.
§ 924 (“ACCA”), applies retroactively only
to claims based on the ACCA and not on the Career Offender
Guideline under the United States Sentencing Guidelines, and
that any rule extending Johnson v. United States
retroactively to the Guidelines would not meet the standards
the Supreme Court outlined in Teague v. Lane, 489
U.S. 288 (1989), for retroactivity. See Response to
Petitioner Mohammed's Petition Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence at 3-12, filed
July 22, 2016 (Doc. 7)(“Response”). The United
States also argues that even if Johnson v. United
States were to extend retroactively to this case,
Mohammed's prior conviction of New Mexico aggravated
battery qualifies as a crime of violence under the elements
clause of the definition of “crime of violence”
in the Sentencing Guidelines. See Response at 13-18.
In supplemental briefing, Mohammed adds the argument that his
other qualifying prior conviction of robbery is also not a
“crime of violence” under either the enumerated
clause or elements clause under U.S.S.G. § 4B1.2.
Response at 2-6. The United States has not responded to his
March 6, 2017, the Supreme Court issued its ruling in
Beckles v. United States, __ U.S. __, 137 S.Ct. 886
(2017), and held that Johnson v. United States does
not apply to the advisory sentencing guidelines. Accordingly,
the Court issued an order directing the parties to file a
joint statement in light of Beckles v. United
States. See Order Directing the Parties to
Confer and File a Joint Statement in Light of Beckles, filed
on March 13, 2017 (Doc. 21)(“Beckles Order”). The
parties also filed their Joint Statement. See Joint
Statement, filed May 8, 2017 (Doc. 25). The parties also
filed separate supplemental briefing. See Supplemental
Briefing on Impact of Beckles on Motion to Vacate, Set Aside
or Correct Sentence Under § 2255, filed May 8, 2017
(Doc. 24)(“Beckles Supp. Briefing”); Response to
Government's Supplemental Briefing on Impact of Beckles
on Motion to Vacate, Set Aside, Or Correct Sentence under
§ 2255, filed June 7, 2017 (Doc. 28)(“Beckles
Supp. Resp.”). Mohammed contends that Beckles v.
United States, does not extend to sentences imposed
before the Supreme Court's decision in United States
v. Booker, which changed the sentencing guidelines from
being mandatory to advisory. See Joint Statement at
2. Mohammed argues that, unlike the advisory guidelines
discussed at length in Beckles v. United States,
Mohammed argues that Johnson v. United States
applies to the mandatory guidelines sentences that have the
“force and effects of law.” Beckles Supp. Resp.
at 5. The United States contends that Beckles v. United
States wholly resolves Mohammed's case in holding
that Johnson v. United States does not apply to the
Sentencing Guidelines. See Beckles Supp. Briefing at
1. It also argues that, post-Beckles v. United
States, Mohammed's motion is time-barred, because
the Supreme Court has not recognized under Beckles v.
United States the “right not to have a guidelines
range within an otherwise-fixed statutory limits calculated
under an allegedly vague provision.” Beckles Supp.
Briefing at 7.
Court concludes that Johnson v. United States does
not apply to the sentencing guidelines. Even if it did apply,
however, and Mohammed's Motion was timely, Mohammed's
sentence enhancement remains valid because both aggravated
battery and robbery are crimes of violence. His aggravated
battery conviction pursuant to NMSA 1978, § 30-3-5(C) is
a “violent felony” and robbery is a crime of
violence under U.S.S.G. § 4B1.1. Accordingly, the Court
denies Mohammed's Motion.
JOHNSON V. UNITED STATES DOES NOT APPLY TO THE SENTENCING
Johnson v. United States, the Supreme Court
considered whether the ACCA's residual clause violates
the Due Process Clause of the Constitution of the United
States of America. See 135 S.Ct. ...