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United States v. Dubois

United States District Court, D. New Mexico

November 29, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
HERMAN DUBOIS, Defendant/Movant.

          PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION

          Laura Fashing United States Magistrate Judge

         THIS MATTER comes before the Court on Herman Dubois' Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255. Doc. 48.[1] The Honorable Martha Vázquez referred this case to me to recommend to the Court an ultimate disposition of the case. No. CIV 16-0630 MV/LF, Doc. 2. Having reviewed the submissions of the parties and the relevant law, I recommend that the Court deny Dubois' motion.

         I. Background Facts and Procedural Posture

         On December 20, 2010, Dubois pled guilty to an indictment that charged him with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See Docs. 2, 38, 40. The probation officer who prepared Dubois' presentence report (“PSR”) determined that Dubois' base offense level was 24 under USSG[2] § 2K2.1(a)(2) because he committed the offense after having sustained at least two prior felonies that were crimes of violence. PSR ¶ 19. Dubois received a two-level enhancement pursuant to USSG § 2K2.1(b)(4)(A) because the firearm was stolen. PSR ¶ 20. He received a four-level enhancement pursuant to USSG § 2K2.1(b)(6) because he possessed the firearm in connection with another felony offense, specifically, receiving stolen property over $500. PSR ¶ 21. He received a two-level enhancement pursuant to USSG § 3C1.1 for obstruction of justice because he tried to convince his girlfriend to claim that the firearm was hers. PSR ¶ 24; see also Doc. 40 at 5. Thus, without the armed career criminal enhancement, Dubois' adjusted offense level would have been 32. PSR ¶ 25.

         However, because Dubois had three prior violent felony convictions, the probation officer determined that Dubois was subject to an enhanced sentence as an armed career criminal under USSG § 4B1.4 and 18 U.S.C. § 924(e). PSR ¶ 26. As a result, Dubois' offense level became 33. Id. He received a three-level reduction for acceptance of responsibility under USSG § 3E1.1. PSR ¶ 27. His total offense level was 30, and his history category was IV, which resulted in an advisory guideline sentencing range of 135 to 168 months in prison. PSR ¶¶ 27, 36, 91. But because Dubois was considered an armed career criminal under 18 U.S.C. § 924(e)(1), he was subject to a mandatory minimum sentence of 180 months in prison, and his guideline imprisonment sentence therefore was 180 months. PSR ¶ 91.

         Neither party objected to the PSR. See Doc. 45. Pursuant to the plea agreement, the government filed a motion for downward departure, which the Court granted. See Docs. 43, 44. On May 12, 2011, the Court sentenced Dubois to 144 months in prison. Docs. 45, 46. The Court entered its judgment on May 16, 2011. See Doc. 46.

         On June 22, 2016, Dubois filed a Motion to Vacate and Correct Sentence Pursuant to 28 U.S.C. § 2255 (and Johnson v. United States). Doc. 48. The government filed its response on October 31, 2016, Doc. 59, and Dubois filed his reply on February 3, 2017, Doc. 61. Pursuant to the Court's order, the parties filed supplemental briefs on November 13, 2017. Docs. 67, 71, 72.

         II. Dubois' Claims and the Government's Response

         Dubois argues that his prior robbery conviction and his four prior burglary convictions under New Mexico law no longer qualify as violent felonies under the Armed Career Criminal Act (ACCA). Doc. 48 at 4-15. He argues that because the Supreme Court held in Johnson that the ACCA's “residual clause” is unconstitutionally vague, he no longer has three prior felony convictions that qualify as violent felonies under either the “elements clause” or the “enumerated crimes clause” of the ACCA.[3] See id. In response, the government does not rely on Dubois' prior robbery conviction. Instead, the government argues that Dubois has at least three prior burglary convictions that still qualify as violent felonies under the ACCA. Doc. 59 at 2-13.

         On October 10, 2017, I directed the parties to file simultaneous supplemental briefs to address the Tenth Circuit's decision in United States v. Snyder, 871 F.3d 1122 (10th Cir. 2017). Doc. 67. In Snyder, the Tenth Circuit held that “it may be possible to determine that a sentencing court did not rely on the residual clause-even when the sentencing record alone is unclear-by looking to the relevant background legal environment[4] at the time of sentencing.” Id. (quoting United States v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017)). The court further held that Snyder was not entitled to relief because it was clear, based on the relevant legal background, that “there would have been little dispute at the time of Snyder's sentencing that his two Wyoming burglary convictions involving occupied structures fell within the scope of the ACCA's enumerated crimes clause”-not the residual clause. Id. I asked the parties to address the question of whether, based on the relevant legal background in place when Dubois was sentenced, the Court could determine that the he was not sentenced using the ACCA's residual clause. See Doc. 67.

         The parties filed their supplemental briefs on November 13 and 14, 2017. Docs. 71, 72. In his supplemental brief, Dubois urges the Court to limit Snyder to its facts and refuse to extend its reasoning to his situation because it would perpetuate a misapplication of the law. See Doc. 71. The government argues that, under Snyder, the Court can consider the law in effect when Dubois was sentenced, and that binding precedent at that time established that his prior burglary convictions constituted violent felonies. Doc. 72. Thus, the government urges the Court to conclude that the sentencing judge relied on the enumerated crimes clause in determining that Dubois qualified for the ACCA. See Id. at 5.

