Dean v. United States of America

Filing 17

ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION 15 denying 12 Amended Motion to Vacate 2255 and dismissing case with prejudice by District Judge William P. Johnson. (bap)

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.

ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Magistrate Judge Lourdes A. Martínez’ Proposed
Findings and Recommended Disposition (Doc. 15) 1 (hereinafter “PF&RD”), entered on
February 24, 2017.

On March 10, 2017, Defendant/Movant (hereinafter “Defendant”) filed

objections to the PF&RD.

[Doc. 16].

The Government did not respond to Defendant’s

objections and the time for doing so has passed. The Court has conducted a de novo review of
those portions of the PF&RD to which Defendant objects and finds that the objections are without
Accordingly, the Court will: (1) overrule the Defendant’s objections as meritless;

merit.

(2) adopt the PF&RD; (3) deny Defendant’s § 2255 motion [Doc. 12]; and (4) enter a final
judgment dismissing this case with prejudice.
Background
As explained in the PF&RD, 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
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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.”

being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). See [Doc. 15 at 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 id. and [Doc. 12 at 2-3]. Defendant was
subject to the ACCA based on felony convictions for commercial burglary, residential burglary,
and attempted armed robbery. See [Doc. 10 at 9, ¶ 29] (Defendant’s Presentence Report, “PSR”).
In addition, the PSR notes that Defendant 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 prior burglary convictions count as violent felony convictions under the ACCA, but he
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 pursuant to the holding of Johnson
v. United States, 135 S. Ct. 2551 (2015) (“Johnson 2015”). See [Doc. 12 at 3]. Specifically,
Defendant contends that 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). See id.
As further explained in the PF&RD (see Doc. 15 at 3), in Johnson 2015, the Supreme Court
held that the residual clause of the ACCA, is unconstitutionally vague. 135 S. Ct. at 2557. The
Magistrate Judge explained that, since “the residual clause has been found to be unconstitutional,
the Court must determine whether Defendant’s prior convictions [for attempted armed robbery
and aggravated battery] satisfy the definition of ‘violent felony’ under the remaining clauses of the
ACCA.” [Doc. 15 at 3]. As neither of those prior convictions is an enumerated offense under
§ 924(e)(2)(B)(ii), the Magistrate Judge considered whether they fell within the “force clause”
under § 924(e)(2)(B)(i) (see id. at 3-4), and explained that the Supreme Court in Johnson v. United

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States, 559 U.S. 133, 140 (2010) (“Johnson 2010”) 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)).
With regard to Defendant’s attempted armed robbery conviction, the Magistrate Judge
explained that “[r]ecently, 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.’” [Doc. 15 at 7] (quoting United States v. Harris,
844 F.3d 1260, 1269 (10th Cir. 2017)). The Magistrate Judge further noted that, “[r]elying 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.” Id. (citing
United States v. Garcia, No. 16-CIV-240 JB/LAM (Doc. 37 at 55-57)). The Magistrate Judge,
therefore, found that “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.” [Doc. 15
at 8].

In addition, the Magistrate Judge applied the modified categorical approach and

determined that Defendant was convicted of attempted armed robbery, which requires proof of the
element of being “armed with a deadly weapon” during the commission of the offense. Id. at 8-9
(quoting N.M.S.A. 1978 § 30-16-2). The Magistrate Judge noted that the New Mexico Criminal
Code defines “deadly weapon” as “any firearm, whether loaded or unloaded; or any weapon which

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is capable of producing death or great bodily harm” (id., quoting N.M.S.A. 1978 § 30-1-12(B)),
and that the same statute defines “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” (id., quoting
N.M.S.A. 1978 § 30‐1‐12(A)). The Magistrate Judge reasoned that, “[s]ince a conviction for
New Mexico armed robbery requires that the defendant be armed with a deadly weapon, . . . 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.’” Id. The Magistrate Judge rejected
Defendant’s contention that 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 10, quoting Doc. 14 at 3). The Magistrate Judge
found, instead, that “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’” and,
therefore, “a plain reading of the statute shows that Defendant was armed at the time of attempting
to commit robbery.” Id. (quoting N.M.S.A. 1978 § 13-16-2) The Magistrate Judge, therefore,
found that Defendant’s attempted armed robbery conviction constitutes a violent felony under the
force clause of the ACCA.
With regard to defendant’s conviction for aggravated battery, the Magistrate Judge applied
the modified categorical approach and determined that Defendant was convicted of aggravated battery

in violation of § 30-3-5(C), which requires a finding that Defendant 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 id. at 12. The Magistrate Judge

