United States v. Pena

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE

         Federal 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) (“Johnson 2015”). (Docs.^[1] 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.

         BACKGROUND

         On the 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 Cadillac. (Id.).

         As it 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.)

         In an 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).

         On 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. (Id.).

         On July 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. (Id.).

         Pena 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).

         Following 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).

         Two 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).

         Relying 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.^[2] 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.^[3] 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.

         STANDARD OF REVIEW

         Section 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 ...