WILLIAM P. JOHNSON, UNITED STATES DISTRICT JUDGE.
THIS MATTER comes before the Court upon the Proposed Findings and Recommended Disposition ("PFRD") entered by Magistrate Judge Lourdes A. Martinez on April 13, 2017. In accordance with 28 U.S.C. § 636(b)(1)(B), Judge Martinez recommended denying Defendant's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255, [Doc. No. 11], to which Defendant timely objected on June 8, 2017.
On September 24, 2014, Defendant pled guilty to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g). [Cr. Doc. No. 35]. Although such a charge generally carries a maximum sentence of ten years, 18 U.S.C. § 924(b), Defendant had previously been convicted of three or more violent felonies; namely, two convictions for armed bank robbery in the United States District Court for the District of New Mexico, and three convictions for armed robbery in the Second Judicial District Court for the State of New Mexico. These prior convictions made Defendant subject to the Armed Career Criminal Act ("ACCA") and its accompanying fifteen year mandatory minimum sentence. 18 U.S.C. § 924(e)(1). Consequently, Defendant agreed to an enhanced sentence totaling fifteen years, and he was so sentenced on May 5, 2015. [Cr. Doc. No. 46].
Less than sixty days later, on June 26, 2015, the United States Supreme Court issued its decision in Johnson v. U.S., ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), wherein it struck down the residual clause of the ACCA as unconstitutional. This decision was the catalyst to Defendant's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255, filed narrowly within the one year limitations period on June 15, 2016. [Doc. No. 1]. See 28 U.S.C. § 2255(f)(3) (explaining that motions under 28 U.S.C. § 2255 must be filed within one
In his motion, Defendant argues that in light of Johnson, his New Mexico armed robbery convictions do not qualify as "violent felonies" under 18 U.S.C. Section 924(e)(2)(B), and he moves the Court to correct his sentence accordingly.
Any portion of a magistrate judge's disposition to which a party objects must be determined, de novo, by the referring district judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Here, Defendant objects to Magistrate Judge Martinez's conclusion that an armed robbery conviction under New Mexico's robbery statute constitutes a "violent felony" for the purposes of the ACCA. This particular issue is shrouded in controversy as there is no concurrence amongst our District Court judges and the Tenth Circuit has yet to consider New Mexico's robbery statute post-Johnson. See, e.g., United States v. King, No. CV 16-501 MV/KK, 248 F.Supp.3d 1062, 2017 WL 1506766 (D.N.M. Mar. 31, 2017) (holding that armed robbery in New Mexico is not a "violent felony" under the ACCA); United States v. Garcia, No. CV 16-0240 JB/LAM, 2017 WL 2271421 (D.N.M. Jan. 31, 2017) (concluding that robbery constitutes a "violent felony" as contemplated by the ACCA).
Pursuant to the ACCA, one who violates 18 U.S.C. § 922(g) and has three prior convictions for violent felonies shall be imprisoned for a term no less than fifteen years. 18 U.S.C. § 924(e)(1). The Act defines the term "violent felony," in pertinent part, as "any crime punishable by imprisonment for a term exceeding one year" that either:
18 U.S.C. § 924(e)(2)(B). This two-part definition actually comprises three distinct clauses: (1) the "force clause" which accounts for the entirety of § 924(e)(2)(B)(i); (2) the "enumerated offenses clause" which specifically identifies burglary, arson, extortion, and the use of explosives as violent felonies, § 924(e)(2)(B)(i)(ii); and (3) the now defunct "residual clause" which, as its designation implies, provides the catchall language of "or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id.
In the aftermath of Johnson, 135 S.Ct. 2551, see supra pp. 1332-33, crimes not named in the enumerated offenses clause — such as robbery and armed robbery — must fall under the force clause to qualify as violent felonies for ACCA purposes. See id. at 2563 (holding the residual clause of the ACCA unconstitutional while affirming the application of the Act to the remaining clauses). Accordingly, to determine whether Defendant's armed robbery conviction qualifies as a violent felony, the
Although not defined in § 924(e)(2)(B)(i), the United States Supreme Court has made clear that the term "physical force," as used in the context of the force clause, means "violent force — that is, force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). The Johnson Court went on to differentiate bodily injury from physical force, explaining that the latter "might consist ... of only that degree of force necessary to inflict pain — a slap in the face, for example." Id. at 143, 130 S.Ct. 1265.
