Rhoads v. United States of America
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Gregory B. Wormuth recommending the Court DENY 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Phillip Jason Rhoads. Objections to R&R due by 2/ 8/2017. 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).) (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PHILLIP JASON RHOADS,
No. CV 16‐325 JCH/GBW
CR 96‐571 JCH
UNITED STATES OF AMERICA,
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter is before the Court on Petitioner’s Amended Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 (doc. 1)1 and his subsequent
amendment thereto (doc. 6). Having reviewed the pleadings and record before the
Court, I recommend denying the Motion.
On November 3, 1997, Petitioner pled guilty to one count of Possession with
Intent to Distribute More than 100 Grams and More of a Mixture or Substance
Containing Methamphetamines, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B) and 18
U.S.C. § 2, and one count of Carrying a Firearm During and in Relation to a Drug
Trafficking Crime, in violation of 18 U.S.C. § 924(c). See cr. docs. 1, 80, 81; see also
Presentence Report (“PSR”) ¶ 3. The drug trafficking offense carried a mandatory
Citations to “doc.” refer to docket numbers filed in Case No. 16‐CV‐325‐JCH/GBW. Citations to “cr. doc.”
refer to the attendant criminal docket, Case No. 96‐CR‐571‐JCH. For filings made on both dockets, only
the civil docket number is given.
minimum sentence of five years imprisonment and a maximum of forty years
imprisonment, and the firearm enhancement carried an additional mandatory five years
imprisonment. PSR at 1, ¶ 41. After the three‐level reduction for acceptance of
responsibility under the United States Sentencing Guidelines (U.S.S.G.) §§ 3E1.1(a) and
(b)(2) (1997), Petitioner’s total offense level was calculated at 27. PSR ¶ 28.
Additionally, the PSR calculated that Petitioner’s criminal history category was V. PSR
Ordinarily, an offense level of 27 with a criminal history category of V would
establish a guideline imprisonment range of 120 to 150 months. Cr. doc. 154 at 5.
However, as reflected in the PSR, Petitioner had two prior felony convictions for Armed
Robbery and Possession with Intent to Distribute Cocaine. PSR ¶¶ 34, 38, 41. Because
the former conviction was considered a “crime of violence” under U.S.S.G. § 4B1.2(a),2
and the latter was a controlled substance offense under U.S.S.G. § 4B1.2(b), Petitioner
qualified as a career offender under U.S.S.G. § 4B1.1(a).3 PSR ¶ 41; see also cr. doc. 154 at
5‐6. Petitioner’s offense level was thus adjusted to 31 under the career offender
enhancement because the statutory maximum for his drug trafficking offense was 25
years or more, and his guideline imprisonment range became 188 to 235 months.
U.S.S.G. § 4B1.1(b) (1997); see also PSR ¶ 68. After a sentencing hearing, the Court
This provision was amended on August 1, 2016. The amendment deleted the residual clause discussed
herein from the definition of “crime of violence.” The remainder of the definition remained the same.
Because it is the relevant provision, references and citations to U.S.S.G. § 4B1.2(a)(2) refer to the pre‐2016
3 Both convictions also satisfied the additional requirements of U.S.S.G. § 4B1.1(c).
imposed a sentence of 188 months. See cr. doc. 154 at 6.
Petitioner’s Motion argues that his conviction for armed robbery is no properly
categorized as a § 4B1.2(a) “crime of violence” in light of Johnson v. United States, 135 S.
Ct. 2551 (2015). See generally doc. 6. In Johnson, the Supreme Court held that the residual
clause of the definition of “violent felony” under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(2)(B) – “or otherwise involves conduct that presents a
serious potential risk of physical injury to another”—is unconstitutionally vague. 135 S.
Ct. at 2563. Therefore, individuals could not be subject to the ACCA if their underlying
prior convictions qualified as “violent felonies” only under the vague residual clause.
Id. The Supreme Court announced that Johnson would apply retroactively on collateral
review in Welch v. United States, reasoning that Johnson announced a substantive new
rule. 136 S. Ct. 1257, 1264‐65 (2016).
However, Petitioner was not sentenced pursuant to the ACCA. Instead, as
described above, he received an increase to his sentencing guideline range pursuant to
the career offender guideline due to his “two prior felony convictions of either a crime
of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). That guideline
provision resulted in a four‐level increase to the base offense level pursuant to U.S.S.G.
