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United States v. Hammons

United States District Court, D. New Mexico

December 31, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ROBERT LESTER HAMMONS, Defendant/Movant.

          James A Tierney Acting United States Attorney David M. Walsh Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff/Respondent

          Charles N. Fisher The Law Office of Charles Fisher Albuquerque, New Mexico Attorneys for the Defendant/Movant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) Defendant-Movant Robert L. Hammons' Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255, filed June 24, 2016 (CIV Doc. 6)(CR Doc. 114)(“Motion”); (ii) the United States Magistrate Judge's Proposed Findings and Recommended Disposition, filed April 25, 2016 (CIV Doc. 28)(CR Doc. 136)(“PFRD”); (iii) Defendant-Movant's Objection to United States Magistrate Judge's Proposed Findings & Recommendations, filed May 10, 2017 (CIV Doc. 31)(CR Doc. 137)(“PFRD Objections”); and (iv) the Amended Proposed Findings and Recommended Disposition, filed June 26, 2017 (CIV Doc. 33)(CR Doc. 139)(“Amended PFRD”).[1] The primary issues are: (i) whether, in light of the Supreme Court of the United States' decisions in Johnson v. United States, 559 U.S. 133 (2010)(“Johnson I) and Johnson v. United States, 135 S.Ct. 2551 (2015)(“Johnson II”), New Mexico aggravated assault against a household member with a deadly weapon, defined by N.M. Stat. Ann. § 30-3-13, is an Armed Career Criminal Act, 18 U.S.C. § 924, (“ACCA”), violent felony; and (ii) whether Oregon first-degree robbery, defined by Or. Rev. Stat. Ann. § 164.415, is an ACCA violent felony. The Court stands by its earlier, post-Johnson I determination that New Mexico aggravated assault against a household member with a deadly weapon has “as an element the use, attempted use, or threatened use of physical force against the person of another, ” 18 U.S.C. § 924(e)(2)(B)(i)(“Elements Clause”), and, thus, qualifies as an ACCA violent felony. See Memorandum Opinion and Order at 35, 2010 WL 4321693, at *19, filed October 6, 2010 (CR Doc. 73)(“Sentencing MOO”)(quoting 18 U.S.C. § 924(e)). The Court also determines that Oregon first-degree robbery likewise qualifies as an ACCA violent felony under the Elements Clause. Consequently, Hammons' conviction for New Mexico aggravated assault against a family member and his two convictions for Oregon first-degree robbery mean that he remains eligible for an enhanced sentence under the ACCA, notwithstanding Johnson I and Johnson II, so the Court will deny the Motion.

         FACTUAL BACKGROUND

         On June 13, 2007, a grand jury returned an indictment charging Hammons with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See Indictment at 1, filed June 13, 2007 (CR Doc. 1). Plaintiff United States of America and Hammons entered into a plea agreement. See Plea Agreement at 1, filed October 30, 2008 (CR Doc. 33). The United States then notified Hammons and the Court that it would seek an enhanced sentence under the ACCA. See Notice of Intention to Seek Enhanced Sentence Pursuant to the Armed Career Criminal Provisions of 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4 ¶ 4, at 2, filed April 21, 2009 (CR Doc. 38)(“ACCA Notice”). The United States asserted that the “Defendant has the requisite number of prior violent felony convictions for the purposes of 18 U.S.C. § 924(e).” ACCA Notice ¶ 3, at 1. The United States identified five such convictions: (i) a New Mexico conviction for false imprisonment; (ii) a New Mexico conviction for aggravated assault against a household member with a deadly weapon; (iii) two Oregon convictions for first-degree robbery; and (iv) an Oregon conviction for second-degree kidnapping. See ACCA Notice ¶ 3, at 1-2. See also State v. Hammons, Nos. CR 2000-5122, CR 2001-00059, Judgment, Sentence, and Order Suspending Sentence (Second Judicial District Court, County of Bernalillo, State of New Mexico, dated November 5, 2001), filed April 21, 2009 (CR Doc. 38-1)(false imprisonment and aggravated assault against a household member with a deadly weapon); State v. Hammons, No. 7010, Judgment and Sentence (Circuit Court of the State of Oregon for Umatilla County, dated December 11, 1981), filed April 21, 2009 (CR Doc. 38-3)(first-degree robbery and second-degree kidnapping); State v. Hammons, No. 52166, Order (Circuit Court of the State of Oregon for Linn County, dated October 30, 1978), filed April 21, 2009 (CR Doc. 38-2)(first-degree robbery).

