GREGORY J. FOURATT, Magistrate Judge.
This matter is before me on Petitioner's Motion to Correct the Sentence Pursuant to 28 U.S.C. § 2255. Doc. 1
On December 19, 2006, Petitioner was charged by criminal complaint with robbing the Bank of America branch at 3101 Carlisle Boulevard NE, in Albuquerque, in violation of 18 U.S.C. § 2113(a). Cr. Doc. 1. On January 9, 2007, a federal grand jury returned a one-count indictment charging him with the same offense. Cr. Doc. 10. On March 22, 2007, Petitioner pleaded guilty to the indictment pursuant to a written plea agreement. Cr. Docs. 20, 22.
In the plea agreement, Petitioner acknowledged that the maximum sentence for his offense included "imprisonment for a period of not more than 20 (twenty) years" and that the U.S. Sentencing Guidelines (hereafter U.S.S.G.) were advisory only. Cr. Doc. 22 at 2. The parties stipulated that Petitioner was entitled to a guideline reduction for acceptance of responsibility. Id. at 4. The United States promised not to oppose a sentence at the low end of the adjusted guideline range. Id. The plea agreement also featured Petitioner's acknowledgements about the extent of the Court's sentencing discretion:
Id. at 5.
The only other provision of the plea agreement that is relevant to the instant Motion was the "Factual Basis" admitted by Petitioner:
On April 27, 2007, U.S. Probation Officer Teressa Ray Pena disclosed her Presentence Investigation Report (hereafter "PSR").
On June 21, 2007, the Court held a sentencing hearing. Cr. Doc. 24. A copy of the transcript of that hearing is appended hereto as Attachment 1. At the outset of the hearing, Petitioner affirmed that all of the statements of fact included in the report were true and correct. Tr. at 2. The Court thereupon "adopt[ed] as factual findings of the court all of the factual statements in [the] Presentence Report." Id. Apart from asking the Court to vary from the adjusted guideline range, neither Petitioner nor his counsel objected to any portion of the PSR, whether factual, legal, or otherwise. Petitioner's counsel acknowledged that there had been no written request for variance submitted prior to the hearing, even though such a request was not precluded by the plea agreement. Id. at 4-5. The Court sentenced Petitioner to a prison term of 151 months, the bottom of the adjusted guideline range. Id. at 6. There was no discussion at the hearing about whether, how, or why Petitioner qualified as a career offender under § 4B1.1.
The Court filed its judgment on June 22, 2007. Cr. Doc. 25. Having waived his right to appeal, Cr. Doc. 22 at ¶ 12, Petitioner did not appeal his sentence.
The instant Motion is Petitioner's first attempt to collaterally attack his sentence. He argues that each of the offenses on which his designation as a career offender was based no longer qualify as "crimes of violence" in light of Johnson v. United States, 559 U.S. 133 (2010) (Johnson I) and Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson II). Doc. 1 at 2. He contends that the Johnson II decision should be applied retroactively to reduce the sentencing guideline range for his 2006 bank robbery offense from 151-188 months to 63-78 months. Id. at 1.
Because of my view that the application of Johnson II to the guidelines should not be given retroactive effect, and because both federal bank robbery and New Mexico state robbery remain crimes of violence under U.S.S.G. § 4B1.2(a) irrespective of Johnson I or II, I recommend denying the Motion.
In Johnson II, the Supreme Court held that the residual clause of the definition of "violent felony" under the Armed Career Criminal Act ("ACCA") is unconstitutionally vague. 135 S. Ct. at 2563. Until its demise, the residual clause appeared at the end of 18 U.S.C. § 924(e)(2)(B)(ii), which read: "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)(ii) (2012) (emphasis added). In so holding, the Supreme Court ruled that individuals could not be subject to the ACCA if any of their three requisite prior convictions qualified as "violent felonies" only under the invalidated residual clause. 135 S. Ct. at 2563. Then, in Welch v. United States, the Supreme Court announced that Johnson II would apply retroactively to ACCA cases on collateral review, reasoning that Johnson II announced a new substantive rule. 136 S.Ct. 1257, 1264-65 (2016).