§ 4B1.1(b). As already discussed, the enhancement was based on one prior conviction
for a “controlled substance offense,” as defined in § 4B1.2(b), and one “crime of
violence,” as defined in § 4B1.2(a). See cr. doc. 154 at 5‐6. The definition of “crime of
violence,” as used in the career offender guideline, contains a residual clause identical
to the residual clause in the ACCA. See U.S.S.G. § 4B1.2(a)(2); 18 U.S.C. §
924(e)(2)(B)(ii). In order to be entitled to resentencing on the basis that his conviction
for armed robbery is not a “crime of violence,” Petitioner must first establish that the
residual clause of the guideline provision is also unconstitutional for vagueness. In
United States v. Madrid, 805 F.3d 1204, 1210‐11 (10th Cir. 2015), on direct appeal, the
Tenth Circuit indeed held that use of the residual clause in U.S.S.G. § 4B1.2 to calculate
and enhance sentencing guideline ranges is unconstitutional because the clause is void
for vagueness. Consequently, the United States has conceded this point.4 Next, because
Petitioner’s motion is a collateral attack on his sentence, he must establish that relief
pursuant to Johnson and Madrid applies retroactively. Finally, assuming retroactive
effect, Petitioner must demonstrate that his sentence was enhanced pursuant to the
residual clause of U.S.S.G. § 4B1.2(a)(2).
Petitioner does not contest that his conviction of a controlled substance offense
was a valid partial basis for the § 4B1.1(a) enhancement. See generally docs. 1, 6. Thus,
the only issues remaining for the Court to address are the retroactivity of
Johnson/Madrid and whether New Mexico armed robbery still qualifies as a “crime of
Though this issue is resolved for the time being in this Circuit, other courts have concluded otherwise.
See e.g., United States v. Matchett, 802 F.3d 1185, 1193‐96 (11th Cir. 2015). This issue is currently before the
Supreme Court in Beckles v. United States (S. Ct. No. 15‐8544). Indeed, at oral argument, several Justices
appeared to express skepticism about holding the guideline provision unconstitutional on vagueness
grounds. See Transcript of Oral Argument at 9‐15, Beckles v. United States (S. Ct. No. 15‐8544) (2016).
Obviously, if in Beckles, the Supreme Court determines that the guideline provision is not void for
vagueness, Petitioner’s claim fails.
violence” under U.S.S.G. § 4B1.2(a) without the residual clause. Because I conclude that
New Mexico armed robbery remains a “crime of violence” under the guidelines even
absent the residual clause, I need not address the retroactivity question.5
While a “crime of violence” justifying a career offender enhancement under the
guidelines is distinct from the “violent felony” provision of the ACCA, the Tenth
Circuit has instructed that because the definition of the former is “almost identical” to
the definition of the latter, “the Supreme Court’s analysis under the ACCA ‘applies
equally to the sentencing guidelines.’” United States v. Charles, 576 F.3d 1060, 1068 n.2
(10th Cir. 2009) (citing United States v. Tiger, 538 F.3d 1297, 1298 (10th Cir. 2008)). The
Court may therefore apply relevant precedent regarding one provision interchangeably
to the other.
When determining whether a prior conviction constitutes a “crime of violence”
under the guidelines, the Court generally employs the categorical approach, which
involves “looking only to the statutory definitions of the prior offenses, and not to the
particular facts underlying those convictions.” United States v. Perez‐Vargas, 414 F.3d
1282, 1284 (10th Cir. 2005) (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)).
However, if the statute defining the prior offense is divisible, the Court will then apply
The undersigned still concludes that, for sentences imposed after United States v. Booker, 543 U.S. 220
(2005), Johnson/Madrid are not retroactive. See Valdez v. United States, Magistrate Judge’s Proposed
Findings and Recommended Disposition, doc. 10 at 8‐14 in 16‐cv‐0727 JB/GBW (D.N.M. Dec. 6, 2016).
However, Petitioner’s sentence was imposed pre‐Booker. That fact significantly impacts the retroactivity
analysis. See, e.g., Hawkins v. United States, 724 F.3d 915, 918 (7th Cir. 2013).
what is known as a “modified‐categorical approach.” See Mathis v. United States, 136 S.
Ct. 2243, 2249 (2016) (explaining that “divisible” statutes are those that “list elements in
the alternative, and thereby define multiple crimes”). Under this approach, the Court
should consult “a limited class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy)” to determine whether the defendant in a
particular case was convicted of a crime that categorically qualifies as a crime of
Petitioner argues that his conviction for armed robbery no longer satisfies the
definition of “crime of violence” under U.S.S.G § 4B1.2 after redacting its residual
clause, which the Tenth Circuit held to be unconstitutionally vague in light of Johnson.
