United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER is before the Court on United States
Magistrate Judge Carmen E. Garza's Proposed Findings
and Recommended Disposition (the “PFRD”),
(CV Doc. 23), filed July 6, 2017; and Petitioner David
Apodaca's Objections to the Magistrate's Proposed
Findings and Recommended Disposition (the
“Objections”), (CV Doc. 26), filed August 21,
2017. In the PFRD, the Magistrate Judge
recommended denying Petitioner's Motion to Correct
Sentence Under 28 U.S.C. § 2255 and 18 U.S.C.
§ 3582(c)(2) (the “Motion”), (CV Doc. 1),
filed June 14, 2016, following the United States Supreme
Court's decision in Beckles v. United States,
137 S.Ct. 886 (2017). (CV Doc. 23 at 8).
parties were notified that written objections to the PFRD
were due within 14 days. Id. Petitioner timely
objected. (CV Doc. 26). Respondent did not object to the PFRD
or respond to Petitioner's Objections, and the time for
doing so has passed. Following a de novo review of
the PFRD, the Objections, and the record, the Court will
overrule Petitioner's Objections, adopt the PFRD, and
deny Petitioner's Motion.
case arises from Petitioner's guilty plea and sentence,
but it has come to involve questions regarding advisory
sentence range calculations, the interplay between precedent
from the Tenth Circuit Court of Appeals and the Supreme
Court, and the Court's understanding of its own
discretion. On September 7, 2007, Petitioner pled guilty
pursuant to a Fed. R. Crim. P. Rule 11(c)(1)(C) plea
agreement to two counts: conspiracy to manufacture,
distribute, and possess with intent to distribute controlled
substances, in violation of 21 U.S.C. § 846, and
possession with intent to distribute more than 500 grams of
methamphetamine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A). (CR Doc. 253 at 2). Petitioner's
pre-sentence report (“PSR”) calculated
Petitioner's advisory United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) range as
292 to 365 months based on Petitioner's adjusted offense
level of 35 and criminal history category VI. (CR Doc. 566 at
2; CV Doc. 21 at 2). The PSR calculated this range based on
the amount of methamphetamine involved, the firearms found at
Petitioner's residence, and Petitioner's role in
directing or managing another, which resulted in an adjusted
offense level of 38, and a three-level reduction for
Petitioner's acceptance of responsibility. (CV Doc. 1 at
also considered whether Petitioner was a “career
offender” under Guidelines § 4B1. Id.
Although the PSR determined that Petitioner was a career
offender, the PSR found that irrelevant because
Petitioner's career offender offense level, 37, was lower
than the adjusted offense level it previously calculated.
Id.; see Guidelines § 4B1.1(b)
(providing “. . . if the offense level for a career
offender from the table in this subsection is greater than
the offense level otherwise applicable, the offense level
from the table in this subsection shall apply.”).
Accordingly, the PSR used an adjusted offense level of 35 and
a range of 292-365 months, rather than the lower offense
level and range under the career offender enhancement.
to the advisory range calculated in the PSR, the parties
stipulated to a 240-month sentence. (CR Doc. 566 at 3).
Importantly, the parties calculated Petitioner's sentence
differently than the PSR. First, based on Guidelines
§§ 1B1.3 and 2D1.1, the plea agreement stated
Petitioner's base offense level was 34. Id. at
4. Like the PSR, the parties then added two levels under
§ 2D1.1(b)(1) for possession of a dangerous weapon and
subtracted three levels under § 3E1.1 because Petitioner
accepted personal responsibility for his criminal conduct,
for an adjusted offense level of 33. Id. at 5;
see (CR Doc. 417 at 4). The plea agreement does not
cite Guidelines § 4B1.1 or mention a career offender
sentencing hearing, the Court asked how the parties arrived
at ¶ 240-month sentence. (CR Doc. 417 at 4). Respondent
explained the discrepancy was based on Respondent not
including the two-level increase for a managing/directing
role adjustment. Id. Petitioner's Guidelines
range based on offense level 33 was 235 to 293 months, and
240 months was within that range. Id. Neither party
mentioned the career offender enhancement or whether it
figured into their calculation. In the end, the Court found
the PSR correctly determined Petitioner's offense level,
Guideline range, and Petitioner's career offender status.
Id. at 10. However, based on its review of the PSR
and the parties' representations, the Court was satisfied
that the stipulated sentence departed from the Guidelines
range for justifiable reasons and accepted the plea
agreement. Id. at 11.
10, 2016, Petitioner filed his Motion, arguing he was
unconstitutionally sentenced as a career offender. (CR Doc.
