Dean v. United States of America

Filing 15

REPORT AND RECOMMENDATIONS by Magistrate Judge Lourdes A. Martinez re 12 Amended MOTION to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA). Objections to R&R due by 3/10/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff/Respondent,

v.

No.

CV 16-0289 WJ/LAM
CR 11-2011 WJ

DUSTIN DEAN,
Defendant/Movant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION1
THIS MATTER is before the Court on Defendant/Movant’s (hereinafter “Defendant”)
Amended § 2255 Motion [Doc. 12], 2 filed on September 1, 2016.

Plaintiff/Respondent

(hereinafter “the Government”) filed a response on September 14, 2016 [Doc. 13], and Defendant
filed a reply on September 22, 2016 [Doc. 14]. United States District Judge William P. Johnson
referred the claims raised in this case to the undersigned for proposed findings and a recommended
disposition, and a hearing, if necessary. [Doc. 3]. Having considered the amended motion,
response, reply, relevant law, and the record in this case and in Defendant’s underlying criminal
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Within fourteen (14) days after a party is served with a copy of these proposed findings and
recommended disposition, that party may, pursuant to 28 U.S.C. § 636(b)(1), file written objections to such
proposed findings and recommended disposition. A party must file any objections with the clerk of the
United States District Court for the District of New Mexico within the fourteen (14) day period allowed if that
party wants to have appellate review of the proposed findings and recommended disposition. If no objections
are filed, no appellate review will be allowed. Pursuant to Fed. R. Civ. P. 72(b)(2), a party may respond to
another party’s objections within fourteen (14) days after being served with a copy of the objections.
2

Hereinafter, all documents from Case No. CIV-16-0289 cited in this decision will be designated as “Doc.”
followed by their docket number, and all documents from Case No. CR-11-2011 cited in this decision will be
designated as “Cr.Doc.”

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case contained in Case No. CR-11-2011, the undersigned recommends, for the reasons set forth
below, that Defendant’s Amended § 2255 motion [Doc. 12] be DENIED and this case be
DISMISSED with prejudice.
Factual and Procedural Background
On April 25, 2012, pursuant to a Plea Agreement [Cr.Doc. 25], Defendant pled guilty to an
Indictment [Cr.Doc. 4] charging him with one count of being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Defendant states that he was
subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), which mandates a minimum sentence of 180 months (15 years). See [Doc. 12 at 2-3].
The Presentence Report (“PSR”) prepared for Defendant’s criminal case identified three prior
violent felony convictions as a basis for the ACCA enhancement, which were commercial
burglary, residential burglary, and attempted armed robbery. See [Doc. 10 at 9, ¶ 29]. In
addition, the PSR notes that Defendant also has a felony conviction for aggravated battery. See
id. at 11, ¶ 37. On August 27, 2012, the presiding judge imposed a 180-month sentence, with
3 years of supervised release. See [Cr.Doc. 32 at 2-3].
In his § 2255 motion, Defendant concedes that his two burglary convictions count as
violent felony convictions under the ACCA, but contends that his prior convictions for attempted
armed robbery and for aggravated battery do not qualify as convictions for a crime of violence
under the ACCA because the New Mexico statutes for these crimes do not require the sort of force
that is required under the force clause of 18 U.S.C. § 924(e)(2)(B)(i). [Doc. 12 at 3].3 Defendant
asks the Court to vacate his ACCA sentence and resentence him. Id. at 12.

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Defendant concedes that his convictions for residential and commercial burglary count as violent felonies
under the ACCA (see Doc. 12 at 3 and Doc. 14 at 1, n.1), and the Government sets forth arguments in its response brief
contending that both of these convictions are violent felonies under the ACCA (see Doc. 13 at 2-5). However, in
other cases, the undersigned has found that commercial burglary may not be used as an ACCA-predicate offense under

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Discussion
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:
[A]ny crime punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an adult,
that-(i)
has as an element the use, attempted use, or
threatened use of physical force against the person of another; or
(ii)
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)(i)-(ii) (emphasis added). The emphasized clause is referred to as the
“residual clause,” and in Johnson v. United States 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.