Here, Petitioner was not sentenced as an "armed career criminal" under the ACCA, but rather a "career offender" under § 4B1.1 of the advisory Sentencing Guidelines. That provision considerably increases the offense level for an adult offender being sentenced for a "crime of violence," as that term is defined in § 4B1.2(a), and who has at least two prior convictions for qualifying "crimes of violence."
In order to be entitled to resentencing, Petitioner must still establish that the residual clause of the guideline provision is also unconstitutionally vague, and that his sentence was enhanced pursuant to that clause. In United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir. 2015), the Tenth Circuit held on direct appeal that the residual clause in § 4B1.2 was just as unconstitutionally vague as its ACCA counterpart. The United States does not contest this point.
The question of retroactivity is governed by the now-familiar framework set out in Teague v. Lane, 489 U.S. 288, 309-13 (1989) (plurality opinion). "[A]s a general matter, `new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.'" Welch, 136 S. Ct. at 1264 (quoting Teague, 489 U.S. at 310). There are two exceptions to this general rule: first, "new substantive rules generally apply retroactively," id. (quoting Schriro v. Summerlin, 542 U.S. 348, 351 (2004)) (alterations and emphasis omitted); and second, "new `watershed rules of criminal procedure,' which are procedural rules `implicating the fundamental fairness and accuracy of the criminal proceeding,' will also have retroactive effect." Id. (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)).
The threshold question, therefore, is whether the application of Johnson to the guidelines constitutes a new substantive rule or a new procedural rule. "A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes." Schriro, 542 U.S. at 353. "This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish." Id. at 351-52 (citations omitted). By contrast, procedural rules "regulate only the manner of determining the defendant's culpability[.]" Id. at 353 (emphasis omitted). Thus, rules that alter "the range of permissible methods for determining whether a defendant's conduct is punishable" by "allocating decisionmaking authority" are procedural. Id. Procedural rules also do not create a class of persons convicted of conduct that is not lawfully criminalized, "but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise." Id. at 352.
Under this framework, the Supreme Court concluded that Johnson II's invalidation of the ACCA's residual clause was a new substantive rule because it "changed the substantive reach of the Armed Career Criminal Act . . . ." See Welch, 136 S. Ct. at 1265. As the Court explained,
Id. (quotation and citations omitted).
In contrast, the invalidity of a given sentencing guideline provision is not nearly so material, for while it may change an advisory guideline range, it will not change the maximum or minimum sentence authorized by statute. Consequently, a sentence imposed — even when predicated upon a guideline provision later held invalid — will never exceed the statutorily authorized sentence for the crime of conviction. Thus, such a sentence is not unlawful. See Sun Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011) (en banc) (on collateral review, court upheld 360-month sentence imposed following an erroneous determination that defendant was a career offender pursuant to the sentencing guidelines, concluding such sentence was "not unlawful" because "[a]n unlawful or illegal sentence is one imposed without, or in excess of, statutory authority"). In other words, unlike in Johnson II, where the ACCA both imposed a statutory minimum sentence and increased the statutory maximum sentence, the sentence imposed using the problematic guideline provision can indeed be "legitimate[d]" merely by a judge's determination that the sentence was still appropriate. Welch, 136 S. Ct. at 1265; see United States v. Booker, 543 U.S. 220, 246 (2005) (sentencing guidelines are advisory). Therefore, a rule that would apply Johnson II to invalidate the U.S.S.G. § 4B1.2(a)(2) residual clause has none of the characteristics of a "substantive" rule change under Teague.
After all, the Supreme Court itself has classified errors in calculating the advisory guidelines range as "procedural." See, e.g., Peugh v. United States, 133 S.Ct. 2072, 2083 (2013) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). This characterization is accurate because the calculation of a defendant's offense level is just the first step in a multi-step sentencing procedure. Importantly, while "a sentence within the applicable Guidelines range is presumptively reasonable[,]" United States v. Terrell, 445 F.3d 1261, 1264 (10th Cir. 2006), this presumption is only an appellate presumption, not one that a trial court can or should indulge. See Rita v. United States, 551 U.S. 338, 347-48 (2007); Gall, 552 U.S. at 40-41; Kimbrough v. United States, 552 U.S. 85, 90-91 (2007). The sentencing court must assess the statutory factors under 18 U.S.C. § 3553(a) without any presumption in favor of the advisory guideline sentence. See Rita, 551 U.S. at 351; Gall, 552 U.S. at 40; Kimbrough, 552 U.S. at 90-91. Consequently, if Johnson II now invalidates all enhancements stemming from the § 4B1.2(a)(2) residual clause, that new rule merely alters one non-binding and non-determinative step in the sentencing process. As such, the new rule is best described as procedural. See Hawkins II v. United States, 724 F.3d 915, 917-18 (7th Cir. 2013) (holding that "errors in applying advisory guidelines are procedural," and opining that a new rule that erroneously sentencing a defendant under current guidelines rather than less punitive guidelines in effect at the time of offense is a violation of the Ex Post Facto Clause would therefore not be applied retroactively under Teague).
