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United States v. Henry

United States District Court, D. New Mexico

December 31, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
DAVID EMANUEL HENRY, Defendant/Movant.

          Zachary A. Ives Garcia Ives Nowara Albuquerque, New Mexico Attorneys for the Petitioner/Defendant

          James Tierney Acting United States Attorney Paige Messec Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Respondent/Plaintiff

          MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED RECOMMENDED DISPOSITION AND OVERRULING THE DEFENDANT'S OBJECTIONS

         THIS MATTER comes before the Court on the Defendant's Amended Motion of David Henry to Vacate Sentence Pursuant to 28 U.S.C. § 2255, filed June 24, 2016 (CIV Doc. 9; CR Doc. 55)(“Amended Motion to Vacate”); the Honorable Lourdes Martinez, United States Magistrate Judge's Proposed Findings and Recommended Disposition, filed April 11, 2017 (CIV Doc. 24; CR Doc. 70)(“PFRD”), in which Magistrate Judge Martinez recommends denying the Amended Motion of David Henry to Vacate Sentence Pursuant to 28 U.S.C. § 2255 and dismissing the matter with prejudice; and Defendant's David Henry's Objections to Proposed Findings and Recommended Disposition of United States Magistrate Judge, filed April 25, 2017 (CIV Doc. 25; CR Doc. 71)(“Objections”).

         The Court has conducted a de novo review of those portions of Judge Martinez's PFRD to which Henry objects, and concludes that his Objections lack a sound basis in the applicable law and the relevant facts. The primary issue is whether Henry's past conviction for second-degree robbery in the United States Virgin Islands, see 14 V.I.C. § 1863, qualifies as a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), and was, as a result, properly used as one of three predicates to impose an enhanced sentence. The Court concludes that Henry's conviction for second-degree robbery in the Virgin Islands is a violent felony under the ACCA, and the Court can consider Henry's robbery conviction as an ACCA predicate felony. Accordingly, the Court will overrule Henry's Objections, adopt Judge Martinez's PFRD, deny Henry's motion pursuant to 28 U.S.C. § 2255, and dismiss the matter with prejudice.

         PROCEDURAL BACKGROUND

         On October 13, 2011, a federal grand jury indicted charging Henry with being a felon in possession of a firearm, contrary to 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See Indictment at 1, filed October 13, 2011 (Doc. 13). The Indictment listed three prior felonies as the basis for the offense, including Henry's convictions in New Mexico's Second Judicial District for false imprisonment, aggravated battery against a household member, and trafficking of a controlled substance. See Indictment at 1. On April 26, 2011, Henry pled guilty to the charge and executed a plea agreement. See Plea Agreement, filed April 26, 2012 (Doc. 34).

         As part of the Plea Agreement, Henry admitted that, in September of 2011, he “unlawfully and knowingly possess[ed]. . . a Kel-Tec, model P3AT, .380 caliber pistol.” Plea Agreement ¶ 7(a), at 3. He also acknowledged the firearm was fully functional, that he had committed the predicate offenses that the Indictment referenced, and that “as a convicted felon . . . [he] was not allowed to possess firearms.” Plea Agreement ¶ 7(a)-(c), at 3-4. In return, the Plaintiff United States of America stipulated that Henry was entitled to a reduction under the United States Sentencing Guidelines for his acceptance of responsibility, see Plea Agreement ¶ 9(a), at 4-5, and “that a sentence at the low end of the guideline range is appropriate in this case, ” Plea Agreement at 34, ¶ 9(d). The Honorable Alan Torgerson, United States Magistrate Judge, accepted the plea, and the matter was set for sentencing. See Plea Minute Sheet, filed April 26, 2012 (Doc. 35); Notice of Sentencing Hearing, dated April 27, 2012 (Doc. 36).

         The United States Probation Office prepared a Presentence Report in advance of sentencing. See Presentence Report, filed August 31, 2016 (CIV Doc. 14-1; CR Doc. 51-1) (“PSR”). The PSR identified one ACCA serious drug offense and two ACCA violent felonies that USPO concluded triggered an enhancement under the ACCA: Henry's convictions for (i) drug trafficking as listed in the Indictment; (ii) aggravated battery against a household member as listed the indictment; and (iii) second-degree robbery from the Virgin Islands. See PSR ¶ 24, at 7. On July 25, 2012, the Court adopted the PSR and sentenced Henry to 188 months' incarceration, three years supervised release, and participation in a mental health and substance abuse program. See Sentencing Minute Sheet, filed July 25, 2012 (CR Doc. 38); Judgment in Criminal Case, filed July 25, 2012 (CR Doc. 39). Henry did not file an appeal.