135 S.Ct. 2551, 2557 (2015)

(“Johnson 2015”).
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
the enumerated clause. See United States v. Barela, No. 16-CIV-339 JAP/LAM (Doc. 19) (finding that commercial
burglary may not be used as an ACCA-predicate offense under the enumerated clause), and United States v. Luna,
No. 16-CIV-343 MV/LAM (Doc. 16) (finding that commercial burglary may not be used as an ACCA-predicate
offense under the enumerated clause, but that residential burglary may be used for such purpose). The Court finds
infra that Defendant’s prior convictions for attempted armed robbery and aggravated battery are violent felonies under
the ACCA. Since these two prior convictions, along with Defendant’s prior conviction for residential burglary,
constitute three prior violent felony convictions necessary for an ACCA-enhanced sentence, the Court finds it
unnecessary to reach the issue of whether or not Defendant’s conviction for commercial burglary may be used as an
ACCA-predicate offense in light of the Court’s prior decisions on this issue.

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convictions for attempted armed robbery and aggravated battery 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 (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 (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 attempted armed robbery and aggravated battery constitute
violent felonies under the force clause of the ACCA, the Court must determine whether these state
statutes prohibit conduct that “has as an element the use, attempted use, or threatened use of”
violent force against the person of another, as that force is defined in Johnson 2010.
A.

Attempted Armed Robbery

Defendant contends that his prior conviction for attempted armed robbery under N.M.S.A.
§ 30-16-2 does not satisfy the criteria for a violent felony under the force clause. [Doc. 12 at 4].
Defendant contends that New Mexico robbery does not meet the level of force proscribed in

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Johnson 2010 because, under New Mexico law, the use or threatened use of force “must be the
lever that separates the thing of value from the victim,” and “‘[t]he amount or degree of force is not
the determinative factor.’”
85 N.M. 468, 513 P.2d 402).

Id. at 6 (quoting State v. Martinez, 1973-NMCA-120, ¶ 4,
Defendant relies on both the Committee Commentary for

New Mexico’s jury instruction for robbery, UJI 14-1620 N.M.R.A., which states that “[t]he
amount of force is immaterial” for a robbery conviction, and on State v. Curley, 1997-NMCA-038,
¶ 10, 123 N.M. 295, 939 P.2d 1103, which held that the force necessary to commit robbery in New
Mexico must only be enough to overcome the “resistance of attachment.” See id. Defendant
also relies on New Mexico cases holding that the force necessary for New Mexico robbery
includes: snatching an article, such as a pin, from a person’s clothing; jostling a person in order to
divert his attention; grabbing a purse and taking it after struggling with the person so that the purse
strap breaks; grabbing a victim and locking her in a cell; and shoving a person’s shoulder. See id.
at 6-7 (citations omitted). Defendant, therefore, contends that the least amount of force necessary
to commit New Mexico robbery is less than the “strong physical force,” “substantial degree of
force,” or “violent force -- that is, force capable of causing physical pain or injury to another
person,” that is required by the holding in Johnson 2010. See id. at 7 (quoting Johnson 2010,
559 U.S. at 140). Defendant also contends that the Court should not rely on the Tenth Circuit
case of United States v. Lujan, 9 F.3d 890 (10th Cir. 1993), which stated that § 30-16-2 satisfied
the force clause in § 924(e)(2)(B)(i), because Lujan was decided long before Johnson 2010, and
because the Tenth Circuit in Lujan did not discuss this issue and, instead, merely stated in passing
that the force was sufficient. See id. at 8-9.
In response, the Government notes that it has conceded in other cases that robbery
convictions do not satisfy the force clause under the ACCA.