If the application of Johnson II to the guidelines is a procedural rule, it can only be applied retroactively if it constitutes a "watershed" rule of criminal procedure. Saffle, 494 U.S. at 495. To do so, "the rule must not only improve the accuracy with which defendants are convicted or acquitted, but also alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." United States v. Mora, 293 F.3d 1213, 1218-19 (10th Cir. 2002) (citation, quotation, and emphasis omitted). This exception is a narrow one. Johnson v. McKune, 288 F.3d 1187, 1197-98 (10th Cir. 2002). Watershed rules are on the magnitude of the rule announced in Gideon v. Wainwright, 372 U.S. 335 (1963). Mora, 293 F.3d at 1219 (citing Saffle, 494 U.S. at 495).
Describing the constitutional heft a procedural rule must have to graduate to "watershed" status is assisted to some extent by pointing to decisions that were held not to be of watershed quality. For example, the Tenth Circuit has held that Apprendi v. New Jersey, 530 U.S. 466 (2000), which upended federal charging practice by holding that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt, did not qualify as a watershed decision. See Mora, 293 F.3d at 1219. The same is true for Booker, even though its seismic effect revolutionized federal sentencing. See United States v. Bellamy, 411 F.3d 1182, 1186-88 (10th Cir. 2005) (Booker constituted a non-watershed procedural rule under Teague analysis). Compared against Apprendi and Booker, the application of Johnson II to the advisory guidelines is not a watershed procedural rule.
Because the application of Johnson II to the guidelines would be a non-watershed procedural rule, it would not have retroactive effect to Petitioner's sentence. Therefore, I recommend denying the Motion on that ground alone. If the Court agrees, then the Court need not reach Petitioner's other arguments about whether his prior convictions nonetheless qualify as crimes of violence under the force prong of U.S.S.G. § 4B1.2(a)(1) or because they are enumerated in the commentary to § 4B1.2. Nonetheless, I continue my analysis in the event the Court disagrees or desires to rule in the alternative on the remaining issues.
One question that must be answered is whether the residual clause was used at all in characterizing Petitioner's federal bank robbery and New Mexico state robbery convictions as "crimes of violence." After all, if these convictions qualify as "crimes of violence" under the "force" prong of § 4B1.2(a)(1) or because robbery is specifically enumerated in the commentary to § 4B1.2, then the residual clause of § 4B1.2(a)(2) (and, by extension, the Johnson II decision) is not relevant. More ominous for the Petitioner, if his predicate convictions qualified under the force prong or because robbery is specifically enumerated, then Johnson II did not endow Petitioner with a new claim of relief and his Motion may well be inexcusably tardy under 28 U.S.C. § 2255(f) because it was filed well more than a year after it could and should have been.
Unfortunately, the short answer to the question of whether the residual clause applies at all to Petitioner's sentence is that we cannot tell. As set forth supra at 3-4, there was no mention at the plea or sentencing hearing, or in the plea agreement, PSR, or judgment, of exactly how Petitioner's convictions for bank robbery and New Mexico robbery qualified as crimes of violence under § 4B1.2(a).
To his credit, and understanding the analytical dilemma now facing the Court, Petitioner argues that none of his three predicate convictions qualify as crimes of violence under the force prong. See, e.g., Doc. 1 at 10-15 (bank robbery) and 18-25 (state robbery). Petitioner then asks the Court to infer that these convictions could have been classified as crimes of violence only because of the residual clause of § 4B1.2(a)(2). And he discards the inclusion of bank robbery as an enumerated crime in the guideline commentary by contending that the commentary amplifies only the now-invalidated residual clause. See, e.g., id. at 15-18. For its part, the Government contends that Petitioner's bank robbery and New Mexico robbery convictions qualify as crimes of violence either under the force prong of § 4B1.2(a)(1) or because robbery is a specifically-enumerated offense in the commentary to § 4B1.2. See Doc. 8. I examine first whether federal bank robbery qualifies as a crime of violence irrespective of the residual clause, before turning my attention to the New Mexico state robbery statute.