         On September 5, 2012, Henry mounted his first challenge under 28 U.S.C. § 2255. See Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed September 5, 2012 (CR Doc. 42)(“Motion to Vacate”). Among other things, Henry alleges his attorney did not secure a 3-level reduction under the Guidelines as the United States agreed, and that he should have received a sentence at the low end of the Guidelines. See Motion to Vacate at 5-7. Henry contends that he did not raise these grounds in a direct appeal, because he was under the influence of medication at that time. See Motion to Vacate at 5-10. The Court denied relief on October 29, 2012. See Memorandum Opinion and Order at 1, filed October 29, 2012 (CR Doc. 44)(“Motion to Vacate MOO”). The Court determined that Henry's sentence included the 3-level reduction; 188 months was at the low-end of the sentencing range; the PSR discussed his criminal background extensively; and he fully understood the plea agreement that he entered. See Motion to Vacate MOO at 2-3. The Court also declined to issue a certificate of appealability. See Motion to Vacate MOO at 3.

         Following the Supreme Court of the United States' invalidation of the ACCA's “residual clause” in Johnson v. United States, 135 S.Ct. 2551, 2563 (2015)(“Johnson II”), Henry again moves for relief under Section 2255. David Henry Letter (dated April 20, 2016), filed April 25, 2016 (CIV Doc. 1; CR Doc. 46). The Court referred the matter to Judge Martinez. See Order of Reference Relating to Prisoner Cases at 1, filed June 6, 2016 (CIV Doc. 9, CR. Doc. 54). The Court also appointed counsel, who filed the Amended Motion to Vacate to address the deficiencies that the Court ordered Henry to correct, see Order to Cure Deficiency at 1-2, filed May 5, 2016 (CIV Doc. 2; CR Doc. 47), including obtaining approval from the United States Court of Appeals for the Tenth Circuit to file a successive § 2255 motion, See Order at 1-2, filed May 27, 2016 (CIV Doc. 7; CR Doc. 48). As is relevant here, [1] Henry argues that his conviction for second-degree robbery in the Virgin Islands no longer qualifies as one of the three violent felonies necessary for an ACCA enhancement, because it is premised on the “residual clause” that the Supreme Court held unconstitutional. See Amended Motion to Vacate at 6-10.

         In response, the United States agrees that the Court should resentence Henry, because his “conviction for second-degree robbery does not require the use of violent force” and, as a result, does not satisfy the ACCA's “force clause, ” the only other applicable ACCA provision that would permit enhancement after Johnson II. United States' Response to Motion to Vacate Sentence Under 28 U.S.C. § 2255 at 1-2, filed August 4, 2016 (CIV Doc. 11; CR Doc. 58). Henry's reply urges the Court to immediately resentence him; absent the three qualifying ACCA predicates, he has already served more than the Guidelines range's low end. See David Henry's Reply to United States' Response to Mr. Henry's Motion to Vacate Sentence Under 28 U.S.C. § 2255 at 1-2, filed August 5, 2016 (CIV Doc. 12; CR Doc. 59). After briefing was complete, however, the USPO submitted a memorandum to the Court explaining that it had reviewed Henry's second-degree robbery conviction and, notwithstanding Johnson II, concluded that the offense remained a violent felony under the force clause. PSR Memorandum at 1, filed August 31, 2016 (CIV Doc. 14; CR Doc. 56-1).