         Hammons objected to an ACCA enhancement. See Defendant's Objection to Imposition of Enhanced Sentence Pursuant to the Armed Career Criminal Provisions of 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, filed August 28, 2009 (CR Doc. 47)(“Sentencing Objections”). Hammons argued that neither of his New Mexico convictions were convictions for violent felonies under the ACCA. See Sentencing Objections ¶ 1, at 1 (false imprisonment); id. ¶ 10, at 8 (aggravated assault against a family member with a deadly weapon).

         The Court overruled Hammons' Sentencing Objections. See Sentencing MOO at 47, 2010 WL 4321693, at *26. The Court determined that New Mexico aggravated assault against a family member with a deadly weapon is a violent crime, because it “has as an element ‘the use, attempted use, or threatened use of physical force against another person.'” Sentencing MOO at 35, 37, 2010 WL 4321693, at *19-21 (quoting 18 U.S.C. § 924(e)). The Court based that determination on the “plain language of the statute.” Sentencing MOO at 35, 2010 WL 4321693, at *20. See N.M. Stat. Ann. § 30-3-13 (“Aggravated assault against a household member consists of . . . unlawfully assaulting or striking at a household member with a deadly weapon . . . .”). The Court also determined that New Mexico false imprisonment qualifies as an ACCA violent felony under 18 U.S.C. § 924(e)(2)(B)(ii)(“Residual Clause”), see Sentencing MOO at 44, 2010 WL 4321693, at *25-26, which states that -- in addition certain enumerated offenses --crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another” are ACCA violent felonies, 18 U.S.C. § 924(e)(2)(B)(ii). In light of those two determinations and Hammons' failure to object to the use of his Oregon convictions in the ACCA Notice, the Court concluded that Hammons had at least three violent felony convictions. See Sentencing MOO at 31, 44, 2010 WL 4321693, at *18, *25-26. The Court accordingly imposed a sentence of 180 months imprisonment. See Judgment at 2, filed February 16, 2012 (CR Doc. 109).

         PROCEDURAL BACKGROUND

         Hammons filed a pro se habeas corpus petition on May 27, 2016. See Hammons v. Tracy, filed May 27, 2016 (CIV Doc. 1)(“Habeas Petition”). The Honorable Lourdes A. Martinez, United States Magistrate Judge, determined that Hammons “may only challenge his conviction and sentence . . . by a motion under 28 U.S.C. § 2255 and may not seek relief under Section 2241.” Order at 1, filed June 8, 2016 (CIV Doc. 5)(CR Doc. 113)(“Recharacterization Order”). Judge Martinez announced her intention to recharacterize the Habeas Petition as a “motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255” and granted Hammons leave to “withdraw the [Habeas Petition] or to amend it to add additional claims he may have.” Recharacterization Order at 2.

         1. The Motion.

         Hammons filed a § 2255 motion with the assistance of appointed counsel. See Motion at 25 (listing Charles Fisher as Hammons' attorney). See also CJA Appointment of Charles N. Fisher by District Judge James O. Browning, filed May 11, 2016 (CR Doc. 112). Hammons argues that his Motion is timely, because it was filed within one year of the Supreme Court's decision in Welch v. United States, 136 S.Ct. 1257 (2016), which determined that Johnson II is a substantive decision that applies retroactively in cases on collateral review. See Motion at 2-4. See also 28 U.S.C. § 2255(f) (stating that a petitioner can file a § 2255 motion within one year of “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable”).

         On the Motion's merits, Hammons argues that, after Johnson II's invalidation of the Residual Clause, New Mexico false imprisonment is no longer an ACCA violent felony. See Motion at 13. Hammons also argues that New Mexico aggravated assault against a household member with a deadly weapon is not an ACCA violent felony. See Motion at 16. According to Hammons, the “‘threatened use of physical force against the person of another' in the elements or force clause should also be confined to an intentional threat to inflict ‘violent force -- that is, force capable of causing physical pain or injury to another person.'” Motion at 16 (emphases in originals)(quoting 18 U.S.C. § 924(e); Johnson I, 559 U.S. at 140). Hammons contrasts that reading of the Elements Clause with “aggravated assault in New Mexico[, which] does not require, as an element, the intentional use of violent force, or, as an element, an intent to assault or to injure, or even to frighten.” Motion at 19. Hammons adds that the United States “has never disputed that the alleged ‘deadly weapon'” involved in Hammons' offense “was a stun gun, ” Motion at 13, and he asserts that a stun gun is not a deadly weapon, see Motion at 15.