Petitioner argues that bank robbery under 18 U.S.C. § 2113(a) is not categorically a crime of violence because it can be committed merely "by intimidation." He further contends that, no matter how serious, "intimidation" stops short of the "violent force" the Supreme Court has required for crimes to satisfy the force prong since 2010. Doc. 1 at 11 (citing Johnson I, 559 U.S. at 140).
In support of his argument, Petitioner cites United States v. Lajoie, 942 F.2d 699 (10th Cir. 1991), ostensibly for its recitation of the elements of § 2113(a). Doc. 1 at 11. In attempting to describe the breadth of how the Tenth Circuit has defined the term "by intimidation" under that statute, Petitioner includes this parenthetical excerpt: "intimidation is simply an act by an accused reasonably calculated to put another in fear." Id. (citing Lajoie, 942 F.2d at 701 n.5). The problem with this excerpt, however, is that it is truncated and stops before the Tenth Circuit did. The full footnote reads as follows:
Aside from the fact that Lajoie does not afford Petitioner with the refuge he attributes to it, federal law is becoming increasingly replete with decisions that bank robbery committed "by intimidation" remains a crime of violence after Johnson I and Johnson II. Although the Tenth Circuit has apparently not yet weighed in on the issue, at least three other circuits have. See United States v. McBride, 826 F.3d 293, 295-96 (6th Cir. 2016); United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016); United States v. Jenkins, 2016 WL 3101281, at *4 (11th Cir. June 3, 2016); see also United States v. Boman, 810 F.3d 534, 542-43 (8th Cir. 2016) (robbery under 18 U.S.C. § 2111, which must be done "by force and violence, or by intimidation," satisfies the force clause under 18 U.S.C. § 924(e)(2)(B)(i)).
The Sixth Circuit's decision in McBride is particularly instructive on the issue of whether bank robbery "by intimidation" is a crime of violence under the force prong:
826 F.3d at 295-96 (italics in original).
The Fourth Circuit sings in chorus:
McNeal, 818 F.3d at 153.
Given this unanimity of authority, I recommend that the Court conclude that bank robbery "by intimidation" under 18 U.S.C. § 2113(a) is a crime of violence because it "has as an element the use, attempted use, or threatened use of physical force against the person of another[.]" U.S.S.G. § 4B1.2(a)(1).
Separately and alternatively, I recommend that the Court conclude that bank robbery is a crime of violence under § 4B1.2(a) because it meets the generic definition of robbery as that offense is enumerated in the guideline commentary. See U.S.S.G. § 4B1.2, comment. (n.1) (defining "crime of violence" as including robbery).
When an offense is specifically enumerated as a crime of violence, a court ordinarily compares the elements of the crime of conviction to the generic form of the offense to determine whether the conviction qualifies as a crime of violence. See United States v. Castillo, 811 F.3d 342, 345 (10th Cir. 2015). Generic robbery is the unlawful taking of property from another person or from the immediate presence of another by force or intimidation. See United States v. Lockley, 632 F.3d 1238, 1244 (11th Cir. 2011) (quoting United States v. Walker, 595 F.3d 441, 446 (2d Cir. 2010)); United States v. Tellez-Martinez, 517 F.3d 813, 815 (5th Cir. 2008) (explaining that generic robbery "contain[s] at least the elements of misappropriation of property under circumstances involving [immediate] danger to the person"); Robbery, BLACK'S LAW DICTIONARY (10th ed. 2014) (stating that robbery is "[t]he illegal taking of property from the person of another, or in the person's presence, by violence or intimidation"); see also United States v. Aguilar-Ramos, 645 F. App'x 777 (10th Cir. 2016) (unpublished) (citing 67 AM. JUR. 2d, Robbery § 26) ("Any force, violence, or threat, no matter how slight, is sufficient to sustain a robbery conviction if it . . . prevents or overcomes resistance to the property's taking or retention.").