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See [Doc. 13 at 5] (citing

United States v. Garcia, No. 16-CIV-240 JB/LAM and Untied States v. Sanchez, No. 16-CIV- 659
JAP/GBW). However, the Government contends that those concessions “have no bearing on the
instant conviction” because those defendants were convicted of “plain third degree
robbery[ whereas] here, [Defendant] was convicted of attempted armed robbery, which is a
separate subsection of New Mexico’s robbery statute NMSA § 30-16-2.” Id. The Government
contends that the additional element in armed robbery -- proof of being armed with a deadly
weapon -- “is an offense that does rise to the level of sufficient force to be a violent felony.” Id.
at 5-6. The Government contends that “[t]he presence of a deadly weapon during the course of a
robbery or attempted robbery suggests that there is at least a threat of sufficient physical force
towards the person of another to count as a predicate,” and, therefore, “armed robbery requires
more force than simple robbery.” Id. at 6. The Government contends that being armed with a
deadly weapon meets the violent force standard in Johnson 2010 because “armed force is a ‘strong
physical force,’ ‘a substantial degree of force,’ and a ‘violent force - that is force capable of
causing physical pain or injury to another person.’” Id. at 6-7 (quoting Johnson 2010, 559 U.S.
at 140).
In his reply, Defendant contends that the Government improperly relied on Defendant’s
PSR for its contention that his attempted armed robbery conviction satisfies the ACCA’s force
clause. See [Doc. 14 at 2-3]. Defendant contends that, under the modified categorical approach,
the Court can only consult a limited class of documents, such as the indictment, jury instructions,
or plea agreement and colloquy, to determine the offense for which Defendant was convicted.
See id. at 2. Defendant contends that the PSR is not one of the records upon which the Court may
rely, and that, based on only “the bare bones name of the offense itself,” “[i]t is not clear on this
record whether the ‘attempt’ applies to the underlying element of being ‘armed with a deadly

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weapon,’ or to the element of ‘theft,’ or to the ‘use or threatened use of force or violence,’ or to all
of these.” Id. at 3. Defendant, therefore, contends that “[Defendant’s] conviction for attempted
armed robbery is not demonstrably a ‘violent felony’ under the ACCA.” Id. (citation omitted).
Defendant was convicted of Attempted Armed Robbery, contrary to N.M.S.A. 1978
§§ 30-28-1 and 30‐16‐2. See [Doc. 13-1 at 1]. New Mexico’s robbery statute states:
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.
Whoever commits robbery is guilty of a third degree felony.
Whoever commits robbery while armed with a deadly weapon is,
for the first offense, guilty of a second degree felony and, for second
and subsequent offenses, is guilty of a first degree felony.
N.M.S.A. § 30‐16‐2. New Mexico’s attempt statute states: “Attempt to commit a felony consists
of an overt act in furtherance of and with intent to commit a felony and tending but failing to effect
its commission.” N.M.S.A. § 30-28-1. Recently, the Tenth Circuit has found that Colorado’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 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 states 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

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Garcia relies 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 to
protect citizens from violence.” See id. (quoting Bernal, 2006-NMSC-050, ¶ 28, 140 N.M. 644,
146 P.3d 289). Therefore, the Court states that it “can see no sound reason to depart from the
Tenth Circuit’s analysis and conclusions in United States v. Harris.” Id. at 57.
Based on the foregoing, it appears that New Mexico’s third degree robbery statute may
require sufficient force under Johnson 2010 to constitute a violent felony under the ACCA.
However, in Garcia, the Court notes that “the Colorado Supreme Court appears to have given the
Tenth Circuit more to work with than has the Supreme Court of New Mexico,” and that “[t]he
Court would have liked more guidance from State v. Bernal, particularly.” Id. at 57 (also noting
that “United States v. Harris garnered a concurrence from Circuit Judge Ebel regarding whether
Colorado robbery by means of threat or intimidation requires proof of the same or greater force
than the ACCA requires for a violent felony”) (citation and internal quotation marks omitted).
Moreover, Defendant relies on the Committee Commentary to New Mexico’s robbery’s jury
instruction, as well as New Mexico Court of Appeals cases, which state that the amount of force
under New Mexico’s robbery statute is immaterial and just has to be enough to overcome the
resistance of attachment. See [Doc. 12 at 6] (citing, inter alia, UJI 14-1620, N.M.R.A.; Martinez,
1973-NMCA-120, ¶ 4; and State v. Curley, 1997-NMCA-038, ¶ 10).