         2. The Response.

         Magistrate Judge Martinez ordered the United States to respond to the Motion, see Order at 2, filed July 5, 2016 (CIV Doc. 8)(CR Doc. 115), and the United States obliged, see United States' Response to Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 at 1, filed November 11, 2016 (CIV Doc. 20)(CR Doc. 128)(“Response”). The United States concedes that, after Johnson II, Hammons' “false imprisonment convictions are no longer valid [ACCA] predicates.” Response at 2. The United States argues, however, that Hammons “has three remaining valid predicates for ACCA purposes, having convictions for robbery in the first degree (two offenses) out of the state of Oregon, ” and a New Mexico conviction for “Aggravated Assault Against a Household Member (Deadly Weapon).” Response at 2. The United States notes that the “Defendant does not take issue or dispute the validity of his two separate Oregon robberies in the first degree qualifying as ACCA predicates, ” and that the Hammons' 1978 first-degree robbery and his 1981 first-degree robbery “are separate offenses that were perpetrated at separate times, locations, and victims.” Response at 2.

         The United States then argues that Hammons' aggravated assault against a household member with a deadly weapon conviction remains an ACCA violent felony. See Response at 4. The United States contends both that the Court's conclusion in its Sentencing MOO -- that aggravated assault against a household member with a deadly weapon qualifies as an ACCA violent felony under the Elements Clause -- “remains valid, ” Response at 4 (citing Sentencing MOO, 2010 WL 4321693, at *19-21), and that the United States Court of Appeals for the Tenth Circuit recently determined -- albeit in a case construing U.S.S.G. § 2L1.2(b)(1) -- that “the New Mexico crime of aggravated assault with a deadly weapon contains as an element the use, attempted or threatened use of physical force, ” Response at 4 (citing United States v. Maldonado-Palma, 839 F.3d 1244, 1248-50 (10th Cir. 2016)(Seymour, J.)). The United States concludes by asserting that the “Defendant cannot now collaterally attack his conviction by stating that his stun gun did not qualify as a deadly weapon.” Response at 8.

         3. The Reply.

         By way of reply, Hammons argues, for the first time, that Oregon first-degree robbery is not an ACCA violent felony. Defendant-Movant Robert L. Hammons' Reply to the United States' Response to Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 at 3, filed January 27, 2017 (CIV Doc. 23)(CR Doc. 131)(“Reply”). Hammons begins that argument --perplexingly -- by stating that “[i]n his Motion . . . Mr. Hammons conceded that the convictions in Oregon for robbery in the first degree to which Mr. Hammons pled guilty in 1978 and 1981 . . . were violent felonies.” Reply at 3. Without further explanation, Hammons brings a third Johnson case, State v. Johnson, 168 P.3d 312 (Or. Ct. App. 2007)(“Johnson Or.”), to the Court's attention, and contends that Johnson Or. shows that Oregon third-degree robbery is not an ACCA violent felony under the Elements Clause, because it “does not rise to the level of ‘violent force' required by” Johnson I. Reply at 3. It follows, according to Hammons, that Oregon first-degree robbery is not an ACCA violent felony under the Elements Clause, because one commits Oregon first-degree robbery by committing Oregon third-degree robbery, and: (i) being armed with a deadly weapon; (ii) using or attempting to use a dangerous weapon; or (iii) causing or attempting to cause serious physical injury to any person. See Reply at 3-4. Hammons contends that those three aggravators do not satisfy the Elements Clause, so first-degree robbery, like third-degree robbery, is not an ACCA violent felony. See Reply at 4.

         Turning to his New Mexico conviction, Hammons recognizes that “the Court may consider itself at least guided by the circuit court's ruling” in United States v. Maldonado-Palma, but he attempts to distinguish that case from his own: “However, the statute under which Mr. Hammons was convicted differs from the statute under which Mr. Maldonado-Palma was convicted, specifically requiring that the aggravated assault be against ‘a household member, '” Reply at 9 (quoting N.M. Stat. Ann. § 30-3-13). Hammons then raises “the issue of whether or not a stun gun could be a ‘deadly weapon' within the meaning of [N.M. Stat. Ann. § 30-1-12(B)], ” only to concede that, “in light of the Court's ruling in its [Severance MOO], and the authorities cited therein, . . . Mr. Hammons may not now raise that element of the offense of conviction to collaterally attack his conviction.” Reply at 9.