The Eleventh Circuit recently examined whether bank robbery by intimidation under § 2113(a) matched the generic definition of robbery as that term is understood in Application Note 1 to U.S.S.G. § 4B1.2:
United States v. Jenkins, 2016 WL 3101281, at *4 (11th Cir. June 3, 2016) (emphasis in original).
For the foregoing reasons, I recommend that the Court conclude that bank robbery by intimidation under § 2113(a) matches the generic definition of robbery. In so doing, the Court necessarily would also conclude that bank robbery by intimidation is a crime of violence as set forth in Application Note 1 to U.S.S.G. § 4B1.2(a). See also United States v. O'Conner, 2016 WL 4273199 (D. Kan. Aug. 15, 2016) (finding aiding and abetting Hobbs Act robbery to be crime of violence under Application Note 1 to § 4B1.2).
The parties agree that Petitioner was twice convicted of robbery in violation of N.M.S.A. § 30-16-2, which provides:
N.M.S.A. § 30-16-2 (1978) (emphasis added). The parties further agree that Petitioner's two 1989 robbery convictions as set forth in ¶¶ 41-42 of the PSR were for unarmed or simple robbery.
Petitioner argues that his 1989 convictions for New Mexico state robbery do not qualify as crimes of violence under § 4B1.2(a). His sole claim — apart, of course, from his argument that the residual clause is invalid and retroactively so — is that New Mexico's robbery statute does not satisfy the force prong of § 4B1.2(a)(1) because that crime can be committed with a level of force beneath the "violent physical force" required by Johnson I. See Doc. 1 at 18-19. He asserts that one can be convicted of violating our state robbery statute with only the "slightest physical contact," which he emphasizes is well beneath the bar set by Johnson I. Id. at 19.
To determine whether a prior conviction qualifies as a crime of violence under § 4B1.2(a)(1), a court must apply the categorical approach, focusing on the elements of the crime of conviction, not the underlying facts. See Madrid, 805 F.3d at 1207 (citing Descamps v. United States, 133 S.Ct. 2276, 2283 (2013)). Whether a statute "has as an element the use, attempted use, or threatened use of physical force against the person of another" requires an examination of both federal and New Mexico state law. See United States v. Harris, No. 16-1237, 2017 WL 34458, at *6 (10th Cir. Jan. 4, 2017). "Federal law defines the meaning of the phrase `use, attempted use, or threatened use of physical force'" and "state law defines the substantive elements of the crime of conviction." Id. (citing Johnson I, 559 U.S. at 138 and Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)).
In holding that the Colorado state robbery statute qualified under the force clause as a violent felony under the ACCA, the Tenth Circuit clarified what a federal court must do when examining a state statute for the same or similar reasons:
Harris, 2017 WL 34458, at *7 (emphasis in original).
In contending that the New Mexico state robbery statute does not satisfy the force clause of § 4B1.2(a), Petitioner zeroes in on that clause's inclusion of the phrase "physical force." Doc. 1 at 18-26. As commanded by Harris, I must first ascertain how federal law defines that term, a task made substantially easier by the Harris decision itself. Relying heavily on Johnson I, the Tenth Circuit held that "physical force means violent force, or force capable of causing physical pain or injury to another person[.]" Harris, 2017 WL 34458, at *11. The Tenth Circuit emphasized, however, that the Supreme Court contemplated as an example of such force "a slap in the face." Id. at 10 (quoting Johnson I, 559 U.S. at 143). The Tenth Circuit also cited with favor Justice Scalia's concurring opinion in United States v. Castleman, 134 S.Ct. 1405, 1421 (2014), in which he stated that "force `capable of causing physical pain or injury' includes such conduct as `[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling.'" Id.