Nevertheless, since

Defendant was convicted of attempted armed robbery, the Court finds that Defendant’s conviction
satisfies the Johnson 2010 definition of physical force under the ACCA. New Mexico’s robbery
statute defines the three separate crimes of robbery -- for first degree, second degree, and third
degree felonies -- by listing elements in the alternative. See N.M.S.A. § 30‐16‐2. Because this is

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a divisible statute, 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, the Court is able to determine
that Defendant was convicted of attempted armed robbery. See [Doc. 13-1 at 1] (Judgment,
Sentence and Commitment in Defendant’s state court case stating that he was convicted of
“Attempted Armed Robbery, contrary to Section 30-28-1 & 30-16-2, N.M.S.A. 1978”).
Therefore, Defendant’s conviction required proof of the element of being “armed with a deadly
weapon” during commission of the offense. See § 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).
Since a conviction for New Mexico armed robbery requires that the defendant be armed
with a deadly weapon, the Court finds that this statute requires sufficient physical force to satisfy
the definition in Johnson 2010 of “force capable of causing physical pain or injury to another
person.” The Court agrees with Defendant that under the modified categorical approach it cannot
look beyond a limited class of documents, such as Defendant’s charging documents, and,
therefore, is precluded from relying on the facts underlying Defendant’s conviction as set forth in
the PSR. See [Doc. 14 at 2-3]. Nevertheless, the Court bases its finding solely on Defendant’s

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conviction for attempted armed robbery, and not on any information from the PSR. In addition,
the Court rejects Defendant’s contention that his conviction for attempted armed robbery does not
satisfy the force clause because it is not clear “whether the ‘attempt’ applies to the underlying
element of being ‘armed with a deadly weapon,’ or to the element of ‘theft,’ or to the ‘use or
threatened use of force or violence,’ or to all of these.” Id. at 3. To the contrary, in order for
Defendant to have been convicted of armed robbery under § 30-16-2, he had to have been armed
with a deadly weapon while “commit[ting] robbery.” Therefore, the Court finds that a plain
reading of the statute shows that Defendant was armed at the time of attempting to commit
robbery. Moreover, Defendant fails to cite any support for his contention that “‘attempt’ [can]
appl[y] to the underlying element of being ‘armed with a deadly weapon.’” [Doc. 14 at 3].
Finally, the Court notes that the ACCA’s force clause provides that a violent felony may be one
that “has as an element . . . the attempted use . . . of physical force against the person of another. §
924(e)(2)(B)(i) (emphasis added). Therefore, the Court finds that Defendant’s attempted armed
robbery conviction constitutes a violent felony under the force clause of the ACCA.
2. Aggravated Battery
Next, Defendant contends that his conviction for aggravated battery does not meet the
ACCA’s force clause because the crime does not require the level of force set forth in
Johnson 2010. See [Doc. 12 at 10-12]. Defendant contends that New Mexico’s aggravated
battery statute does not require actual application of violent force, or actual infliction of great
bodily harm or death, and, instead, “requires merely that those things could have happened.” Id.
at 12.
In response, the Government contends that New Mexico’s aggravated battery statute is
divisible because it provides different penalties and poses separate elements for each subsection.