To engage in the required inquiry, courts employ a categorical approach which looks to the elements of the statute of conviction and asks whether the crime's elements, alone, satisfy the ACCA's definition of violent felony. Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). A modified categorical approach is applied when the statute of conviction sets out one or more elements of the offense in the alternative. In such a case, the statute is deemed "divisible" and a court may examine certain documents from the record to determine under which elements of the offense the defendant was convicted. United States v. Titties, 852 F.3d 1257, 1266 (10th Cir. 2017). The identified elements are then analyzed under the unmodified categorical framework. Id.
In the case at bar, Defendant was convicted of armed robbery under N.M. Stat. Ann. § 0-16-2 which provides:
As the statutory alternatives of robbery and armed robbery carry different punishments, the statute is divisible and the modified categorical approach applies.
Citing Mathis, Defendant inaccurately argues that "the modified categorical approach is never used when the elements of a stated offense, such as robbery, "are broader than those of a listed generic offense." 136 S.Ct. at 2251." [Doc. 15, p. 20]. Mathis, however, explores a statute which enumerates multiple means of committing the same element; the cited language has no relevance to the application of the modified categorical approach. Mathis, 136 S.Ct. 2243, 2249 (2016).
Similarly, Defendant relies upon United States v. Barraza-Ramos, 550 F.3d 1246 (10th Cir. 2008), for the proposition that because armed robbery has simple robbery as an element, the Court must first determine whether simple robbery is a categorical match to the definition of violent felony. This, too, is misguided. In Barraza-Ramos, the Tenth Circuit was tasked with determining whether one convicted of aggravated battery under Fla. Stat. § 784.045(1)(b), which criminalizes the knowing battery of a pregnant victim, qualified as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). In so doing, the Court was required to first consider whether simple battery has "as an element the use, attempted use, or threatened use of physical force against another person." Barraza-Ramos, 550 F.3d 1246, 1251 (10th Cir. 2008). There, however, the underlying offense remained simple battery. The elevation to "aggravated" was a result of who was battered, not how the victim was battered.
In contrast, armed robbery, like simple robbery, "consists of the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence," N.M. Stat. Ann. § 30-16-2, but it also includes the added requirement that the robbery be accomplished while the perpetrator is armed with a deadly weapon. See N.M. UJI 14-1621. Accordingly, when comparing the offense of armed robbery to the force clause, the requisite physical force may be found in the elements the offense shares with simple robbery, the addition of a deadly weapon, or both.
Regardless, the Court concludes that simple robbery "has as an element the use, attempted use, or threatened use of physical force against the person of another," § 924(e)(2)(B)(i), and thus qualifies as a violent felony under the ACCA. Armed robbery, then, which comprises all of the elements of simple robbery, plus the additional deadly weapon component, is also a violent felony under the ACCA.
Importantly, in United States v. Nicholas, No. 16-3043, 686 Fed.Appx. 570, 2017 WL 1429788 (10th Cir. Apr. 24, 2017), the Tenth Circuit recently held that a conviction for robbery under Kansas' state statute could not be used to enhance a sentence under the ACCA. Id. at 576-77, at *5. In so ruling, the Court reasoned that because the Kansas Supreme Court had upheld a robbery conviction based on de minimis physical force, the offense did not rise to the level of a violent felony. Id. Mere minimal force would not sustain a robbery conviction under New Mexico law, and cases suggesting otherwise have done so in dicta. See State v. Curley, 1997-NMCA-038, ¶ 4, 123 N.M. 295, 939 P.2d 1103 (noting that New Mexico has cases which proffer that even a slight amount of force is sufficient to constitute a robbery, but recognizing that such statements are dicta).
Further, a review of New Mexico case law elucidates that simple robbery requires a level of force commensurate with the force clause found in § 924(e)(2)(B)(i).
For the reasons stated above and those set forth in the PFRD, the Court finds that Defendant's prior New Mexico armed robbery conviction was properly used as a sentence enhancement under the ACCA.
LOURDES A. MARTÍNEZ, UNITED STATES MAGISTRATE JUDGE.
On September 24, 2014, pursuant to a Plea Agreement [Cr.Doc. 35], Defendant pled guilty to an Indictment [Cr.Doc. 13], which charged him with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On May 15, 2015, Defendant was sentenced to a term of 15 years imprisonment, and 3 years of supervised release. [Cr.Doc. 47 at 2-3].
