United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
R. SWEAZEA UNITED STATES MAGISTRATE JUDGE.
inmate Tommy Pena seeks review of his 480-month sentence
pursuant to 28 U.SC. § 2255 and Johnson v. United
States, 576 U.S. ___, 135 S.Ct 2551 (2015)
(Docs. 152 & 160). Pena contends his sentence
must be vacated because federal carjacking as well as his
prior New Mexico convictions for assault and shooting at an
occupied building/dwelling no longer qualify as a crime of
violence and violent felonies respectively, under 18 U.S.C.
§924(c) and the Armed Career Criminal Act
(“ACCA”). (Doc. 160) For its part, the Government
agrees Pena is not an armed career criminal post Johnson
2015 and must be resentenced as a result. (Doc. 160).
Nonetheless, the Government insists Pena's conviction and
120-month consecutive sentence for using a firearm
during a crime of violence under Section 924(c) remain valid.
(Doc. 174). Pursuant to an order of reference from United
States District Judge William Johnson to conduct proceedings,
see 28 U.S.C. § 636, the Court has considered
the parties' submissions (Docs. 152, 160, 168-69, 171,
174, & 177) and now RECOMMENDS that Pena
be resentenced without any enhancement under the ACCA, but
that Pena's amended motion to vacate, set aside, or
correct sentence (Doc. 160) be denied in all other respects.
evening of April 6, 2010, Arthur Lacey answered the door at
his home in Roswell, New Mexico. (Doc. 72, pp. 2-3). On the
other side were Pena and co-defendant Jeremy Conde.
(Id.) Both were armed, and Pena pointed a 9
millimeter handgun at Lacey. (Id.). Pena claimed
Lacey owed money, which Lacey denied. (Id.) At the
time, Lacey's pregnant wife, Collette, and three children
were inside. (Id., pp. 3-4). Lacey fled to a
neighbor's house to call for help. (Id., p. 3).
As Lacey exited, Pena and Conde entered the residence.
(Id.). Conde proceeded to ransack a bedroom in
search of Collette's purse. (Id., p. 4). Pena,
who had pocketed his gun, searched the living room, taking a
laptop while Collette followed him demanding answers.
(Id.) At some point, the commotion woke Lacey's
nine-year-daughter who went to Collette. Conde pointed his
gun at Collette and then the child. (Id.). As the
two felons were leaving, Pena grabbed the key to Lacey's
Cadillac El Dorado from its spot above the microwave in the
kitchen. (Id., p. 4). Pena drove off in the
turns out, Pena and Conde had been hired by Isabel Saucedo to
recover an alleged “debt” for Saucedo in exchange
for an ounce of methamphetamine and the El Dorado's tire
rims. (Id., p. 2). Saucedo had once lived with the
Laceys and kept cash there-proceeds from the methamphetamine
she sold-that she insisted Lacey stole. (Id.).
Saucedo believed that Lacey had bought the Cadillac with the
stolen money and directed Pena and Conde to return either
with the cash or the car. (Id.)
unrelated incident four days later, Pena and Conde were
driving Conde's car in Roswell. (Id., p. 5).
They were armed with the same guns they used at Lacey's
house, and both had ammunition with them. (Doc. 60, p. 138).
At some point while “cruising, ” Pena and Conde
drove past a group of individuals. (Id., pp. 138;
141-42). One of the individuals shot at Conde and struck him.
(Id., p. 142). Conde shot back. (Id., pp.
142-43). Pena also shot from the vehicle's passenger side
by putting his hand out of the window and over the top of the
car. (Id., p. 143). After totaling the car, Conde
and Pena escaped to a friend's house nearby.
(Id. pp. 144; 147-49).
April 18, 2010, in a final incident, Pena and Conde decided
they would follow Fred Luna in Pena's sister's car
because Luna was “mad dogging” them-giving them
threating looks. (Doc. 71, p. 5). As before, both were armed.
(Id.). After detecting Pena and Conde, Luna pulled
into a church parking lot to evade them, exiting the truck
and attempting to flee into the church. (Id., p. 6).
Pena and Luna caught up, and Luna was unable to get into the
church because it was locked. (Id.). Pena stayed in
the car, and Conde got out to address Luna. (Id.).
When both pointed their guns at Luna, Luna ran away.
(Id.). By the time Luna realized he had left his
truck running, it was too late: Pena had informed Conde that
the keys were in the truck, and Conde jumped in the truck to
drive it off. (Id.). Later, the two tore out the
stereo and left the truck at an abandoned house.
(Id., p. 6). The following day, authorities
apprehended Pena after a car and foot chase. (Id.).
At the time, Pena was in possession methamphetamine, two
shotguns, and hundreds of rounds of ammunition.
22, 2010, a federal grand jury returned a seventeen-count
indictment against Pena and Conte. (Doc. 19). Specific to
Pena, the grand jury charged two counts of conspiracy to
commit carjacking contrary to 18 U.S.C. §§ 371
& 2119, one count for Lacey (Count 1) and one for Luna
(Count 9); two counts of carjacking and aiding and abetting
carjacking in violation of 18 U.S.C. §§ 2 &
2119, one count for Lacey (Count 2) and one for Luna (Count
10); two counts of carrying and using a firearm to commit the
carjackings (crimes of violence) contrary to 18 U.S.C. §
924(c), one count for Lacey's car (Count 4) and one for
Luna's truck (Count 12); four counts of being a felon in
possession of a firearm, see 18 U.S.C. §
922(g)(2), one count for having a gun at the Lacey home
(Count 6), one for the drive-by shooting (Count 8), one for
the Luna carjacking (Count 14), and one for the shotguns
found when arrested (Count 15); and possessing
methamphetamine contrary to 18 U.S.C. § 844(a) (Count
16). (Doc. 19). As prior convictions to support the
felon-in-possession counts, the indictment listed crimes Pena
committed in New Mexico' Fifth Judicial District:
tampering with evidence, aggravated assault, and two
instances of shooting at an occupied building/dwelling.
waived his right to a jury trial, and Judge Johnson conducted
a two-day bench trial beginning on December 14, 2010. (Docs.
