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United States v. Manzanares

United States District Court, D. New Mexico

December 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ARCHIE MANZANARES, Defendant.

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          WILLIAM P. JOHNSON, UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition [CR Doc. 53; CV Doc. 21] (“PF&RD”) issued September 6, 2017. On reference by the undersigned, [CV Doc. 2], the Honorable Stephan M. Vidmar, United States Magistrate Judge, [1] recommended denying Defendant Archie Manzanares's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 [CR Doc. 35; CV Doc. 1]. Manzanares objected to the PF&RD on November 6, 2017. [CR Doc. 57; CV Doc. 25]. On de novo review of the portions of the PF&RD to which Manzanares objects, the Court will overrule the objections, adopt the PF&RD, deny Manzanares's motion, and dismiss case number 16-cv-0599 WJ/SMV with prejudice.

         I. Background

         On June 27, 2012, Manzanares was charged via indictment with being a felon in possession of a firearm/ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1). Presentence Report (“PSR”) at 4. On April 1, 2013, he was charged via information with possession of heroin, in violation of 21 U.S.C. § 844(a). Id. He pleaded guilty to both charges on April 1, 2013. Id. The plea bargain Manzanares negotiated with the government hinged on whether he qualified as an armed career criminal under the Armed Career Criminal Act (“ACCA”). If he was found to be an armed career criminal, Manzanares would stipulate to a sentence of 180 months. Id. If he was found not to be an armed career criminal, Manzanares would be permitted to withdraw from the plea. Id.

         United States Probation and Pretrial Services prepared his PSR. The PSR provided that Manzanares qualified as an armed career criminal under the ACCA because he had at least three prior convictions for violent felonies or serious drug offenses. Id. at 7. In applying the ACCA enhancement, the PSR did not list which prior felony convictions constituted the “violent felonies” or “serious drug offenses.” Id. Elsewhere in the PSR, however, Manzanares's prior felony convictions are listed. Id. at 5. Among them are aggravated assault with a deadly weapon, aggravated battery, and armed robbery, all in New Mexico. Id. Likewise, the PSR lists his entire criminal history in a separate section, though it does not indicate which of the offenses were felonies (as opposed to misdemeanors), or which were relied on as predicate offenses in applying the ACCA enhancement. See Id. at 8-12.

         With the armed career criminal enhancement, Manzanares's offense level was 34. Id. at 7. Based on a downward adjustment for acceptance of responsibility, his total offense level was 31, with a criminal history category of VI and a guideline imprisonment range of 188-235 months. Id. at 8, 19. On July 2, 2013, the Court held a sentencing hearing. See [CR Doc. 33]. Neither party objected to the PSR. See Id. at 3. The Court accepted the plea agreement and found that Manzanares qualified as an armed career criminal under the ACCA. Id. at 5. The Court sentenced him to 180 months' imprisonment pursuant to the plea agreement. Id. Manzanares did not appeal his sentence. The instant case is his first motion under § 2255.

         II. Motions under § 2255 and Johnson II

         Pursuant to 28 U.S.C. § 2255(a), a “prisoner in custody” pursuant to a federal conviction may “move the court . . . to vacate, set aside or correct the sentence” if it “was imposed in violation of the Constitution or laws of the United States.”

         In Johnson v. United States (“Johnson II”), 135 S.Ct. 2551, 2557 (2015), the Supreme Court held that the so-called “residual clause” of the definition of “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. The ACCA defined “violent felony” as follows:

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; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. (emphasis added). The closing words of this definition, italicized above, have come to be known as the “residual clause.” Subsection (i) is referred to as the “force clause.”

         The Court explained that the residual clause left “grave uncertainty” about “deciding what kind of conduct the ‘ordinary case' of a crime involves.” Johnson II, 135 S.Ct. at 2557. That is, the residual clause “denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges” because it “tie[d] the judicial assessment of risk to a judicially imagined ‘ordinary case' of a crime, not to real-world facts or statutory elements.” Id. Second, the ACCA's residual clause left “uncertainty about how much risk it takes for a crime to qualify as a violent felony.” Id. at 2558. By combining these two indeterminate inquiries, the Court held, “the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id. On that ground it held the residual clause void for vagueness. Id.

         Soon thereafter, the Court determined that the ruling in Johnson II was substantive (as opposed to procedural) and, therefore, had “retroactive effect in cases on collateral review.” Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Accordingly, Welch opened the door for individuals sentenced under the residual clause of the ACCA's violent-felony definition to move to vacate their sentences as unconstitutional under § 2255.

         III. Judge Vidmar found that Manzanares's prior convictions qualified as violent felonies irrespective of the now-invalidated residual clause and recommended that his motion be denied.