With that understanding of the federal definition of "physical force," I turn next to the crux of Petitioner's complaint: whether the level of force required to be convicted of New Mexico state robbery matches or exceeds the baseline level established by Johnson I and Harris. To begin, it is worth emphasizing that New Mexico courts have made clear that the "use or threatened use of force" must be against the person of another to satisfy this element. See, e.g., State v. Bernal, 146 P.3d 289, 296 (N.M. 2006); State v. Curley, 939 P.2d 1103, 1106 (N.M. Ct. App. 1997). The New Mexico Supreme Court has instructed that, in contrast to the statute criminalizing larceny, the robbery statute "is clearly designed to protect citizens from violence . .. [r]obbery is not merely a property crime, but a crime against a person." Bernal, 146 P.3d at 296. The New Mexico Court of Appeals has similarly explained that the requirement that property be taken with sufficient force "so as to overcome the resistance of attachment" before larceny is elevated to robbery is intended to reflect "the increased danger to the person that robbery involves over the offense of larceny." Curley, 939 P.2d at 1106.
But is the amount of force required under the New Mexico robbery statute categorically sufficient to meet the standard outlined in Johnson I and Harris? In other words, does New Mexico require a person before being convicted of robbery to have used, attempted to use, or threatened force that is "capable of causing physical pain or injury to another person?" For the following reasons, I conclude the answers to both questions are in the affirmative.
The state law jurisprudence regarding the statute instructs that "[t]he use of force, violence, or intimidation is an essential element of robbery." State v. Lewis, 867 P.2d 1231, 1233 (N.M. Ct. App. 1993). "The force or intimidation is the gist of the offense." State v. Sanchez, 430 P.2d 781, 782 (N.M. Ct. App. 1967). The phrase "or violence," as used in the statute, "do[es] not substantively state an alternative means of committing the offense[.]" Curley, 939 P.2d at 1104. State courts in New Mexico thus use the terms "force" and "violence" interchangeably when discussing whether the force element of the statute has been met by an offense. See id.
The force or fear required under the state robbery statute "must be the moving cause inducing the victim to part unwillingly with his property. It must overcome the victim's resistance. It must compel one to part with his property. It must be such that the power of the owner to retain his property is overcome." Sanchez, 430 P.2d at 782 (internal citations omitted). The "use of force to retain property or to facilitate escape does not satisfy the force element necessary for the crime of robbery." Lewis, 867 P.2d at 1233-34 (emphasis added). Rather, "the use or threatened use of force must be the factor by which the property is removed from the victim's possession." Id. at 1233. For example, the Curley court concluded that the defendant was entitled to an instruction on the lesser included offense of larceny even though he shoved the victim before taking her purse, because the jury could have found that the shove was accidental, inadvertent, and wholly independent of the taking, and that the defendant thus "took the purse by surprise from a person who was not resisting, and not by force necessary to overcome any resistance." 939 P.2d at 1107.
Whether the force employed during a larceny is sufficient to elevate the offense to robbery requires an evaluation by the fact-finder. See State v. Clokey, 553 P.2d 1260, 1260 (N.M. 1976) ("The question of whether or not the snatching of the purse from the victim was accompanied by sufficient force to constitute robbery is a factual determination, within the province of the jury's discretion."). De minimis force will not sustain a robbery conviction. See Curley, 939 P.2d at 1105 ("[W]hen no more force is used than would be necessary to remove property from a person who does not resist, then the offense is larceny, and not robbery."). Mere "touching or jostling," or even the more overtly forceful act of pressing a fist into the victim's back while stealing his property, are all insufficient to establish the force element; such circumstances support only the lesser conviction of larceny. Sanchez, 430 P.2d at 782.
In older cases, New Mexico courts have said "in dictum that even a slight amount of force, such as jostling the victim or snatching away the property is sufficient" force for a robbery conviction. Curley, 939 P.2d at 1104 (citing State v. Martinez, 513 P.2d 402, 403 (N.M. Ct. App. 1973)). However, the Curley opinion makes clear that the property must be taken with sufficient force to "overcome the resistance of attachment." Id. at 1105-06. Importantly, the Curley court explained that the distinction between robbery and larceny does not hinge on "[s]ubtle differences in the amount of force used, alone[.]" Rather, the court explained that "if we remember that the reason for the distinction is the increased danger to the person" accompanying the crime of robbery, "then an increase in force that makes the victim aware that her body is resisting could lead to the dangers that the crime of robbery was designed to alleviate[,]" such as violent altercations or confrontations. Curley, 939 P.2d at 1103.
Consequently, under New Mexico law, the essential purpose of the robbery statute is to prevent the possibility of dangerous and violent altercations that arise when enough force is used to create an occasion for confrontation. As the Supreme Court of New Mexico has explained, "robbery is a crime designed to punish the use of violence" and "to protect citizens from violence." Bernal, 146 P.3d at 296.