         Without considering Snyder, I find that Dubois' prior residential burglary convictions are violent felonies under the ACCA, but I am not convinced that his robbery conviction and his aggravated burglary convictions still are violent felonies. However, considering the relevant legal background when Dubois was sentenced and the record of his sentencing, I find that the Court relied on Dubois' burglary convictions and sentenced Dubois under the enumerated crimes clause of the ACCA, not the residual clause. Dubois therefore is not entitled to relief. I recommend that the Court deny his motion.

         III. Discussion

         A. The Supreme Court's Decision in Johnson II.

         The ACCA provides, in pertinent part, that “[i]n the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony . . . committed on occasions different from one another, such person shall be . . . imprisoned not less than fifteen years . . . .” 18 U.S.C. § 924(e)(1). “[T]he term ‘violent felony' means any crime punishable by imprisonment for a term exceeding one year . . . that-(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the “elements clause”]; or (ii) is burglary, arson, or extortion, involves use of explosives [the “enumerated crimes clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the “residual clause”] . . . .” 18 U.S.C. § 924(e)(2)(B). In Johnson v. United States, 135 S.Ct. 2551, 2563 (2015), the Supreme Court struck down the residual clause as unconstitutionally vague, but it left intact the elements clause and the enumerated crimes clause. The following year the Court held that Johnson announced a substantive rule that applied retroactively on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Thus, the issue before the Court in this case is whether Dubois was sentenced under the residual clause of the ACCA. If he was not, he is not entitled to relief under Johnson. Snyder, 871 F.3d at 1130.

         Dubois has five prior felony convictions that potentially qualify as violent felonies under the ACCA. See PSR ¶ 26; Doc. 48 at 4-15; Doc. 59 at 1-13 & Exhs. 1-3. They are robbery, two convictions for burglary of a dwelling house, and two convictions for aggravated burglary (armed after entering), all under New Mexico law. See PSR ¶¶ 26, 30, 32, 33. For the robbery conviction to qualify as a violent felony, it must satisfy the elements clause of the ACCA. See Doc. 48 at 4-13. For the burglary convictions to qualify as violent felonies, they must constitute generic burglary under Taylor v. United States, 495 U.S. 575, 599 (1990). See Doc. 48 at 13-15; Doc. 59 at 2-13. The Court must apply the “categorical approach” to determine whether a prior conviction falls within the ACCA's elements clause or the enumerated crimes clause. Descamps v. United States, 133 S.Ct. 2276, 2283 (2013); Taylor, 495 U.S. at 599-602. To further complicate matters, the Tenth Circuit's recent decision in Snyder, 871 F.3d 1122, permits the Court to examine the state of the law at the time Anzures was sentenced to determine whether it's clear that the Court did not rely on the residual clause in sentencing him.

         B. Whether Robbery Under New Mexico Law Qualifies as a Violent Felony Under the ACCA is Unclear; the Court Should Follow its Prior Decision Finding that Robbery is not a Violent Felony.

         To determine whether a crime falls within the elements clause, the categorical approach requires that the Court look only to the elements of the statute under which the defendant was convicted, not at the facts underlying the prior conviction. See Mathis v. United States, 136 S.Ct. 2243, 2253 (2016); Descamps, 133 S.Ct. at 2283. If the “least of the acts criminalized” by the statute do not have as an element the actual, attempted, or threatened use of violent force against another person, then the defendant's conviction under that statute is not a violent felony within the meaning of the elements clause. Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (internal quotation and bracket omitted); 18 U.S.C. § 924(e)(2)(B)(i). Thus, when applying the categorical approach, the Court must identify the least culpable conduct prohibited by the statute of conviction and presume that the defendant's conviction rested on nothing more than this conduct. Moncrieffe, 569 U.S. at 191. To identify the least culpable conduct, the Court looks to how state courts interpret the statute. See United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017) (“state law defines the substantive elements of the crime of conviction”). As part of this step, the Court must analyze “the version of state law that the defendant was actually convicted of violating.” McNeill v. United States, 563 U.S. 816, 821 (2011).

         The Supreme Court held in an earlier Johnson case-Johnson v. United States, 559 U.S. 133, 140 (2010)[5]-that the term “physical force” as used in the elements clause of the ACCA “means violent force-that is, force capable of causing physical pain or injury to another person.” (Emphasis in original.) Nonetheless, the force required to satisfy that element need not be sufficient to cause serious injury-it “might consist . . . of only that degree of force necessary to inflict pain-a slap in the face, for example.” Id. at 143. Therefore, in evaluating whether Dubois' prior robbery conviction under New Mexico law constitutes a violent felony under the ACCA, the Court first must consider whether the state statute that he violated necessarily proscribes conduct that “has as an element the use, attempted use, or threatened use of” violent force against the person of another. If so, it is categorically a “violent felony” under the elements clause of the ACCA.

         If, however, the statutory definition of robbery under New Mexico law is broader than the ACCA's definition of “violent felony, ” and if the statute is “divisible, ” the Court then will apply what is known as a “modified-categorical approach.” United States v. Ramon Silva, 608 F.3d 663, 669 (10th Cir. 2010); see also Mathis, 136 S.Ct. at 2249, 2256. Under this approach, the Court should consult ‚Äúcharging documents and documents of conviction to determine whether the defendant in a ...


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