         Manzanares had at least three prior felony convictions that were determined to qualify as violent felonies under § 924(e)(2)(B) of the ACCA, triggering that provision's sentencing enhancement.[2] See PSR at 5, 7; [CR Doc. 2] at 1. Manzanares challenged the application of the ACCA sentencing enhancement. He argued that the government had waived the right to argue that certain of his prior convictions qualified as violent felonies under those portions of § 924(e)(2)(B) that remained intact in the wake of Johnson II. [Doc. 1][3] at 6-9. In the alternative, Manzanares contended that his prior New Mexico convictions for aggravated assault with a deadly weapon, aggravated battery, and armed robbery[4] could have qualified as violent felonies (and thus, counted toward his armed career criminal designation) only under the now-invalidated residual clause. [Doc. 1] at 9-24. He argued he was therefore entitled to be resentenced without application of the ACCA enhancement.

         The government responded that it had not waived the right to argue that Manzanares's prior felony convictions qualified under the still-extant clauses of § 924(e)(2)(B). [Doc. 10] at 14-15. It contended that because Manzanares did not object to the PSR or imposition of the ACCA enhancement at sentencing, “the Court must assume that it relied upon all” of his qualifying prior convictions. Id. at 15 (emphasis added). The government further argued that each of the three prior felony convictions qualified under the force clause of the ACCA. Id. at 3- 14.

         Judge Vidmar found that (1) the government had not waived the right to argue that Manzanares's prior convictions qualified under those portions of § 924(e)(2)(B) that survived Johnson II, and (2) Manzanares's prior convictions for New Mexico aggravated assault with a deadly weapon, aggravated battery, and armed robbery qualified as violent felonies, irrespective of the unconstitutional residual clause. [Doc. 21]. Therefore, he recommended that Manzanares not be resentenced and that his § 2255 motion be denied.

         A. Judge Vidmar found that the United States had not waived the right to argue that Manzanares's prior convictions qualified as violent felonies under the force clause of the ACCA.

         Judge Vidmar first addressed the threshold issue raised by Manzanares-whether the government had waived the right to argue that certain of his prior convictions still qualified as violent felonies under § 924(e)(2)(B) in the wake of Johnson II. [Doc. 21] at 6-10. Neither the PSR nor the Court at sentencing expressly stated which of Manzanares's prior felony convictions qualified as violent felonies, or which clause of § 924(e)(2)(B) the convictions fell under (i.e., the so-called “force clause, ” the “enumerated clause, ” or the “residual clause”). Id. at 6. Manzanares contended that, by failing to object at the time of his sentencing, the government waived the right to later identify which prior convictions were qualifying ACCA predicate offenses. Id. Manzanares argued it would be “fundamentally unfair” to allow the government to “swap out unidentified ACCA predicate offenses” on collateral review of his ACCA enhancement. Id.

         Judge Vidmar found that Manzanares had cited no case law in support of his argument that the government could not rely on prior convictions not specifically referenced as ACCA predicates in the PSR or at sentencing. The case from the Eleventh Circuit on which Manzanares relied actually contravened his position. Id. at 6-7 (citing McCarthan v. Warden, 811 F.3d 1237 (11th Cir. 2016), rev'd en banc on other grounds sub nom. McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (2017)). The court in McCarthan had noted that, in general, defendants are “entitled to know the specific convictions on which an ACCA enhancement is recommended and imposed.” Id. at 7-8 (quoting McCarthan, 811 F.3d at 1253). But where the defendant had failed to object to the PSR or at sentencing, the court reviewing his § 2254 petition “must . . . assume that the district court relied on all of [the defendant's] ACCA-qualifying convictions in imposing” his ACCA enhancement. Id. at 8 (quoting McCarthan, 811 F.3d at 1254). McCarthan put the onus on the defendant, not the government, to object to the PSR or at sentencing where the ACCA enhancement was applied and the qualifying prior convictions not explicitly identified. Absent any such objection, the reviewing court must presume that the sentencing court relied on all ACCA-qualifying convictions.[5] Judge Vidmar found that a recent decision from this District further compelled the finding that the government had not waived the right to rely on Manzanares's prior convictions. Id. at 9-10 (citing United States v. Garcia, No. 16-cv-0240 JB/LAM, 2017 WL 2271421, at *19- 21 (D.N.M. Jan. 31, 2017) (“There is no dispute that [the defendant] has a robbery conviction, and the conviction's existence cannot be waived. The Court can consider it. It does not disappear. What [the sentencing judge] did with it, or did not do with it, ten years ago is irrelevant.”)). The government was not foreclosed, Judge Vidmar found, from arguing that any of the qualifying prior felony convictions listed in Manzanares's PSR still qualified as ACCA predicate offenses even absent the unconstitutional residual clause.

