WILLIAM P. JOHNSON, District Judge.
THIS MATTER comes before the Court upon Defendant Nathan Jensen's (hereinafter "Defendant" or "Jensen") sentencing memorandum
Defendant pled guilty to possession of a firearm and ammunition by a person previously convicted of a felony. 18 U.S.C. § 922(g)(1). On April 12, 2017, the United States Probation Office disclosed the PSR with a finding in paragraph 27 that Defendant should be sentenced as an Armed Career Criminal under the Armed Career Criminal Act ("ACCA"). In addition to a statutory minimum sentence of 15 years, the PSR also determined that Defendant's advisory sentencing guideline range is 180-210 months based on an offense level of 33, minus 3 points for acceptance of responsibility for a total offense level of 30, and a criminal history category of VI . This determination was based in part on three prior felony robbery convictions, one of which occurred when Jensen was seventeen years old.
On May 11, 2017, while in custody awaiting sentencing on the underlying offense, Defendant allegedly assaulted a corrections officer. Probation filed a second addendum to the PSR on September 13, 2017, recommending that Defendant's total guideline offense level be increased to Level 33 based on a denial of acceptance of responsibility as a result of the alleged assault on a corrections officer.
Defendant objected to the PSR, stating in part that (1) his first robbery was committed when he was seventeen years old and does not count as a "violent felony" under ACCA; and (2) New Mexico's robbery statute is not a "violent felony." Defendant further argues that Probation incorrectly calculated his criminal history points.
Defendant also filed two additional objections, apparently without consulting his counsel.
ACCA requires a fifteen-year mandatory minimum sentence when the defendant has three or more qualifying "violent felonies." 18 U.S.C. § 924 et seq. The Armed Career Criminal Act provides:
§ 924(e)(1) (emphasis added).
A violent felony
18 USC § 924(e)(2)(B) (emphasis added). The italicized portion (the residual clause) is void for vagueness. United States v. Miller, 868 F.3d 1182, 1186 (10th Cir. 2017). Thus, the government must prove a prior conviction qualifies as a violent offense under (1) the elements clause or (2) the enumerated-offenses clause. Because robbery is not an enumerated offense, the applicability of ACCA turns on whether Defendant's robbery convictions satisfy the elements clause.
At issue is whether the New Mexico robbery statute "has an element the use, attempted use, or threatened use of physical force against the person of another." § 924(e)(2)(B)(i). To determine whether a state statute requires physical force, "we must [1] identify the minimum force required by [New Mexico] law for the crime of robbery and then [2] determine if that force categorically fits the definition of physical force." United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017).
"Physical Force" under ACCA means violent force, or "force capable of causing physical pain or injury to another person". Johnson v. U.S., 559 U.S. 133, 140 (2010). Physical force must be greater than "slight offensive touching". Harris, 844 F.3d at 1265. A slap in the face is sufficient force. Id.
In Harris, the Tenth Circuit concluded that the felony crime of robbery under the Colorado robbery statute was a violent felony under ACCA. United States v. Harris, 844 F.3d 1260 (10th Cir. 2017). The Colorado robbery statute defined robbery as: "knowingly tak[ing] anything of value from the person or presence of another by the use of force, threats, or intimidation." Colo. Rev. Stat. § 18-4-301(1) (emphasis added). The Colorado Supreme Court stated that "the gravamen of the offense of robbery is the violent nature of the taking" and that robbery statutes are intended to protect persons. People v. Borghesi, 66 P.3d 93, 99 (Colo. 2003), quoted in Harris, 844 F.3d at 1269. "Common law robbery. . . is easily distinguishable from the property crime of larceny. . . there can be no robbery without violence, and there can be no larceny with it." Harris, 844 F.3d at 1267, quoting Borghesi, 66 P.3d at 99.
In New Mexico, 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." NMSA § 30-16-2 (emphasis added).
"[R]obbery is a crime designed to punish the use of violence" and "to protect citizens from violence." State v. Bernal, 140 N.M. 644, 146 P.3d 289, 296 (2006), quoted in United States v. Manzanares, 2017 WL 3913235, at *12 (D.N.M.). "[R]obbery is distinct from larceny because it requires. . . the element of force. . . . Robbery is not merely a property crime, but a crime against a person." Bernal, 146 P.3d at 296 (citations omitted). The force must be sufficient to overcome resistance. Id. Mere "touching or jostling" is insufficient to establish the force element. State v. Sanchez, 430 P.2d 781, 782 (N.M. Ct. App. 1967) (putting fist to victim's back, and taking wallet from victim's back pocket was insufficient force). "[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." State v. Curley, 939 P.2d 1103 (N.M. Ct. App. 1997); Bernal, 146 P.3d at 296. "The Supreme Court of New Mexico has provided the essential gloss on the distinction between larceny and robbery in New Mexico which the Court believes qualifies robbery under ACCA's elements clause by entailing force, or the threat of force, akin to physical, violent force." United States v. Garcia, 2017 WL 2271421, at *23 (D.N.M.) (Browning, J.), citing State v. Bernal, 146 P.3d 289 (N.M. 2006). The majority of courts within this district interpreting the New Mexico robbery statute have determined it is a violent felony under ACCA, or a crime of violence pursuant to U.S.S.G. § 4B1.1.
Here, the New Mexico robbery statute is substantially similar to the Colorado robbery statute, and Harris' reasoning applies. The minimum "force or violence" as used in the New Mexico statute categorically matches the definition of "physical force" in ACCA.
