MARTHA VAZQUEZ, District Judge.
THIS MATTER comes before the Court on Magistrate Judge Laura Fashing's Proposed Findings and Recommended Disposition (Doc. 79
When a party files timely written objections to the magistrate judge's recommendation, the district court generally will conduct a de novo review and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(C); see also FED. R. CIV. P. 72(b)(3). To preserve an issue for de novo review, "a party's objections to the magistrate judge's report and recommendation must be both timely and specific." United States v. One Parcel of Real Prop., With Buildings, Appurtenances, Improvements, & Contents, Known as: 2121 E. 30th St., Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996).
The magistrate judge recommended that the Court deny Dallas's motion because Dallas's prior felony aggravated battery convictions under New Mexico law are violent felonies under the elements clause of the ACCA. See Doc. 79 at 6-10. Because his prior convictions satisfy the elements clause, Dallas is not entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court invalidated only the residual clause of the ACCA, not the elements clause. See Doc. 79 at 3-10; Johnson, 135 S. Ct. at 2563.
In his objections, Dallas argues that the magistrate judge erred in finding that the felony aggravated battery statute under which he was convicted requires more than merely touching another person. Doc. 84 at 3-8. He also argues that the magistrate judge erred in concluding that the felony aggravated battery statute's requirement that an unlawful touching that inflicts great bodily harm (or could inflict such harm) necessarily requires physical force. See id. at 8-11. He further argues that the magistrate judge erred in concluding that United States v. Barraza-Ramos, 550 F.3d 1246 (10th Cir. 2008) does not control this case, see Doc. 84 at 12-14, and that the magistrate judge erred in applying the modified categorical approach, see id. at 14-15. The Court will address each of Dallas's arguments in turn.
Dallas argues that "[c]ommon law battery is an element of aggravated battery and the mere touch needed to complete the offense is not the violent physical force described in Johnson I [Johnson v. United States, 559 U.S. 133 (2010)
The elements of felony aggravated battery involving great bodily harm are as follows:
N.M. R. ANN., Crim. UJI 14-323. "Great bodily harm means an injury to a person which creates a high probability of death or results in serious disfigurement or results in loss of any member or organ of the body or results in permanent or prolonged impairment of the use of any member or organ of the body." N.M. R. ANN., Crim. UJI 14-131 (brackets and footnote omitted).
The elements of felony aggravated battery with a deadly weapon are as follows:
N.M. R. ANN., Crim. UJI 14-323. An object is a deadly weapon if, when used as a weapon, it could cause death or great bodily harm. Id.
Thus, the question with respect to the three means of committing aggravated battery is whether the additional elements—that the defendant acted with the intent to injure and either caused great bodily harm, acted in a way that likely would cause death or great bodily harm, or used a deadly weapon—necessarily involves the use of violent force. See United States v. Taylor, 843 F.3d 1215, 1223 (10th Cir. 2016) (although simple battery does not satisfy the elements clause because it could be accomplished by only the slightest touch, the question is whether battery that includes the aggravating element of a deadly weapon is sufficient to satisfy the violent force requirement). Tenth Circuit precedent evaluating similar statutes compels the conclusion that these additional elements satisfy the violent force requirement of the ACCA.
For example, in United States v. Treto-Martinez, 421 F.3d 1156, 1160 (10th Cir. 2005), the Tenth Circuit held that Kansas aggravated battery satisfied the force clause of the Guidelines.
With respect to aggravated battery involving the use of a deadly weapon, several cases are instructive. As the magistrate judge noted, in United States v. Maldonado-Palma, 839 F.3d 1244, 1250 (10th Cir. 2016), the court held that New Mexico aggravated assault with a deadly weapon is categorically a crime of violence under the Sentencing Guidelines' force clause, which is identical to the ACCA's force clause. The use of a weapon "capable of producing death or great bodily harm . . . necessarily threatens the use of physical force." Id. Similarly, in United States v. Ramon Silva, 608 F.3d 663, 670-71 (10th Cir. 2010), the court held that New Mexico's "apprehension causing" aggravated assault statute qualified under the force clause of the ACCA. Even though the assault statute could be violated without any actual physical contact or violence perpetrated against the victim, the conduct it criminalized "`could always lead to . . . substantial and violent contact, and thus . . . would always include as an element' the threatened use of violent force." Id. at 672 (quoting Treto-Martinez, 421 F.3d at 1160); see also Taylor, 843 F.3d at 1224 (noting that "regardless of the type of dangerous weapon that is employed by a particular defendant, the use of a dangerous weapon during an assault or battery always constitutes a sufficient threat of force to satisfy the [force] clause" (internal quotation marks omitted)).