In his § 2255 motion, Defendant states that he was facing a mandatory minimum sentence under the Armed Career Criminal Act ("ACCA") based on two convictions for armed bank robbery in the United States District Court for the District of New Mexico in 2002, and three state convictions for armed robbery in New Mexico District Court in 2003. [Doc. 1 at 2]. Defendant contends that the state armed robbery convictions no longer qualify as crimes of violence following the holding of Johnson v. United States, ___ U.S. ___ 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ("Johnson 2015"). See id. Therefore, Defendant contends that "post Johnson [2015] [Defendant's] plea makes little sense and, in fact, imposes an illegal sentence above the maximum authorized by law." Id. Specifically, Defendant contends that a conviction under New Mexico's robbery statute, N.M.S.A. § 30-16-2, is not a crime of violence under the force clause because it does not require proof of the use or threatened use of violent, physical force, and Defendant relies on Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ("Johnson 2010"), in which the Supreme Court held that the term "physical force" in the ACCA's force clause, § 924(e)(2)(B)(i), must be "strong physical force," "a substantial degree of force," or "violent force — that is, force capable of causing physical pain or injury to another person." See id. at 4-12. Defendant further contends that New Mexico armed bank robbery does not qualify as a crime of violence under the ACCA's force clause because "[t]here is no requirement that the weapon be brandished or used in any fashion to enable the commission of the robbery," and "[t]here is no requirement of a nexus between the simple robbery and possession of the weapon." Id. at 12-13. Therefore, Defendant asks the Court to vacate his sentence and resentence him without the ACCA enhancement. See id. at 14.
In response, the Government contends that Defendant's convictions for New Mexico armed robbery satisfy the force requirements for an enhancement under the ACCA. See [Doc. 5 at 2-4]. The Government states that, while it concedes that New Mexico's simple robbery statute does not meet the force requirements of Johnson 2010, based on the Government's contention that armed robbery requires the use of a deadly weapon in the commission of a robbery, New Mexico's armed robbery statute does meet the Johnson 2010 violent force standard. See id. at 3-4.
In reply, Defendant contends that New Mexico's armed robbery statute does not require force sufficient to meet the standard in Johnson 2010 because "[i]n New Mexico, an accused may be convicted of armed robbery by merely possessing a weapon during a robbery," and does not require the use of the weapon during the
Under the ACCA, an individual who violates § 922(g) (e.g., being a felon in possession of a firearm or ammunition), and who has "three previous convictions ... for a violent felony or a serious drug offense," will receive a mandatory, minimum 15-year sentence. 18 U.S.C. § 924(e). The statute defines the term "violent felony" as:
18 U.S.C. § 924(e)(2)(B)(i)-(ii) (emphasis added). The emphasized clause is referred to as the "residual clause," and in Johnson 2015 the Supreme Court held that the residual clause "denies fair notice to defendants and invites arbitrary enforcement by judges," and, therefore, violates the due process clause of the Constitution. Johnson 2015, 135 S.Ct. at 2557.
Now that the residual clause has been found to be unconstitutional, the Court must determine whether Defendant's prior convictions supporting his ACCA-enhanced sentence satisfy the definition of "violent felony" under the remaining clauses of the ACCA. Since Defendant's convictions for armed robbery are not enumerated offenses under § 924(e)(2)(B)(ii), the Court must consider whether they fall under the "force" clause under § 924(e)(2)(B)(i). In Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265 (2010) ("Johnson 2010"), the Supreme Court held that the term "physical force" in § 924(e)(2)(B)(i) must be "strong physical force," "a substantial degree of force," or "violent force — that is, force capable of causing physical pain or injury to another person." 559 U.S. at 140, 130 S.Ct. 1265 (emphasis in original) (finding that Florida's battery statute, which only required intentional physical contact, no matter how slight, did not constitute "physical force" under § 924(e)(2)(B)(i)). In addition, to determine whether a prior conviction qualifies under the ACCA, the court will ordinarily apply what is called the categorical approach, which looks only at the elements of the statute under which the defendant was convicted. See Johnson 2015, 135 S.Ct. at 2557. However, in cases where a particular offense contains multiple elements listed in the alternative, a sentencing court may employ a modified categorical approach and examine a limited set of materials, including the terms of the charging document, to determine which alternative elements formed the basis of the defendant's conviction. See Mathis v. United States, 136 S.Ct. 2243, 2249 (2016). Therefore, in evaluating whether Defendant's prior convictions for New Mexico armed robbery constitute violent felonies under the force clause of the ACCA, the Court must determine
New Mexico's robbery statute states:
N.M.S.A. § 30-16-2. Since this statute defines three separate crimes of robbery — for first degree, second degree, and third degree felonies — by listing elements in the alternative, this is a divisible statute, and the Court should employ the modified categorical approach to determine under which element of the crime Defendant was convicted. See Mathis, 136 S.Ct. at 2249 and 2256 (explaining that "divisible" statutes are those that "list elements in the alternative, and thereby define multiple crimes," and later instructing that "[i]f statutory alternatives carry different punishments, then under Apprendi they must be elements"). Here, Defendant challenges his convictions for New Mexico armed robbery. See Presentence Investigation Report, dated November 19, 2014, ¶ 42; see also [Doc. 1 at 2] (Defendant's § 2255 motion stating that he is challenging his sentence based on his convictions for New Mexico armed robbery). Therefore, Defendant's convictions required proof of the element of being "armed with a deadly weapon" during commission of the offense. See N.M.S.A. § 30-16-2. The New Mexico Criminal Code defines "deadly weapon" as "any firearm, whether loaded or unloaded; or any weapon which is capable of producing death or great bodily harm." See N.M.S.A. § 30-1-12(B). The same statute sets forth the definition of "great bodily harm" as "an injury to the person which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body." N.M.S.A. § 30-1-12(A).