See doc. 6 at 6‐22. Madrid, 805 F.3d at 1210‐11. Petitioner asserts he is therefore entitled
to resentencing on the basis that the career offender enhancement was
unconstitutionally applied to increase his sentencing guideline range. See generally doc.
As a preliminary matter, Petitioner’s conviction of armed robbery clearly does
not qualify as a “crime of violence” under the clause enumerating the specific crimes of
“burglary of a dwelling, arson, or extortion,” or those “involv[ing] the use of
explosives.” U.S.S.G. § 4B1.2(a)(2). Therefore, the pertinent question is whether armed
robbery qualifies as a crime of violence under the “elements clause”—that is, whether
the crime of armed robbery in New Mexico “has as an element the use, attempted use,
or threatened use of physical force against the person of another[.]” Id. at (a)(1). The
elements clause of the definition of “crime of violence” under the guidelines is identical
to the corresponding clause in the definition of “violent felony” under the ACCA. See
18 U.S.C. § 924(e)(2)(B)(i); U.S.S.G. § 4B1.2(a)(1). In Johnson v. United States, 559 U.S. 133,
140 (2010),6 the Supreme Court explained that the term “physical force” as used in the
ACCA “means violent force—that is, force capable of causing physical pain or injury to
another person.” (Emphasis in original.) Nonetheless, the force required to satisfy that
element need not be sufficient to cause serious injury—it “might consist . . . of only that
degree of force necessary to inflict pain—a slap in the face, for example.” Id. at 1272.
A. Robbery in New Mexico is a “crime of violence” under the Guidelines.
Petitioner’s conviction is based upon a violation of New Mexico’s robbery
statute, which provides as follows:
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 (1978) (emphasis added). See also docs. 16‐1, 16‐2 (Petitioner’s
To avoid confusion, this case will be referred to as Johnson I to distinguish it from the 2015 Johnson
opinion striking down the residual clause of the ACCA (hereinafter referred to as Johnson II).
indictment and guilty plea relating to the armed robbery charge).
New Mexico courts have held that the “use or threatened use of force” must be
against the person of another to satisfy this element. See, e.g., State v. Bernal, 146 P.3d
289, 296 (N.M. 2006); State v. Curley, 939 P.2d 1103, 1106 (N.M. Ct. App. 1997). For
example, the New Mexico Supreme Court has instructed that, in contrast to the statute
criminalizing larceny, the robbery statute “is clearly designed to protect citizens from
violence . . . . Robbery is not merely a property crime, but a crime against a person.”
Bernal, 146 P.3d at 296. The New Mexico Court of Appeals has similarly explained that
the requirement that property be taken with sufficient force “so as to overcome the
resistance of attachment” before larceny is elevated to robbery is intended to reflect “the
increased danger to the person that robbery involves over the offense of larceny.”
Curley, 939 P.2d at 1106.
The state law jurisprudence regarding the statute instructs that “[t]he use of
force, violence, or intimidation is an essential element of robbery.” State v. Lewis, 867
P.2d 1231, 1233 (N.M. Ct. App. 1993). “The force or intimidation is the gist of the
offense.” State v. Sanchez, 430 P.2d 781, 782 (N.M. Ct. App. 1967). The phrase “or
violence,” as used in the statute, “do[es] not substantively state an alternative means of
committing the offense[.]” Curley, 939 P.2d at 1104. New Mexico courts thus use the
terms “force” and “violence” interchangeably when discussing whether the force
element of the statute has been met by an offense. See id.
The force or fear required under the state robbery statute “must be the moving
cause inducing the victim to part unwillingly with his property. It must overcome the
victim’s resistance. It must compel one to part with his property. It must be such that
the power of the owner to retain his property is overcome.” Sanchez, 430 P.2d at 782
(internal citations omitted). The “use of force to retain property or to facilitate escape
does not satisfy the force element necessary for the crime of robbery.” Lewis, 867 P.2d at
1233‐34. Rather, “the use or threatened use of force must be the factor by which the
property is removed from the victim’s possession.” Id. at 1233. For example, the Curley
court concluded that the defendant was entitled to an instruction on the lesser included
offense of larceny even though he shoved the victim before taking her purse, because
the jury could have found that the shove was accidental and independent of the taking,
and that the defendant thus “took the purse by surprise from a person who was not
resisting, and not by force necessary to overcome any resistance.” 939 P.2d at 1107.