53; 70-71). At the end of the trial, the Court found Pena
guilty on Counts 6 (felon in possession for Lacey
carjacking), 8 (felon in possession for the drive-by), 14
(felon in possession for Luna carjacking), 15 (felon in
possession at time of arrest), and 16 (possession of
methamphetamine), but reserved ruling on the remaining
counts. (Doc. 61, pp. 417-26). On May 13, 2010, Judge Johnson
issued written findings of fact and conclusions of law,
adjudging Pena guilty on Counts 1 (conspiracy to carjack
Lacey's Cadillac), 2 (carjacking of Lacey's
Cadillac), and 4 (using/carrying a firearm in relation to
crime of violence for the Lacey carjacking); and not guilty
on Counts 9 (conspiracy to commit carjacking of Luna's
vehicle), 10 (carjacking of Luna's vehicle), and 12
(using/carrying a firearm in relation to crime of violence
for the Luna carjacking). (Doc. 71).
trial, the United States Probation Office prepared a
presentence report (“PSR”). (Doc. 179). As is
relevant here, the PSR labeled Pena an “armed career
criminal” because of two felony convictions for
shooting at a dwelling contrary to N.M. Stat. Ann. §
30-3-8(A), and a conviction for aggravated assault with a
firearm, N.M. Stat. Ann. § 30-3-2. (Doc. 179,
¶¶ 63-64). Pena was sentenced on November 11, 2011.
(Doc. 96). After adopting the uncontested PSR, the Court
imposed 180 months incarceration on Counts 1 and 2; 360
months on Counts 6, 8, 14, and 15; 12 months on Count 16; and
120 months on Count 4. The sentences on Counts 1, 2, and 16
were to run concurrent to the 30 years for Counts 6, 8, 14,
and 15, but the ten years on Count 4 was to be served
consecutively. (Id.). All told, Pena received 480
months or 40 years in federal prison. Pena appealed his
convictions for carjacking, use of a firearm during a crime
of violence, and conspiracy to commit carjacking. See
United States v. Pena, 550 Fed.Appx. 563 (10th Cir.
2013). The Tenth Circuit affirmed in an unpublished opinion
on December 16, 2013. See Id. Pena's convictions
became final on April 21, 2014, when the Supreme Court denied
certiorari. See 28 U.S.C. § 2255(f).
years later, the Supreme Court invalidated the Armed Career
Criminal Act's “residual clause, ”
Johnson 2015, 135 S.Ct. 2551, which forms the basis
for Castillo's motion for relief under Section 2255. The
residual clause refers to the second sentence of Section
924(e)(2)(B)(ii) that broadly defines “violent
felony” as “otherwise involv[ing] conduct that
presents a serious risk of physical injury to another.”
18 U.S.C §924(e)(2)(B)(ii). Important here is that after
Johnson 2015, an armed career criminal who received
a mandatory minimum sentence because of the residual clause
is entitled to resentencing. By contrast, an armed career
criminal sentenced on the basis of the ACCA's other,
disjunctive definitions of “violent felony” is
unaffected by Johnson 2015: the “force clause,
” which includes “the use, attempted use, or
threatened use of physical force against . . .
another”; and the “enumerated clause”
identifying specific offenses: “burglary, arson, or
extortion . . . [or crimes] involve[ing] explosives.”
18 U.S.C. § 924(e)(2)(B)(i)-(ii).
on Johnson 2015, Pena argues the 360-month sentence
he received for being a felon in possession-as enhanced under
the ACCA by the three New Mexico convictions listed in the
PSR-is unconstitutional. (Doc. 160). And although Johnson
2015 does not facially apply to Pena's conviction
for using a firearm while carjacking, Section 924(c) contains
a similarly worded residual clause that, Pena contends, must
likewise be unconstitutional. (Id.) Since Pena filed
his motion, the parties have narrowed the issues
considerably. For its part, the Government concedes the
crime of shooting at an occupied building/dwelling no longer
is a violent felony under the ACCA and Pena must be
resentenced as a result. Similarly, Pena has abandoned his
argument that aggravated assault categorically lacks the
“violence” the Supreme Court requires under the
ACCA's force clause. See Johnson v. United
States, 559 U.S. 133, 140 (2010) (“Johnson
2010”) (defining “violent force” as
“force capable of causing physical pain or injury to
another”). As a result, the question before the Court
is not whether Pena is entitled to resentencing-he is.
Instead, the issue is the scope of resentencing; whether
Pena's 120-month consecutive sentence for using
a firearm while carjacking Lacey's Cadillac may be
included in Pena's new term of incarceration.
2255 permits a federal inmate to “move the court which
imposed the sentence to vacate, set aside or correct the
sentence” on “the ground that the sentence was
imposed in violation of the Constitution and laws of the
United States[.]” 28 U.S.C. § 2255(a). If the
inmate shows “the sentence imposed was not authorized
by law or is otherwise open to collateral attack, or that
there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack, ” the Court
shall “discharge the prisoner or resentence him or
grant a new trial or correct the sentence as may appear
appropriate.” Id., § 2255(b). In
reviewing a Section 2255 motion, the ...