         As a result of the competing views, Magistrate Judge Martinez ordered supplemental briefing on: (i) “whether . . . [the United States] still maintains that Defendant's Virgin Islands Second Degree Robbery conviction is not a valid predicate conviction under the ACCA”; and (ii) “[w]hether . . . [the USPO] still maintains its position that Defendant's Virgin Islands Second Degree Robbery conviction is a valid predicate conviction under the ACCA.” Order for Supplemental Briefing at 5-6, filed November 10, 2016 (CIV Doc. 15; CR Doc. 61).[2] In its brief, the United States changes its position: “With sincere apologies for changing course midway, ” the United States asserted that it “now believes . . . Henry has failed to meet his burden to establish that his conviction for second-degree robbery in the Virgin Islands is not a ‘violent felony' under the Armed Career Criminal Act.” Supplemental Briefing of the United States at 1-2, filed November 25, 2016 (CIV Doc. 18; CR Doc. 64)(“Sup. Briefing”). In response, Henry reiterates his position that “[t]he amount or degree of force requisite to robbery [in the Virgin Islands] is such force as is actually sufficient to overcome the victim's resistance”; and the “degree of violence is immaterial as an element of the crime” and may include “any force, no matter how slight.” David Henry's Response to United States' Notice of Supplemental Authority at 3, filed January 20, 2017 (CIV Doc. 21; CR Doc. 67)(“Supp. Response”)(citations omitted). Henry concluded that, because his robbery conviction falls short of the “violent force” the Supreme Court requires, see Johnson v. United States, 559 U.S. 133, 134 (2010) (“Johnson I”), “[h]e is not subject to [the ACCA's] 15-year mandatory minimum sentence, ” Supp. Response at 8.

         On January 19, 2017, the United States alerted the Court to United States v. Harris, 844 F.3d 1260 (10th Cir. 2017). See Notice of Supplemental Authority at 1, filed January 19, 2017 (CIV Doc. 22; CR Doc. 68). Under that case, the United States argues, robbery statutes that track the common law satisfy Johnson I's violent-force requirement. See Notice of Supplemental Authority at 1-2. The United States further asserts that, because second-degree robbery in the Virgin Islands is a crime of violence, United States v. Harris compels the conclusion that Henry's conviction is a violent felony under the ACCA. See Notice of Supplemental Authority at 2. Henry disagrees with the Government in a subsequent response. See David Henry's Response to United States' Notice of Supplemental Authority at 1, filed January 20, 2017 (CIV Doc. 23; CR Doc. 69)(“Supp. Response II”). He argues that a Colorado Supreme Court decision holding that robbery under that state's jurisprudence amounted to a “violent taking” underpinned United States v. Harris. Supp. Response II at 1-2. Henry submits that, because there is no such analog in the Virgin Islands, United States v. Harris does not alter this case's analysis. See Supp. Response II at 1-2.

         Magistrate Judge Martinez issued her PFRD on April 11, 2017, agreeing with the United States that United States v. Harris controlled and required denying Henry's Amended Motion to Vacate. See PFRD at 10-11. Magistrate Judge Martinez reasoned that the Virgin Islands has not departed from the common-law offense of robbery and that second-degree robbery requires the forcible taking of property much like the Colorado statute, which was held to require violence.[3]See PFRD at 10-11. Henry timely objected to Judge Martinez's PFRD. See Objections at 1.

         STANDARD OF REVIEW

         Under 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.” The petitioner bears the burden of establishing entitlement to § 2255 relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995) (quotation and citations omitted), overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n.1 (10th Cir. 2001)(en banc). Pursuant to an order of reference, Magistrate Judge Martinez concluded in her PFRD that Henry did not meet his burden and recommended that the Court deny Henry's request for resentencing. See PFRD at 2. Under 28 U.S.C. § 636(b)(1)(C) and with the substantive standard of review in mind, the Court must now make “a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). “[O]bjections to the magistrate judge's report must be both timely and specific to preserve an issue for de novo review by the district court . . . .” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). Likewise, “theories raised for the first time in objections . . . are deemed waived.” United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001)(citation omitted).

         ANALYSIS

         The ACCA addresses the “special danger” that career offenders carrying guns pose, Begay v. United States,553 U.S. 137, 146 (2008), by imposing a minimum fifteen-year sentence for felons in possession of firearms with three previous convictions for violent felonies or serious drug offenses, see 18 U.S.C. § 924(e)(2)(B). A “violent felony” is “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against [another] person, ” “is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). The Court enhanced Henry's sentence under the ACCA, because he was convicted of drug trafficking in New Mexico, see N.M. Stat. Ann. § 30-31-20, aggravated battery against a household member in ...


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