Whether the force employed during a larceny is sufficient to elevate the offense
to robbery requires an evaluation by the fact‐finder. See State v. Clokey, 553 P.2d 1260,
1260 (“The question of whether or not the snatching of the purse from the victim was
accompanied by sufficient force to constitute robbery is a factual determination, within
the province of the juryʹs discretion.”). De minimis force will not do to sustain a robbery
conviction. See Curley, 939 P.2d at 1105 (“[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, and not robbery.”). Mere “touching or jostling,” or even the more overtly
forceful act of pressing a fist into the victim’s back while stealing his property, are all
insufficient to establish the force element; such circumstances support only the lesser
conviction of larceny. Sanchez, 430 P.2d at 782. As the Curley court explained, “if we
remember that the reason for the distinction [between robbery and larceny] is the
increased danger to the person” accompanying the crime of robbery, “then an increase
in force that makes the victim aware that her body is resisting could lead to the dangers
that the crime of robbery was designed to alleviate[,]” such as violent altercations or
confrontations. Curley, 939 P.2d at 1106. In the end, as the Supreme Court of New
Mexico has explained, “robbery is a crime designed to punish the use of violence” and
“to protect citizens from violence.” Bernal, 146 P.3d at 296.
Petitioner argues that the amount of force required under the New Mexico
robbery statute is not categorically sufficient to meet the standard outlined in Johnson
I—that is, “force capable of causing physical pain or injury to another person.” 559 U.S.
at 140. See doc. 6 at 16‐22. In support, he cites to state jurisprudence instructing that
“[t]he amount or degree of force is not the determinative factor” in establishing the
force element of simple robbery, State v. Martinez, 513 P.2d 402, 402 (N.M. Ct. App.
1973), as well as to the committee commentary of the New Mexico jury instruction on
simple robbery, which explains that “the amount of force is immaterial.” N.M. R. CR.
To the extent that these authorities suggest that no significant force is required to
satisfy the force element of New Mexico robbery, they are contrary to controlling New
Mexico jurisprudence on the point. As cited above, case after case held that robbery
requires the force “must overcome the victim’s resistance. It must compel one to part
with his property. It must be such that the power of the owner to retain his property is
overcome.” Sanchez, 430 P.2d at 782 (internal citations omitted); see also Curley, 939 P.2d
at 1104‐06; Lewis, 867 P.2d at 1233‐34; Sanchez, 430 P.2d at 782. In fact, the Curley court
explicitly rejected what it described as “dictum” from Martinez “that even a slight
amount of force, such as jostling the victim or snatching away the property, is
sufficient” force for a robbery conviction. Curley, 939 P.2d at 1104 (citing Martinez, 513
P.2d at 403).
The Tenth Circuit recently provided a useful reminder of the nature of the
relevant inquiry in United States v. Harris, __ F.3d __, No. 16‐1237, 2017 WL 34458 (10th
Cir. Jan. 4, 2017). In considering whether the Colorado offense of robbery qualified as a
“violent felony” under the elements clause of the ACCA, the Harris court began its
analysis with the “oft‐quoted” language from Johnson I: “We think it clear that in the
context of a statutory definition of ‘violent felony,’ the phrase ‘physical force’ means
violent force—that is, force capable of causing physical pain or injury to another
person.” Id. at *3 (citing Johnson I, 559 U.S. at 140) (emphasis in original). The reminder
It is important to keep in mind why it was necessary for the Court to use
the language it did. For it was rejecting the government’s argument that
physical force means “force” known in common law battery parlance. See
Johnson I, 559 U.S. at 139, 130 S. Ct. 1265 (“There is, however, a more
specialized legal usage of the word ‘force’: its use in describing one of the
elements of the common‐law crime of battery. . . .”). That is, the force
element is satisfied by even the slightest offensive touching. Id. (citing
among others 3 William Blackstone, Commentaries on the Laws of England
120 (1768) [hereinafter Blackstone] ). So it makes sense that the Court, in
construing the meaning of physical force in the ACCA’s violent felony
definition, referenced “a substantial degree of force,” “strong physical
force,” or “powerful force.” Indeed, the Court was differentiating
between the force required for the common law offense of battery.