The analysis set forth by the Curley court regarding the force element of New Mexico robbery directly parallels the rationale in Ramon Silva, in which the Tenth Circuit Court of Appeals held that "apprehension causing" aggravated assault is categorically a "violent felony" under the "threatened use of force" prong of the ACCA force clause. 608 F.3d at 670-71. There, the court reasoned that the conduct proscribed by the offense "threatens the use of `violent' force because by committing such an act, the aggressor communicates to his victim that he will potentially use `violent force' against the victim in the near-future," and because such conduct "always has the potential" to lead to violent force. Id. (emphasis added). Therefore, the force required in New Mexico to establish the crime of simple robbery must at the very least satisfy the "threatened use" prong of the § 4B1.2(a) force clause, given that state law has established that the elements of the statute require actual or potential violent force. It thus qualifies as a crime of violence under that guideline.
Although I have recommended that the Court hold that New Mexico robbery satisfies the force clause of § 4B1.2(a)(1), I further recommend that the Court alternatively hold that New Mexico robbery is also a crime of violence because "robbery" is specifically enumerated in the commentary to § 4B1.2.
Under the 2005 version of the Sentencing Guidelines, the commentary accompanying § 4B1.2 stated: "For purposes of this guideline . . . . `Crime of violence' includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." § 4B1.2 cmt. n.1 (emphasis added).
The government argues that Petitioner's prior convictions for robbery under § 30-16-2 qualify as crimes of violence independent of the residual clause, emphasizing that robbery is among the offenses enumerated in the guidelines' commentary. Doc. 8 at 2-3. The government largely bases its argument on Judge Browning's opinion in United States v. Barela, CR-15-3550 JB, Doc. 44, which itself relied on the Tenth Circuit's opinion in Madrid, 805 F.3d at 1204, to reach the same conclusion. Doc. 8 at 2-3. Drawing on Barela and Madrid, the government asserts that the commentary accompanying § 4B1.2 enumerates robbery as per se a "crime of violence." Id. at 3. The government further argues by reference to Judge Browning's decision in Barela that New Mexico's robbery statute adheres to the generic definition of robbery. Id. Therefore, the government concludes, New Mexico robbery is a qualifying crime of violence under the Guidelines. Id. at 3-4.
Petitioner challenges this interpretation. While acknowledging that robbery is listed in the commentary to § 4B1.2, Petitioner contends that the offenses enumerated in the commentary do not provide independent bases on which an underlying offense can qualify as a crime of violence. Petitioner emphasizes that "Guideline commentary is only authoritative insofar as it [is] [sic] consistent with the congressionally approved text of the Guidelines itself." Doc. 1 at 15-16 (citing Stinson v. United States, 508 U.S. 36, 38, 40-41 (1993)). He further posits that the commentary's reference to robbery "clearly cannot be interpreting or explaining the force clause because robbery does not require the intentional use or threat of violent physical force against another person." Id. at 16 (citation omitted).
For support for this proposition, Petitioner relies primarily on United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016). There, the court held that "in light of the government's concession that Johnson invalidates the residual clause in Guidelines § 4B1.2(a)(2), Application Note 1 has become inconsistent with the remaining text of the Guideline itself." Id. at 62. But the greater weight of extra-circuit authority seems to go the other way. See United States v. Jeffries, 822 F.3d 192 (5th Cir. 2016) (after excising residual clause, holding aggravated assault to be crime of violence because of its enumeration in guideline commentary); Beckles v. United States, 616 F. App'x 415 (11th Cir. 2015) (same for possession of sawed-off shotgun). In addition, having issued its decision in January 2016, the Soto-Rivera panel could not have benefited from the United States Supreme Court's November 2016 oral argument in Beckles. During that argument, one or more of the justices seemed to embrace the notion that the commentary's enumeration of a crime as a crime of violence was in and of itself sufficient to dispose of the appeal.