Based on these cases, I find that New Mexico felony aggravated battery requires the use of physical force required by Johnson I. Conviction under New Mexico's felony aggravated battery statute requires more than a mere touching. It requires the intent to injure and commission in a manner whereby great bodily harm is inflicted, or death or great bodily harm could be inflicted, or where a deadly weapon is used. See N.M. STAT. ANN. § 30-3-5(C). A battery committed in a manner that could inflict great bodily harm necessarily requires "force capable of causing physical pain or injury." Johnson I, 559 U.S. at 140; Treto-Martinez, 421 F.3d at 1160. Likewise, a battery committed with the use of a deadly weapon "always constitutes a sufficient threat of force to satisfy the [force] clause." Taylor, 843 F.3d at 1224 (internal quotation marks omitted). The additional requirements of felony aggravated battery— essentially, that serious bodily injury did or could have occurred, or that a deadly weapon was used—put the statute squarely in the range of conduct that the Tenth Circuit has found to satisfy the physical force requirement of the elements clause. Notably, several other judges in this District have reached the same conclusion.
Dallas's arguments to the contrary are unpersuasive. He argues that conviction under the felony aggravated battery statute can result from any "unlawful touching, however slight." Doc. 84 at 5. Because "[s]imple battery is a necessary element of aggravated battery," he contends, any unlawful touch will satisfy the battery element, and no more force is required for conviction of the greater offense of aggravated battery. Id. But Dallas cites no case that supports his argument. His citations to cases analyzing simple battery, rather than felony aggravated battery, are inapposite. See State v. Ortega, 1992-NMCA-003, 113 N.M. 437, 827 P.2d 152; State v. Hill, 2001-NMCA-094, 131 N.M. 195, 34 P.3d 139. And the cases he cites that do evaluate the aggravated battery statute indisputably involve the use of physical force. See State v. Traeger, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518 (defendant used baseball bat to beat victim).
Dallas also cites to two federal appellate cases that he believes are persuasive. See Doc. 84 at 5-7. But both cases are readily distinguishable from this case. Dallas first suggests that the Court should follow the First Circuit's reasoning in United States v. Fish, 758 F.3d 1, 9-17 (1st Cir. 2014), which held that the Massachusetts crime of assault and battery with a dangerous weapon ("ABDW") does not constitute a crime of violence under 18 U.S.C. § 16(b).
In United States v. Hays, 526 F.3d 674, 681 (10th Cir. 2008)—the other federal appellate case on which Dallas relies—the court held that a Wyoming battery statute did not satisfy the "use of physical force" element required to satisfy the definition of a "misdemeanor crime of domestic violence." However, the underlying statute in Hays could be violated by unlawfully touching someone in a rude, insolent or angry manner. Id. at 678. Because that provision could be violated by "any contact, however slight," the court held that it did not satisfy the force clause. Id. at 678-79. As discussed above, aggravated felony battery in New Mexico requires more than "any contact, however slight." Hays therefore does not control the outcome of this case.
Dallas argues that the magistrate judge erred in concluding that proof of great bodily harm necessarily means that New Mexico felony aggravated battery has a violent physical force element. See Doc. 84 at 8. Dallas relies on United States v. Rodriguez-Enriquez, 518 F.3d 1191, 1195 (10th Cir. 2008), which held that a defendant's prior conviction for assault by drugging a victim was not a crime of violence under the Guidelines because it did not involve physical force. Dallas argues that under New Mexico's aggravated battery statute, "a person may unlawfully touch another by applying a contaminated salve"; or "a medical professional may intravenously give a drug which he knows will or could gravely harm a person"; or a "person may bump another into the path of an oncoming bus or train." Doc. 84 at 9. Although Dallas cites no New Mexico cases that have actually applied the felony aggravated battery statute to these situations, even if the statute were to apply, Supreme Court precedent forecloses his argument.
The Supreme Court's decision in United States v. Castleman, 134 S.Ct. 1405 (2014) calls into question the continued vitality of Rodriguez-Enriquez. The Supreme Court in Castleman rejected an argument similar to the one Dallas makes here. The defendant in Castleman argued that, while he committed a crime that required him to have "intentionally or knowingly cause[d] bodily injury to" the victim, such a crime did not have as an element the use of physical force because "one can cause bodily injury without violent contact—for example, by deceiving the victim into drinking a poisoned beverage." 134 S. Ct. at 1409 (internal quotations omitted). The Supreme Court held that such conduct does in fact entail the use of force:
Castleman, 134 S. Ct. at 1414-15 (internal quotations, brackets, and citations omitted). In short, "a `bodily injury' must result from `physical force.'" Id. at 1414.