         B. Judge Vidmar found that Manzanares's predicate offenses qualified as violent felonies under the force clause of the ACCA.

         1. The Force Clause of § 924(e)(2)(B)

         The “force clause” of § 924(e)(2)(B) provides that an underlying conviction is a violent felony where it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” § 924(e)(2)(B)(i). To determine whether a prior conviction qualifies as a violent felony under the force clause, courts compare § 924(e)(2)(B)(i) with the elements of the underlying statute of conviction.

         Specifically, courts must compare the force required for a conviction of the predicate offense against the physical force requirement of § 924(e)(2)(B)(i). Courts must determine whether the least culpable conduct criminalized by the underlying offense-e.g., the least amount of force required to sustain a conviction for New Mexico aggravated assault with a deadly weapon-meets the physical force requirement of the force clause. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013) (“Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized, and then determine whether even those acts are encompassed by [the force clause].” (last set of brackets added) (internal quotation marks omitted)). This inquiry requires application of both federal and state law. Federal law defines the meaning of the phrase “use, attempted use, or threatened use of physical force” in § 924(e)(2)(B)(i). United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017). And state law defines the substantive elements of the crime of conviction. Id.; United States v. Rivera-Oros, 590 F.3d 1123, 1126 (10th Cir. 2009). In discerning the level of force that gives rise to conviction under the predicate offense, there must be a “realistic probability, not a theoretical possibility, ” that the statute would apply to the conduct contemplated. Rivera-Oros, 590 F.3d at 1133 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

         In undertaking this comparison, courts generally apply the “categorical approach.” Descamps v. United States, 133 S.Ct. 2276, 2283 (2013). That is, courts look only to the statutory definition of the predicate offense, while ignoring the particular facts of the case. Id. If the statute of conviction “sweeps more broadly” than the force clause (i.e., if conviction could result without the use of “physical force, ” as federal law defines that term), the prior conviction cannot qualify as an ACCA predicate, irrespective of whether the defendant's actual conduct in committing the crime involved the use of physical force. See id.

         Some statutes, however, have a more complicated structure and require a slightly different approach. A single statute may be “divisible”-it may list elements in the alternative- and thereby define multiple crimes. Id. at 2281. When a statute defines multiple crimes by listing alternative elements, courts undertake the “modified categorical approach” to determine which of the multiple alternative elements listed in the statute applied to convict the defendant. Id. Under the modified categorical approach, a sentencing court looks to the record of conviction (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of. The court may then compare the physical force required for conviction under that crime, as the categorical approach commands, with the physical force requirement of the force clause. See id.

         The Supreme Court has provided guidance for determining whether a statute is indivisible or divisible and, thus, whether to implement the modified categorical approach first or proceed directly to the categorical approach. Mathis v. United States, 136 S.Ct. 2243, 2256-57 (2016). The central question is whether the statute lists multiple elements disjunctively, thereby creating multiple different crimes (i.e., a divisible statute, triggering the modified categorical approach), or whether it enumerates various factual means of committing a single element (i.e., an indivisible statute, requiring the categorical approach). Id. at 2249-50. If a state court decision “definitively answers the question, ” then a sentencing judge “need only follow what it says.” Id. at 2256. Or, “the statute on its face may resolve the issue.” Id. If statutory alternatives carry different punishments, then they must be elements (and, thus, the statute divisible, triggering the modified categorical approach). Id. (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)). “Conversely, if a statutory list is drafted to offer ‘illustrative examples, ' then it includes only a crime's means of commission.” Id.

         2. Manzanares's Prior Convictions

         In Johnson v. United States (“Johnson I”), 559 U.S. 133, 138-40 (2010), the Supreme Court interpreted “physical force” under the force clause of § 924(e)(2)(B) to mean “violent force-that is, force capable of causing physical pain or injury to another person.” Id. at 140. The Court offered this interpretation in the course of holding that the force required for conviction under a state battery statute-“any intentional physical contact, no matter how slight”-was less than the ACCA's physical force requirement. Id. at 138 (internal quotation marks omitted). In other words, “physical force” under the force clause means more than de minimis touching. See Harris, 844 F.3d at 1264-65 (“It is important to keep in mind why it was necessary for the Court [in Johnson I] to use the language” of “violent force” and “strong physical force”-namely, because the Court “was rejecting the government's argument that physical force means . . . . even the slightest offensive touching.” (internal quotation marks omitted)).

         Judge Vidmar considered whether each of Manzanares's prior qualifying convictions required the degree of force necessary to satisfy the “physical force” requirement of § 924(e)(2)(B)(i).[6] He found that they did.

         Aggravated Assault ...


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