There is still another reason that the Court should be reluctant to invalidate Application Note 1 to § 4B1.2 in its entirety: the Tenth Circuit has at least tacitly recognized its continuing viability and the need for sentencing courts to continue to analyze the crimes enumerated therein against their generic counterparts. In Madrid, the Tenth Circuit considered whether the defendant's prior conviction for statutory rape qualified as a crime of violence under the guidelines. 805 F.3d at 1206. The court instructed that the prior offense would qualify as a crime of violence if: "(1) it `has as an element the use, attempted use, or threatened use of physical force against the person of another'; [or] (2) it is one of the offenses enumerated in the Guidelines or accompanying commentary as a crime of violence." Id. at 1207 (quoting § 4B1.2(a)). The court first concluded that the statute of conviction did not fall under the force clause. Id. at 1207-08. It then analyzed whether the underlying statutory rape law qualified under one of the crimes enumerated in the commentary to § 4B1.2, "forcible sex offenses." Id. at 1208. The court ultimately concluded that the Texas law encompasses non-forcible acts and thus is broader than the enumerated offense. Id. at 1208-09. The court went on to conclude that the underlying offense could not qualify under the residual clause because that clause was unconstitutionally vague following Johnson. Id. at 1210.
That the Tenth Circuit embarked on its comparison of elements at all is momentous. In so doing, the Tenth Circuit set out a rule specifically acknowledging the offenses enumerated in the commentary and conducted a robust analysis—the same analysis that courts deploy in comparing an underlying statute against the offenses enumerated in § 4B1.2(a)(2)—in making its determination. 805 F.3d at 1208-09. The court gave no indication that a further level of analysis would be required. It noted simply that "[b]ecause the statute under which Madrid was convicted does not necessarily require force or coercion, we hold that Madrid's conviction does not qualify as a forcible sex offense." Id. at 1210. The only logical conclusion to be drawn from the Madrid court's analysis is the one Judge Browning drew in Barela: underlying convictions may qualify as crimes of violence based on the crimes enumerated in the commentary to § 4B1.2.
Robbery is an offense enumerated in the commentary to the Guidelines. The New Mexico robbery statute qualifies as an enumerated crime of violence if its elements align with the generic definition of robbery—if they are the same as, or narrower than, those of the generic offense. See Mathis v. United States, 136 S.Ct. 2243, 2247 (2016). Generic robbery is defined as the "trespassory taking and carrying away of the personal property of another with the intent to steal it, where that property is taken from the person or presence of the other, and the taking is accomplished by means of force or putting in fear." Barela, 2016 WL 5395275, at *2. The government broadly asserts that New Mexico robbery adheres to the generic, common-law definition of robbery. Doc. 8 at 3. As did Judge Browning, I conclude that New Mexico robbery qualifies as the enumerated offense of robbery in the commentary accompanying § 4B1.2. I further conclude that there is no realistic probability that the New Mexico courts would interpret robbery in a manner that would sever this correspondence in the future. Consequently, New Mexico's robbery statute, NMSA 1978, § 30-16-2, qualifies as an enumerated crime of violence under the Guidelines' commentary, irrespective of the residual clause. See Contreras v. United States, Magistrate Judge's Proposed Findings and Recommended Disposition, Doc. 12 at 8-18 in 16-cv-0671 RB/SMV (D.N.M. Dec. 6, 2016) (concluding that New Mexico simple robbery qualifies as a predicate conviction because its elements match those of generic robbery under Application Note 1 to § 4B1.2(a)).
For the foregoing separate and alternative reasons, I recommend that the Court conclude that Petitioner's convictions under N.M.S.A. § 30-16-2 are categorically "crimes of violence" under U.S.S.G. § 4B1.2 even without reference to its discarded residual clause. As such, even after Johnson I and II, Petitioner's robbery convictions were properly used to enhance his sentencing guidelines pursuant to that provision. Therefore, I recommend denying Petitioner's motion on that ground.
The Court should hold that the application of Johnson to the guidelines does not have retroactive effect under the Teague analysis because it is a non-watershed procedural rule. Therefore, I recommend denying Petitioner's motion on that ground.
Should the Motion not be denied for that reason, the Court should consider whether Petitioner's convictions for federal bank robbery and New Mexico robbery remain "crimes of violence" under U.S.S.G. § 4B1.2(a), even after excising its residual clause. Pursuant to the preceding discussion, I recommend concluding that they do and, therefore, that Petitioner's motion be denied on that ground.
