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United States v. Castillo

United States District Court, D. New Mexico

March 5, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
PERMANUEL CASTILLO, Defendant/Movant.

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

         THIS MATTER is before the Court under 28 U.S.C. § 636(b)(1) on the Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 15) and on Movant Permanuel Castillo's Objections to the Magistrate Judge's Proposed Findings and Recommended Disposition (Doc. 20).

         The Court overrules Movant's Objections and adopts the Magistrate Judge's Proposed Findings and Recommended Disposition.

         1. Factual and Procedural Background

          Movant Permanuel Castillo was charged with (1) Assault with a Dangerous Weapon, in violation of 18 U.S.C. §§ 1153 and 113(a)(3), (2) Assault Resulting in Serious Bodily Injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6), and (3) Use of a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). (CR Doc. 14). On April 13, 2013, Movant entered into a Plea Agreement, pleading guilty to the charge of Use of a Firearm During a Crime of Violence. (CR Doc. 31). The Plea Agreement contained an appeal waiver, stating that Castillo was knowingly waiving his right to appeal his conviction and sentence and any collateral attack to the conviction or sentence other than on the issue of ineffective assistance of counsel. (CR Doc. 31 at 6). Castillo was sentenced to a term of 120 months as to Court 3 and the remaining counts were dismissed on motion by the United States. (CR Doc. 39). The Court also imposed a term of 5 years of supervised release. (CR Doc. 39 at 3).

         Movant filed his Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 on June 21, 2016. (CV Doc. 1; CR Doc. 41). In his § 2255 Motion, Movant Castillo contended that his 120-month sentence for use of a firearm during a crime of violence, in violation of § 924(c), is unconstitutional because his predicate offenses of assault with a deadly weapon and assault resulting in serious bodily injury no longer qualify as crimes of violence following the holding of Johnson v. United States, U.S., 135 S.Ct. 2551 (2015). The United States filed its Response to Castillo's § 2255 Motion on August 29, 2016. (CV Doc. 6, CR Doc. 47). The United States raised Castillo's waiver of collateral review in the Plea Agreement and procedural default based on Castillo's failure to raise the issues on appeal. (CV Doc. 6 at 2-5, 16-22; CR Doc. 47 at 2-5, 26-22). The United States also contended that Johnson does not extend to § 924(c) and Castillo's convictions constitute crimes of violence under the “force” clause of § 924(c) rather than the residual clause. (CV Doc. 6 at 5-16; CR Doc. 47 at 5-16). Movant Castillo filed his Reply to the United States' Response on December 13, 2016. (CV Doc. 13; CR Doc.54).

         The case was referred to the Magistrate Judge for proposed findings and a recommended disposition under 28 U.S.C. § 636(b)(1). (CV Doc. 14). The Magistrate Judge entered the Proposed Findings and Recommended Disposition on March 10, 2017. (CV Doc. 15; CR Doc. 55) (“PFRD”). In the PFRD, the Magistrate Judge found:

(1) that Castillo had shown cause and prejudice sufficient to overcome failure to file a direct appeal and his § 2255 Motion is not barred by procedural default (CV Doc. 15 at 7; CR Doc. 55 at 7);
(2) that the waiver of collateral review in the Plea Agreement is enforceable and Castillo's § 2255 claims are barred by the waiver (CV Doc. 15 at 9; CR Doc. 55 at 9);
(3) that the Court need not reach the question of whether the U.S. Supreme Court's ruling in Johnson extends to § 924(c) (CV Doc. 15 at 11; CR Doc. 55 at 11); and
(4) that Castillo's convictions for assault with a dangerous weapon under § 113(a)(3) and assault resulting in serious bodily injury under § 113(a)(6) constitute crimes of violence under § 924(c)(3)(A)'s force clause and without resort to § 924(c)(3)(B)'s residual clause (CV Doc. 15 at 15; CR Doc. 55 at 15). The Magistrate Judge recommended enforcing the waiver and dismissing Castillo's § 2255 Motion on that basis or, alternatively, denying the Motion on the grounds that Defendants' assault charges constitute crimes of violence under § 924(c)(3)(A)'s force clause. (CV Doc. 15 at 15; CR Doc. 55 at 15). In the PFRD, the Magistrate Judge notified the parties of their right to file written objections within fourteen (14) days after service of the PFRD and advised that filing of written objections was necessary to preserve any issue for further appellate review of the PFRD. (CV Doc. 15 at 1, nt. 1; CR Doc. 55 at 1, nt. 1).

         Following an extension of time, Movant Castillo filed Petitioner's Objects to the Magistrate Judge's Proposed Findings and Recommended Disposition on May 24, 2017. (CV Doc. 20; CR Doc. 58). Castillo objected to the Magistrate Judge's finding that the Plea Agreement waiver of collateral review should be enforced on the grounds that enforcement of the postconviction waiver would allow his fundamentally unfair sentence to stand and result in a miscarriage of justice. (CV Doc. 20 at 1-3, ¶¶ 1-4; CR Doc. 58 at 1-3, ¶¶ 1-4). Castillo also objected to the Magistrate Judge's finding that Castillo's assault offenses constitute crimes of violence under the force clause of § 924(c)(3)(A) and that he was sentenced without resort to the residual clause of § 924(c)(3)(B). (CV Doc. 20 at 3-7, ¶¶ 5-8; CR Doc. 58 at 3-7, ¶¶ 5-8). The United States did not object to the PFRD.

         2. Legal Standards Governing Objections to the Magistrate Judge's Proposed Findings and Recommended Disposition

         Under 28 U.S.C. § 636(b)(1)(C), the Court conducts a de novo review of any objections to the Magistrate Judge's PFRD. To resolve an objection to the PFRD, the Court “must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). A party's objections to the PFRD must be “both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). An objection must be sufficient to focus the Court on the factual and legal issues actually in dispute. Id. at 1060. Issues raised for the first time in an objection to the PFRD are deemed waived. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

         The Court finds that Movant Castillo's Objections were timely filed within the extension of the deadline granted by the Court. The Court also finds that Castillo's objections are sufficiently specific to ...


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