Id. at *4. This passage serves to emphasize that, by requiring something more than the
slightest offensive touching – “a substantial degree of force” – to satisfy the elements
clause of the “violent felony” definition, Johnson I did not thereby create a requirement
of extreme violence. As Harris highlighted, force “capable of causing physical pain or
injury” includes “a slap in the face.” Id. (citing Johnson I, 559 U.S. at 143). In fact, the
court cited with approval Justice Scalia’s concurrence which identifies “[h]itting,
slapping, shoving, grabbing, pinching, biting, [and] hair pulling” as conduct which
qualifies as violent force. Id. (quoting United States v. Castleman, 134 S. Ct. 1405, 1421
(2014) (Scalia, J., concurring)). Moreover, the Harris court stressed that “in construing
the minimum culpable conduct [required by the state statute], such conduct only
includes that [to] which there is a ’realistic probability, not a theoretical possibility’ the
state statute would apply.” Id. at *3 (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1685
With these standards in mind, the court held that the force required by
Colorado’s robbery statute matched the definition of “physical force” set forth in
Johnson I. Id. at *4‐*9. Notably, two features of Colorado robbery which were central to
the court’s holding are shared in common with the New Mexico crime of robbery. First,
as in New Mexico, robbery in Colorado requires a taking “by violence or intimidation.”
Id. at *5 (citing People v. Borghesi, 66 P.3d 93, 99 (Colo. 2003)) (emphasis added); see also
Lewis, 867 P.2d at 1233 (emphasis added). That is, both statutes require that the force (or
threat of force) used must be the means by which the taking is accomplished. Second,
as in New Mexico, “Coloradoʹs ‘robbery statutes are primarily intended to protect
persons and not property.’” Harris, 2017 WL 34458, at *5 (citing Borghesi, 66 P.3d at 100‐
01); see also Bernal, 146 P.3d at 296. Consequently, both statutes emphasize the
“assaultive nature of the crime[.]” Harris, 2017 WL 34458, at *5.
Admittedly, there are differences between Colorado’s and New Mexico’s
respective robbery jurisprudence by which one could distinguish Harris from the
present case. However, Harris stands for a broader point. It serves as a reminder that
the definition set forth in Johnson I of “physical force,” as used in the elements clause of
both the ACCA and U.S.S.G. § 4B1.2(a), encompasses actions falling far short of extreme
violent force in the nature of Hollywood movies. Johnson I did reject the “slightest
offensive touching” common‐law standard of “force,” instead demanding “a substantial
degree of force.” But even actions like pinching and slapping are sufficiently forceful
under Johnson I to amount to “violent physical force.” To the undersigned, it appears
self‐evident that the force required for robbery in New Mexico—force which overcomes
the victim’s resistance and compels the victim to part with his property—is at least
commensurate to the slapping adequate under Johnson I. Therefore, I conclude that the
crime of robbery in New Mexico “has as an element the use . . . of physical force against
the person of another.” U.S.S.G. § 4B1.2(a)(1).
Even if one were to reject this conclusion, New Mexico robbery would still
qualify as a “crime of violence” if it “has as an element the . . . threatened use of physical
force against the person of another.” Id. (emphasis added). As noted above, New
Mexico “robbery is a crime designed to punish the use of violence” and “to protect
citizens from violence.” Bernal, 146 P.3d at 296. This foundation is the basis for the
New Mexico requirement that the force used must be sufficient to overcome the
“resistance of attachment.” Curley, 939 P.2d at 1105. As the Curley court explained,
“[s]ubtle differences in the amount of force used, alone, is neither a clear nor reasonable
basis to distinguish the crime of robbery from that of larceny. However, if we
remember that the reason for the distinction is the increased danger to the person”
accompanying the crime of robbery, “then an increase in force that makes the victim
aware that her body is resisting could lead to the dangers that the crime of robbery was
designed to alleviate[,]” such as violent altercations or confrontations. Id. at 1106. In
other words, robbery is distinguished from larceny not just by the force actually used,
but also by the force intrinsically threatened.
The analysis set forth by the Curley court regarding the force element of New
Mexico robbery directly parallels the rationale in United States v. Ramon Silva, in which
the Tenth Circuit Court of Appeals held that “apprehension causing” aggravated
assault is categorically a “violent felony” under the “threatened use of force” prong of
the ACCA elements clause. 608 F.3d 663, 670‐71 (10th Cir. 2010). There, the court
reasoned that the conduct proscribed by the offense “threatens the use of ‘violent’ force
because by committing such an act, the aggressor communicates to his victim that he
will potentially use ‘violent force’ against the victim in the near  future,” and because
such conduct “always has the potential to lead to ‘violent force.’” Id. (quoting Johnson I,
559 U.S. at 140) (emphasis in original). Based upon the reasoning of Ramon Silva, the
force required to meet the “use of force” element in the New Mexico robbery statute
must at the very least satisfy the “threatened use of force” portion of the elements clause
defining a “crime of violence” under the guidelines.