         4. The PFRD.

         On April 25, 2017, Magistrate Judge Martinez issued proposed findings and recommended that the Motion “be DENIED and that this case be DISMISSED with prejudice.” PFRD at 2 (emphasis omitted). Magistrate Judge Martinez acknowledges Hammons' contention that Johnson Or. “held that a conviction for Oregon third degree robbery requires only minimal force, ” but she observes that the “Defendant fails to note that in State of Oregon v. Hamilton, [233 P.3d 432 (Or. 2010), ] the Oregon Supreme Court” states that it “‘is the additional factor of actual or threatened violence that transforms [one's] conduct from theft, which requires only the intent to deprive, into a substantially different crime, robbery.'” PFRD at 7 (quoting State v. Hamilton, 233 P.3d at 436). Magistrate Judge Martinez accordingly concludes that, notwithstanding the Court of Appeals of Oregon's Johnson Or. opinion, “Oregon's third degree robbery statute satisfies Johnson 2010's definition of physical force, ” such that Oregon third-degree robbery -- and, hence, Oregon first-degree robbery -- qualifies as an ACCA violent felony. PFRD at 8. Magistrate Judge Martinez also concludes, based on “the Tenth Circuit's holding in United States v. Ramon Silva, [608 F.3d 663 (10th Cir. 2010), ] that New Mexico's aggravated assault statute constitutes a ‘crime of violence' under the Johnson 2010 standard, ” PFRD at 9 (citing United States v. Ramon Silva, 608 F.3d at 669-71), “that New Mexico's aggravated assault against a household member statute constitutes a violent felony for the purposes of the ACCA, ” PFRD at 10.

         5. The PFRD Objections.

         Hammons objects to the PFRD. See Defendant-Movant's Objections to United States Magistrate Judge's Proposed Findings & Recommendation at 1, filed May 10, 2017 (CIV Doc. 31)(CR Doc. 137)(“PFRD Objections”). Hammons acknowledges the Supreme Court of Oregon's statement that actual or threatened violence turns theft into robbery, but “respectfully submit[s] that, absent the application of actual force, or alternatively evidence of the effect of any threats or intimidation upon the victim, this is insufficient to rise to” an ACCA violent felony. PFRD Objections at 2-3. As to New Mexico aggravated assault against a household member with a deadly weapon, Hammons admits that, in light of United States v. Ramon Silva, “Tenth Circuit case law does not support his contentions and argument.” PFRD Objections at 3. Hammons “would respectfully submit that . . . the dissent authored by Judge Harris Hartz [in United States v. Ramon Silva] represents a well-argued and appropriate interpretation of the law regarding the statutory offenses of aggravated assault.” PFRD Objections at 3.

         6. The Amended PFRD.

         When Magistrate Judge Martinez retired, the Clerk of the Court reassigned Hammons' case to the recently appointed Honorable Kevin R. Sweazea, United States Magistrate Judge, see Notice, filed May 3, 2017 (CIV Doc. 29), and the Court ordered Magistrate Judge Sweazea to “submit an analysis, including findings of fact, if necessary, and recommended disposition, ” Order of Reference Relating to Prisoner Cases at 1, filed May 8, 2017 (CIV Doc 30)(“Reference Order”). Magistrate Judge Sweazea, “[a]cting under [his] inherent authority to reconsider previous rulings” and pursuant to the Reference Order, issued the Amended PFRD, which recommends “Hammons' motion be granted and he be resentenced.” Amended PFRD at 1. Magistrate Judge Sweazea agrees with Magistrate Judge Martinez' determination that “the crime of aggravated assault against a household member includes the use or threatened use of violent force and was properly used to enhance Hammons' sentence under the ACCA.” Amended PFRD at 11. Magistrate Judge Sweazea does not, however, agree with Magistrate Judge Martinez' determination regarding Oregon third-degree robbery, and he instead agrees with Hammons' contention “that third-degree robbery under Oregon law . . . does not entail the type of violent, physical force sufficient to meet Johnson 2010.” Amended PFRD at 12. Magistrate Judge Sweazea reasons that the Court of Appeals of Oregon's determination that “a tug was sufficient [for a third-degree robbery conviction] so long as it overcame the resistance of the victim” means that “third-degree robbery does not meet Johnson 2010's violent-force requirement because only slight force is necessary to sustain a conviction.” Amended PRRD at 14-15 (emphasis in original)(citing Johnson Or., 168 P.3d at 314-15). Unlike Magistrate Judge Martinez, who reads the Supreme Court of Oregon's statements in State v. Hamilton to dictate a contrary result, see PFRD at 7, Magistrate Judge Sweazea explains away those statements as dicta, because “Hamilton turned on the definition of ‘victim' under the robbery statute, not the degree of force necessary to sustain a conviction, ” so “[t]he Oregon Supreme Court therefore did not overrule State v. Johnson expressly or by implication.” Amended PFRD at 14-15.