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applied Johnson 2010’s definition of “physical force” to this statute, and found that all three
alternatives under § 30-3-5(C) satisfy this definition. See id. Therefore, the Magistrate Judge
rejected Defendant’s contention that the language in subsection C is vague in the same way as the
ACCA’s residual clause, and found that Defendant’s conviction for aggravated battery is a proper
ACCA-predicate offense. Id. at 13.

Defendant’s Objections
Defendant first objects to the Magistrate Judge’s finding that his attempted armed robbery
conviction satisfies Johnson 2010’s “physical force” definition. See [Doc. 16 at 4-7]. Defendant
contends that the component of being armed while committing robbery “sheds no light on the level
of violence required” (id. at 5), and that New Mexico jury instructions and cases have held that
only a minimal amount of force is necessary to commit New Mexico robbery (see id. at 6).
Therefore, Defendant contends that “we are left with the bare bones of the name of the offense
itself: ‘attempted armed robbery,’” and that “[i]t is not clear on this record 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 7 (citing
N.M.S.A. 1978 § 30-16-3).
The Court finds that this objection is without merit for the same reasons stated by the
Magistrate Judge. The Tenth Circuit’s decision in Harris and this Court’s decision in Garcia
indicate that New Mexico’s third degree robbery likely requires sufficient force under
Johnson 2010 to constitute a violent felony under the ACCA. See [Doc. 15 at 7-9]. Similar to
the Colorado Supreme Court case relied on by the Tenth Circuit in Harris (see 844 F.3d at 1269),
the New Mexico Supreme Court in State v. Bernal, 2006-NMSC-050, ¶ 28, 140 N.M. 644,
146 P.3d 289, in construing the difference between larceny and robbery in New Mexico, found
that, because “robbery generally carries a heavier punishment than larceny, the robbery statute
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clearly is designed to protect citizens from violence.” See [Doc. 15 at 8]. Therefore, the Court
finds that Defendant’s contention that New Mexico robbery does not satisfy the force requirement
of Johnson 2010 is without merit. Moreover, because this finding does not depend on the element
of being armed, the Court finds that Defendant’s contention that his being armed does not increase
the level of force required to commit New Mexico robbery does not affect the Court’s holding. In
addition, the Court rejects Defendant’s contention that it is not clear how the attempt element
applies to his conviction. See [Doc. 16 at 7]. As noted by the Magistrate Judge, Defendant fails
to cite any support for his contention that attempt can apply to the underlying element of being
armed with a deadly weapon, and, regardless, 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.” [Doc. 15 at 10] (quoting § 924(e)(2)(B)(i), emphasis added). Therefore, the
Court finds that Defendant’s objections are without merit and shall be overruled.
Next, Defendant objects to the Magistrate Judge’s finding that New Mexico aggravated
battery satisfies the ACCA’s force clause. See [Doc. 16 at 8-9]. Defendant contends that
aggravated battery does not satisfy the ACCA’s force clause because “aggravated battery becomes
a felony when it is done ‘in any manner whereby great bodily harm or death can be inflicted.’”
Id. at 8 (quoting N.M.S.A. 1978 § 30-3-5(C)). The Court finds that this contention is without
merit because, as explained by the Magistrate Judge, “the third alternative in subsection C
sufficiently 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,
emphasis added), because it requires intent to injure as well as a touching or application of force
that could inflict great bodily harm or death.” [Doc. 15 at 12-13] (emphasis added). Therefore,
the Court shall overrule this objection.

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IT IS THEREFORE ORDERED, for the reasons stated above, that:
1. Defendant’s objections to the PF&RD [Doc. 16] are OVERRULED;
2. The Proposed Findings and Recommended Disposition (Doc. 15) are ADOPTED;
3. Defendant’s § 2255 motion [Doc. 12] is DENIED; and
4. This case shall be DISMISSED with prejudice, and a final judgment will be entered
concurrently with this order.
IT IS SO ORDERED.

__________________________________________
UNITED STATES DISTRICT JUDGE

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