Castleman dealt with the force required under the definition of "misdemeanor crime of domestic violence" in 18 U.S.C. § 922(g)(9), which the Court held to be a lesser amount of force than that required under the Johnson I standard. See id. at 1409-13. However, the Court's reasoning still applies in considering whether New Mexico's felony aggravated battery offense requires the use of violent force. As the Fourth Circuit has explained, the Castleman "Court relied significantly on Johnson [I] in rejecting a proffered limitation on the term `physical force.'" United States v. Reid, 861 F.3d 523, 529 (4th Cir. 2017) (quoting Castleman, 134 S. Ct. at 1414 ("[A]s we explained in Johnson, `physical force' is simply `force exerted by and though concrete bodies'"); cf. id. at 1416-17 (Scalia, J., concurring in part and concurring in the judgment) ("[I]t is impossible to cause bodily injury without using force `capable of' producing that result")). The combined analysis of Johnson I and Castleman compels the conclusion that the ACCA's "use of physical force" phrase includes force applied directly or indirectly. See id. Dallas's argument to the contrary must fail.
Dallas also argues that the magistrate judge erred in concluding that the Tenth Circuit's decision in Barraza-Ramos, 550 F.3d 1246, does not control the outcome of this case. Dallas's argument is without merit. The magistrate judge correctly held that the statute at issue in Barraza-Ramos was not analogous to New Mexico's felony aggravated battery statute, and that the Barraza-Ramos decision was not determinative.
In Barraza-Ramos, 550 F.3d at 1250-51, the Tenth Circuit held that a Florida aggravated battery statute, which criminalized battery against pregnant women, did not satisfy the force clause. The statute could be violated by merely "touching" a pregnant woman against her will. Id. at 1249. Barraza-Ramos did not contemplate a battery statute with the additional requirements that the defendant intend to injure the victim and that the defendant commit the battery (1) in a manner that causes great bodily harm, (2) with the use of a deadly weapon, or (3) in a manner whereby death or great bodily harm likely would be inflicted. These additional requirements distinguish New Mexico aggravated battery from the statute in Barraza-Ramos. And, as explained in footnote 5 above, the fact that simple battery is a lesser included offense of felony aggravated battery does not permit the Court to ignore the additional elements of felony aggravated battery in determining whether it satisfies the elements clause of the ACCA. New Mexico's felony aggravated battery, N.M. STAT. ANN. §§ 30-3-5(A), (C), qualifies as a violent felony under the elements clause of the ACCA.
Dallas's final argument is that the magistrate judge erred in applying the modified categorical approach to the statute at issue here. He argues, for the first time, that the magistrate judge should not have reviewed the court documents attached as exhibits to the government's response, and he requests that the Court strike those exhibits. See Doc. 84 at 15. Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived. United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001). Nonetheless, even without considering the court documents attached to the government's response, the magistrate judge did not misapply the modified categorical approach.
Dallas suggests that the magistrate judge found that subsection C of N.M. STAT. ANN. § 30-3-5 was divisible. Doc. 84 at 15. This is simply incorrect. The magistrate judge held only that subsection C was divisible from subsection B, not that the three methods of committing felony aggravated battery under subsection C were divisible from each other. Doc. 79 at 7. The magistrate judge specifically declined to decide whether subsection C was divisible, and instead found that however felony aggravated battery was committed, it qualified as a violent felony under the ACCA. See id. at 7 ("The Court need not decide that question [whether subsection C is divisible]. . . ."), 9 ("[A]ll three of the means by which one can violate N.M. STAT. ANN. § 30-3-5(C) satisfy the force requirement set out in Johnson I." (emphasis added)).
Dallas's argument that the magistrate judge should not have used the modified categorical approach to determine whether he violated subsection B or C is baffling. He argues that "whether aggravated battery is divisible in this way is irrelevant because both versions require proof of an unlawful touch." Doc. 84 at 14. Although it is true that both the misdemeanor offense and the felony offense require proof of an unlawful touch, the magistrate judge needed to determine whether Dallas's prior offense was a felony, and therefore potentially a violent felony under the ACCA, or merely a misdemeanor. The only way to make this determination was to apply the modified categorical approach.
For the foregoing reasons, the Court overrules Dallas's objections (Doc. 84).
IT IS THEREFORE ORDERED that the Proposed Findings and Recommended Disposition (Doc. 79) is ADOPTED by the Court.
IT IS FURTHER ORDERED that this case is DISMISSED, and that a final judgment be entered concurrently with this order.