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See [Doc. 13 at 7]. Applying the modified categorical approach, the Government states that
Defendant was convicted of aggravated battery pursuant to N.M.S.A. § 30-3-5(C), which can be
committed by: (1) causing great bodily harm, (2) using a deadly weapon, or (3) doing so in a
manner whereby great bodily harm or death can be inflicted. Id. at 9. The Government contends
that § 30-3-5(C) requires the use or threatened use of violent force that satisfies the ACCA’s force
clause, and relies on United States v. Ramon-Silva, 608 F.3d 663, 671 (10th Cir. 2010), which held
that apprehension-causing assault satisfies the ACCA’s violent felony provision. Id. at 10-11.
The Government states that:
It would be wholly illogical to depart from Tenth Circuit precedent
finding the requisite violent force in cases involving assault with a
dangerous weapon, and to not do so when there is an actual battery
(with touching or application of force) with a deadly weapon or in a
manner in which great bodily harm could result.
Id. at 11.
In reply, Defendant contends that the third alternative of § 30-3-5(C), which provides that
aggravated battery can be committed “in any manner whereby great bodily harm or death can be
inflicted,” “presents the very sort of hazy and undefined boundaries that were found to be
unconstitutionally vague in Johnson [2015].” [Doc. 14 at 4]. Defendant contends that because
New Mexico’s aggravated battery statute relies on an indeterminate range of conduct, it has the
same defect as the ACCA’s residual clause which was found to be unconstitutional in
Johnson 2015. Id.
New Mexico’s aggravated battery statute provides:
A. Aggravated battery consists of the unlawful touching or
application of force to the person of another with intent to injure that
person or another.
B. Whoever commits aggravated battery, inflicting an injury to the
person which is not likely to cause death or great bodily harm, but

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does cause painful temporary disfigurement or temporary loss or
impairment of the functions of any member or organ of the body, is
guilty of a misdemeanor.
C. Whoever commits aggravated battery inflicting great bodily
harm or does so with a deadly weapon or does so in any manner
whereby great bodily harm or death can be inflicted is guilty of a
third degree felony.
N.M.S.A. 1978 § 30-3-5. The alternative elements in this statute are separated into subsections B
and C, wherein subsection B is a misdemeanor and subsection C is a third degree felony. Because this
statute is divisible into these elements, the Court may examine the state court documents that were used
to convict Defendant in order to determine whether Defendant was convicted under subsection B or
subsection C.

See Mathis, 136 S.Ct. at 2249 (describing the modified categorical approach).

Defendant was convicted of aggravated battery in violation of § 30-3-5(C). See [Doc. 13-1 at 1]
(Judgment, Sentence and Commitment in Defendant’s state case stating that he was convicted of
“Aggravated Battery, contrary to Section 30-3-5(C) N.M.S.A. 1978”). To sustain a conviction
under subsection C, Defendant must have engaged in unlawful touching or application of force to
a person, with intent to injure that person or another, and either (1) inflicted great bodily harm;
(2) used a deadly weapon; or (3) did so in any manner whereby great bodily harm or death could
have been inflicted.

See § 30-3-5(A) and (C).

Again, the term “physical force” in

§ 924(e)(2)(B)(i) means “strong physical force,” “a substantial degree of force,” or “violent force
-- that is, force capable of causing physical pain or injury to another person.” Johnson 2010, 559
U.S. at 140 (emphasis in original). The Court finds that all three alternatives under § 30-3-5(C)
satisfy this definition.

Obviously, if a defendant inflicts great bodily harm, the Johnson

2010 definition is satisfied. In addition, similar to the Court’s finding supra regarding armed
robbery, the use of a deadly weapon provides “force capable of causing physical pain or injury to
another person.” Finally, the Court finds that the third alternative in subsection C sufficiently

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tracks the language in Johnson 2010 that physical force under the ACCA’s force clause must be
“capable of causing physical pain or injury to another person” (559 U.S. at 140), because it
requires intent to injure as well as a touching or application of force that could inflict great bodily
harm or death.

Therefore, the Court rejects Defendant’s contention that the language in

subsection C is vague in the same way as the ACCA’s residual clause.
Conclusion
For the reasons stated above, the Court finds that Defendant’s convictions for attempted
armed robbery and aggravated battery are proper ACCA-predicate offenses because they each
meet the ACCA’s force clause definition.
IT IS THEREFORE RECOMMENDED, for the reasons stated above, that Defendant’s
Amended § 2255 motion [Doc. 12] be DENIED and that this case be DISMISSED with
prejudice.

______________________________________
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE

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