         According to Magistrate Judge Sweazea, that Oregon third-degree robbery is not an ACCA violent felony means that Oregon first-degree robbery is, likewise, not an ACCA violent felony, because third-degree robbery can become first-degree robbery just because the perpetrator possesses -- but does not use or make representations about -- a gun. See Amended PFRD at 16-17. See also id. at 21 (“Hammons' convictions do not withstand scrutiny under the ACCA's force clause because first-degree robbery may be based on mere possession of a firearm while using minimal force to deprive a victim of personal property.”). Magistrate Judge Sweazea consequently concludes that “Hammons has only one qualifying conviction under the ACCA, aggravated assault against a household member under New Mexico law.” Amended PFRD at 21. Magistrate Judge Sweazea therefore recommends that the Court resentence Hammons. See Amended PFRD at 21.

         7. The Minute Order.

         On September 17, 2017, the Court issued a minute order requesting the United States to respond to the Court's inquiries regarding four issues: (i) whether the United States concedes that, after Johnson II, New Mexico false imprisonment is not an ACCA violent felony; (ii) whether the Court would err if it adopted the PFRD instead of the Amended PFRD; (iii) whether, if the Court adopts the PFRD's reasoning, the United States will defend that decision on appeal or will it, instead, concede error; and (iv) whether, and to what extent, the United States agrees with the PFRD's and the Amended PFRD's analysis. See Minute Order, filed September 17, 2017 (CIV Doc. 35).

         8. The Minute Order Response.

         Two months later, the United States filed its response to the Court's minute order. See United States' Response to the Court's Minute Order of September 17, 2017 at 3, filed November 17, 2017 (CIV Doc. 36)(CR Doc. 140)(“Minute Order Response”). The United States, in its Minute Order Response, does not address whether it concedes that New Mexico false imprisonment is not an ACCA violent felony. See Minute Order Response at 2. The United States articulates its position vis-à-vis the PFRD and the Amended PFRD, which is, essentially, not to decide. See Minute Order Response at 2 (stating that “the United States has determined to accept whatever decision this honorable court may reach in this matter as to Defendant's motion, ” but committing to “defend the Court on appeal” if it denies Hammons' requested relief). See also Stephen A. Sondheim, On the Steps of the Palace, Into the Woods (1987)(“Wait no thinking it through, things don't have to collide. I know what my decision is, which is not to decide.”).

         LAW REGARDING THE ACCA

         Congress adopted the ACCA to address the “special danger” that attends career offenders carrying guns. Begay v. United States, 553 U.S. 137, 146 (2008). The ACCA imposes a fifteen-year minimum sentence for individuals who violate 18 U.S.C. § 922(g) by being a felon in possession of a firearm who have “three previous convictions . . . for a violent felony or serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felony” such that it includes

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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 . . . .

18 U.S.C. § 924(e)(2)(B).

         Whether a particular offense is an ACCA violent felony is a question of law. See Johnson I, 559 U.S. at 134-35; United States v. Martinez, 602 F.3d 1166, 1168 (10th Cir. 2010). The Supreme Court held that the ACCA's Residual Clause -- i.e., “or otherwise involves conduct that presents a serious potential risk of physical injury to another, ” 18 U.S.C. § 924(e)(2)(B)(ii) -- is void for vagueness, which means that imposing an enhanced sentence under the Residual Clause violates the Fifth Amendment to the Constitution of the United States of America's Due Process Clause, Johnson II, 135 S.Ct. at 2562-63. The Supreme Court expressly limited its holding by observing that “[t]oday's decision does not call into question application of the” ACCA's Element's Clause or its list of four enumerated offences. Johnson II, 135 S.Ct. at 2563. See 18 U.S.C. § 924(e)(2)(B)(ii)(stating that a felony that “is burglary, arson, or extortion, ” or involves explosives is an ACCA violent felony)(“Enumerated Offenses Clause”).

         1. The Categorical and Modified Categorical Approaches.

         To determine whether an offense is for an ACCA violent felony, courts apply the “categorical approach” by looking “only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction.” United States v. Scoville, 561 F.3d 1174, 1176 (10th Cir. 2009)(citation omitted). See United States v. Ramon Silva, 608 F.3d at 668 (applying the categorical approach). All that is relevant is “‘whether the elements of the offense are of the type that would justify its inclusion' within the ACCA”; the court does not “‘inquir[e] into the specific conduct of this particular offender.'” United States v. Scoville, 561 F.3d at 1176 (quoting James v. United States, 550 U.S. 192, 202 (2007)). See Begay v. United States, 553 U.S. at 141 (“In determining whether this crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.”); Taylor v. United States, 495 U.S. 575, 602 (1990); United States v. Hernandez, 568 F.3d 827, 829 (10th Cir. 2009). See also United States v. Alires, No. CR 14-3902, 2017 WL 2297095, ...


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