Defendant argues that New Mexico cases have interpreted robbery to only require the slightest amount of force, which does not meet Johnson's definition of physical force. As explained above, the Court disagrees. Moreover, in cases where robbery statutes did not meet the physical force requirement, those statutes had departed from common law robbery principles which required taking through the use of violence or intimidation sufficient to overcome resistance from the victim. See Harris, 844 F.3d at 1267-68 (noting that Massachusetts departed from common law robbery principles by not requiring resistance by the victim, i.e., it was robbery to sneak up on a victim and take a purse); United States v. Lamb, 638 Fed. Appx. 575, 576 (8th Cir. 2016) (Michigan robbery statute was a violent felony where robbery was described as larceny aggravated by taking from a person by force or threat of force), vacated on other grounds, 137 S.Ct. 494, 2016 WL 4399374. Cf. United States v. Nicholas, 686 Fed. Appx. 570 (10th Cir. 2017) (snatching purse from victim's arm, without more, was not sufficient physical force under ACCA). However, both Colorado and New Mexico apply common law robbery. Like the Colorado statute, New Mexico robbery "is a crime designed to punish the use of violence" and protect citizens from violence. State v. Bernal, 146 P.3d 289, 296 (N.M. 2006).
Defendant further argues that for a juvenile offense to count as a Violent Felony under ACCA the United States must show an additional element — that the Defendant used or carried a firearm or knife during the crime. The Court declines to reach this argument, because it finds that the Defendant was convicted as an adult. Defendant was charged as a youthful offender, but pled to an adult sentence.
N.M.S.A. § 32A-2-20(D) (as of 2000) provided:
Generally, the Tenth Circuit looks to state law to determine whether a conviction was for an adult or juvenile offense. United States v. Cole-Jackson, 414 F. App'x 108, 110-11 (10th Cir. 2011). Thus, this conviction should be analyzed as any other adult conviction. Id., citing United States v. Johnson, 630 F.3d 970, 974-76 (10th Cir. 2010), cert. denied. See also U.S. v. Missick, 204 F.3d 1282, 1301 (10th Cir. 2000).
Defendant argues that three convictions should not be counted separately for the purpose of assigning criminal history points, because they were sentenced on the same day and there were no intervening arrests. The Court disagrees. "Regardless of consolidation. . . "[p]rior sentences are always counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense)." United States v. Manning, 635 F. App'x 404, 409 (10th Cir. 2015), cert. denied, 136 S.Ct. 1220, 194 L. Ed. 2d 220 (2016), quoting U.S.S.G. § 4A1.2(a)(2). Here, Jensen was arrested on three different dates. He was arrested for an offense each time prior to committing a subsequent offense. Thus, the PSR appropriately assigns criminal history points for each offense separately.
This same reasoning applies to two other convictions (D-202-CR-2007-05366 and D-202-CR-2007-0491) (
Defendant also argues that he should not receive criminal history points for his adult robbery conviction, as he committed the offense when he was seventeen years old. See U.S.S.G. § 4A1.2(d). As explained above, Defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month. Therefore, three criminal history points for this robbery conviction are appropriate. U.S.S.G. § 4A1.2.
Finally, as the PSR notes in paragraph 45, all of the Defendant's prior criminal convictions result in a criminal history score of 24 and, as explained in paragraph 46 of the PSR, two more criminal history points were added because the instant offense was committed while Defendant was under a criminal justice sentence thereby resulting in a total criminal history score of 26. While the Court overrules Defendant's objections to the manner in which his criminal history score was calculated, the Court notes that even if the Court agreed with Defendant in that three of his criminal convictions should not be counted separately, the Court believes that Defendant would still be in Criminal History Category VI given that only 13 Criminal History points are required for a defendant to be in Category VI.
As stated above, if Defendant receives a three level adjustment for acceptance of responsibility, his Total Offense Level is 30, Criminal History Category is VI which corresponds to an advisory sentencing guideline range of 180 to 210 months. On the other hand, if Defendant
The Court may consider "criminal conduct unrelated to the offense of conviction in determining whether a defendant qualifies for an adjustment for acceptance of responsibility." United States v. Prince, 204 F.3d 1021, 1022-24 (10th Cir. 2000) (affirming denial of acceptance of responsibility where defendant stabbed another prisoner while incarcerated). Thus, the Court may deny a defendant's adjustment for acceptance of responsibility for assaulting a corrections officer while awaiting sentencing, even though it is unrelated to the underlying offense. See United States v. Kemp, 2017 WL 3635168 (10th Cir. 2017) (denying defendant an adjustment for assaulting a corrections officer while he was incarcerated awaiting sentencing).
However, the Court is not prepared at this time to deny the adjustment for acceptance of responsibility, without proof of the alleged assault by a preponderance of the evidence. Generally, the Defendant has the burden of showing he is entitled to an adjustment for acceptance of responsibility. Prince, 204 F.3d at 1024. However, "[w]hen a defendant objects to a fact in a presentence report, the government must prove that fact at a sentencing hearing by a preponderance of the evidence." United States v. Shinault, 147 F.3d 1266, 1278 (10th Cir. 1998); United States v. Herrera, 116 Fed. Appx. 972, 974 (10th Cir. 2004). Therefore, Defendant will need to file an objection to Probation's Second Addendum
For the reasons set forth above, the Court
