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United States v. Mohammed

United States District Court, D. New Mexico

September 30, 2017

UNITED STATES OF AMERICA Plaintiff/Respondent,
OMAR MOHAMMED, Defendant/Petitioner. CR 03-569 JB

          Presiliano Torrez Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorney for the Plaintiff

          Diego E. Esquibel The Barnett Law Firm Albuquerque, New Mexico Attorney for the Defendant


         THIS 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.


         The 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.

         Albuquerque 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.


         On 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.

         On 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.[1] 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.

         On 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).

         Mohammed 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).

         On 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.

         On 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)).[2] 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 supplemental brief.

         On 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.


         The 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.


         In 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. ...

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