The Court finds that Defendant's convictions for New Mexico armed robbery satisfy the definition of violent felony pursuant to Johnson 2010. Recently, the Tenth Circuit has found that Colorado's robbery statute, which is similar to New Mexico's robbery statute, matches the level of force required by Johnson 2010 because the Colorado Supreme Court has held that "force or fear is the main element of the offense of robbery," and that "the offense of robbery, whether committed by actual force, or by constructive force, i.e., threats or intimidation, is a crime involving the use of force or violence." United States v. Harris, 844 F.3d 1260, 1269 (10th Cir. 2017) (citations, internal quotation marks, and brackets omitted). Relying on Harris, a District Judge in this Court found that New Mexico's third degree (or simple) robbery statute also requires sufficient force under Johnson 2010 to constitute a violent felony under the ACCA. See Garcia, No. 16-CIV-240 JB/LAM (Doc. 37 at 55-57). The Court in Garcia stated that it "does not think the Supreme Court of New Mexico disagrees that the force requisite to suffice robbery in New Mexico entails physical, violent force or threat of such force." Id. at 56. The Court in Garcia relied on the New Mexico Supreme Court case of State v. Bernal, which construed the difference between larceny and robbery in New Mexico, and found that, because "robbery generally carries a heavier punishment than larceny, the robbery statute clearly is designed
Defendant contends that New Mexico armed robbery does not require the use of sufficient force under the ACCA's force clause because there is no requirement that the weapon be brandished or used during the commission of the robbery. See [Doc. 1 at 12] and [Doc. 8 at 3-4]. The Court agrees with Defendant that, because New Mexico armed robbery only requires that the robbery be committed while armed with a deadly weapon, and does not require that the weapon be brandished or used in any way, "[t]he New Mexico armed robbery statute fails to require any more force than the simple robbery statute." [Doc. 1 at 13]. However, because the Court finds that the holding in Harris indicates that New Mexico simple robbery is likely a violent felony under the force clause, armed robbery is, therefore, also a violent felony because it is comprised of simple robbery while armed with a deadly weapon. See, e.g., United States v. Serrano, No. 16-CIV-670 RB/WPL (Doc. 11 at 9) ("Because armed robbery is comprised of simple robbery plus the element of a deadly weapon, armed robbery is also categorically a violent felony for purposes of the ACCA.").
The Court notes that Defendant relies on the holding in United States v. King, No. CR-02-2092 MV, No. CIV-16-501 MV/KK, in which the Court found that New Mexico's armed robbery statute does not satisfy Johnson 2010's definition of violent force. See King, No. CIV-16-501 MV/KK (Docs. 12, 15, and 18). The King decision first finds that New Mexico third degree robbery is not a violent felony under Johnson 2010 and distinguishes New Mexico state court cases interpreting New Mexico's robbery statute from Colorado state court cases relied on by the Tenth Circuit in Harris. See King, No. CIV-16-501 MV/KK (Doc. 18 at 10-17). The decision then reasons that New Mexico armed robbery also does not meet Johnson 2010's definition of physical force because it criminalizes robberies committed while armed with a deadly weapon, but does not require the use of the weapon. See id. at 20-28.
While the Court is sympathetic to both of these findings, the Court declines to follow the holding in King because, as explained above, the Court finds that it is not clear that a conviction for New Mexico robbery does not constitute a violent felony under the ACCA after the holding in Harris. As noted by the Court in Garcia, the New Mexico Supreme Court in Bernal stated that New Mexico's robbery statute "clearly is designed to protect citizens from violence." See Garcia, No. 16-CIV-240 JB/LAM (Doc. 37 at 56) (quoting Bernal, 2006-NMSC-050, ¶ 28). The Court in King distinguished the New Mexico Supreme Court's holding in Bernal from the