580; CV Doc. 1 at 1). Petitioner argues that under
Johnson v. United States, 135 S.Ct. 2551 (2015), the
“residual clause” in the definition of
“career offender” is unconstitutionally vague and
that he was deemed a career offender in reliance on the
clause; therefore, he is entitled to be resentenced. (CV Doc.
1 at 6-16). Specifically, Petitioner claims his conviction
for conspiracy to commit escape is not a “crime of
violence” under the Guidelines except under the
residual clause, which Johnson declared
unconstitutionally vague. Id. at 13-16. Petitioner
asks that, upon resentencing, he be granted relief under 18
U.S.C. § 3582(c). Id. at 17; see (CR
March 6, 2017, the Supreme Court decided Beckles v.
United States, holding that Johnson does not
apply to the advisory Guidelines. 137 S.Ct. 886, 890 (2017).
The Supreme Court distinguished the mandatory Guidelines
before its decision in United States v. Booker, 543
U.S. 220 (2005), and the “effectively advisory”
Guidelines post-Booker. Id. at 893-94.
Because the advisory Guidelines “merely guide the
exercise of a court's discretion in choosing an
appropriate sentence, ” the advisory Guidelines are not
subject to vagueness challenges. Id. at 892. The
Beckles court left open the question whether its
decision applied to sentences entered before Booker,
when the Guidelines “fix[ed] the permissible range of
sentences.” Id. at 903 n.4 (Sotomayor, J.,
dissenting). Given Beckles' holding and
Petitioner's reliance on Johnson's
application to the Guidelines, the Court ordered supplemental
briefing to address whether Petitioner's Motion survived
Beckles. (CV Doc. 13).
denies that Beckles is fatal to his Motion. Rather,
Petitioner maintains that “Beckles did not
exempt from vagueness challenges in which the sentencing
court was obligated to apply the career offender
[G]uidelines.” (CV Doc. 18 at 1). According to
Petitioner, Tenth Circuit precedent “required”
district courts to apply career offender enhancements;
district courts were “bound to apply the career
offender guideline and impose a sentence within the
imprisonment range dictated by that guideline.”
Id. at 2, 8. Petitioner argues district courts could
not depart from the career offender enhancement “based
on general policy disagreements with the guidelines, ”
so the Guidelines were not truly advisory. Id. at
9-10. Thus, Petitioner contends, even though he was sentenced
after Booker made the Guidelines advisory,
Beckles does not apply to him. Id.
Magistrate Judge disagreed and recommended denying the
Motion. (CV Doc. 23 at 8). Beckles, the Magistrate
Judge reasoned, stated a bright-line rule: the
post-Booker, advisory Guidelines, including the
career offender enhancement, are not subject to vagueness
challenges. Id. at 7-8; Beckles, 137 S.Ct.
at 892 (“Accordingly, the Guidelines are not subject to
a vagueness challenge under the Due Process Clause. The
residual clause in § 4B1.2(a)(2) is not void for
vagueness.”). The Magistrate Judge found that the
career offender enhancement was not mandatory such that
Beckles did not apply to Petitioner. (CV Doc. 23 at
has timely objected to the PFRD. In his Objections,
Petitioner argues again that “when he was sentenced the
career offender guidelines were mandatory” in the Tenth
Circuit “and necessarily fixed the guideline
imprisonment range;” district courts were
“expected to impose the imprisonment term fixed by the
career offender guidelines.” (CV Doc. 26 at 1). That
Booker made the Guidelines advisory “does not
matter, ” Petitioner states, because the Tenth Circuit
treated the career offender enhancement as mandatory.
Id. at 2. Petitioner relies on the holdings and
histories of five cases: Gall v. U.S., 552 U.S. 38
(2007); Kimbrough v. U.S., 552 U.S. 85 (2007);
U.S. v. Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007),
judgement vacated and remanded by Garcia-Lara v.
U.S., 553 U.S. 1016 (2008); U.S v. Friedman,
554 F.3d 1301 (10th Cir. 2009); and U.S. v. Vasquez,
558 F.3d 1224 (11th Cir. 2009), judgement vacated and
remanded by Vazquez v. U.S., 558 U.S. 1144 (2010).
Id. at 2-6. Petitioner contends these cases prove
that when he was sentenced “the career offender
guideline imprisonment range fixed the imprisonment range the
court was expected to impose.” Id. at 6.
further explained below, the Court agrees with the Magistrate
Judge that Beckles bars Petitioner's claim that
the Guidelines residual clause is unconstitutionally vague.
Furthermore, the cases Petitioner relies on do not show that
the Guidelines were effectively mandatory in the Tenth
Circuit post-Booker. Finally, even though the Tenth
Circuit remanded some cases for resentencing following
intervening authority from the Supreme Court, Petitioner is
not entitled to resentencing under the facts and
circumstances in this case.