Based on the foregoing, I conclude that the New Mexico robbery statute “has as
an element the use [and the] threatened use of physical force against the person of
another” as defined by Johnson I. U.S.S.G. § 4B1.2(a)(1). Therefore, all crimes of robbery
in New Mexico are categorically crimes of violence. 7 See also Contreras v. United States,
This conclusion is also supported by the textual history of the ACCA and the Supreme Court’s
interpretation of its general scope. As noted above, while a “crime of violence” justifying a career
offender enhancement under the guidelines is distinct from the “violent felony” provision of the ACCA,
the Tenth Circuit has instructed that because the definition of the former is “almost identical” to the
Magistrate Judge’s Proposed Findings and Recommended Disposition, doc. 12 at 8‐18 in
16‐cv‐0671 RB/SMV (D.N.M. Dec. 6, 2016) (concluding that New Mexico simple robbery
qualifies as a predicate conviction under the elements clause of the ACCA).
Though its decision predates Johnson I, the Tenth Circuit Court of Appeals has
reached the same conclusion. See United States v. Lujan, 9 F.3d 890, 891‐92 (10th Cir.
1993). In Lujan, the Court of Appeals confronted a defendant convicted of
manslaughter in California and robbery in New Mexico, under the same statute at issue
here. Id. at 891. In holding that both convictions constitute “violent felonies” under the
ACCA, the court explained: “[The California manslaughter statute] has ‘as an element
the use, attempted use, or threatened use of physical force against the person of
another’ and thus is a violent felony under the ACCA. The New Mexico robbery statute
definition of the latter, “the Supreme Court’s analysis under the ACCA ‘applies equally to the sentencing
guidelines.’” United States v. Charles, 576 F.3d 1060, 1068 n.2 (10th Cir. 2009) (citing Tiger, 538 F.3d at
1298). “Prior to the enactment of the current language, the [ACCA] applied its enhanced sentence to
offenders with ‘three previous convictions for robbery or burglary.’” Begay v. United States, 553 U.S. 137,
143 (2008). The Supreme Court has explained that Congress changed the language of the statute in order
“to expand that definition to include both crimes against the person (clause (i)) and certain physically
risky crimes against property (clause (ii)).” Id. at 143‐44 (emphasis added); see also Taylor v. United States,
495 U.S. 575, 582 (1990) (describing a 1986 amendment to the ACCA as one that “expanded the predicate
offenses triggering the sentence enhancement from ‘robbery or burglary’ to ‘a violent felony or a serious
drug offense[.]”). Certainly, if generic robbery was originally included and the definition was
subsequently expanded, generic robbery would remain within the ambit of the ACCA. Moreover, as
generic robbery is a crime against the person, it would fall within clause (i) of the ACCA – the “force”
clause. Notably, New Mexico’s robbery statute is narrower than the uniform generic definition of
robbery. New Mexico still requires that a defendant “must use force before or during the taking itself” in
order to commit robbery. United States v. Garcia‐Caraveo, 586 F.3d 1230, 1235 (10th Cir. 2009). This
requirement is a relic of the strict common law to which only five states, including New Mexico, still
adhere. Id. In contrast, generic robbery incorporates the more lenient “continuing offense theory”—an
act of force or violence committed to facilitate escape suffices to satisfy the force element of robbery. See
id. at 1234‐37. Therefore, as generic robbery should remain within the force clause of the ACCA after its
expansion, so should New Mexico’s narrower version.
also contains the required element of force[.]” Id. at 892 (quoting and italicizing for
emphasis the force element of N.M.S.A. § 30‐16‐2).
B. Armed Robbery in New Mexico is a “crime of violence” under the Guidelines
While I conclude that simple robbery under New Mexico law qualifies as a crime
of violence under the guidelines, Petitioner was convicted of the more serious offense of
robbery while armed with a deadly weapon. This fact further bolsters the conclusion
that his conviction was a valid “crime of violence” predicate for the career offender
The New Mexico robbery statute is divisible.
The New Mexico robbery statute defines the three separate crimes of first degree,
second degree, and third degree felony robbery by listing elements in the alternative.
See N.M.S.A. § 30‐16‐2. Unlike third degree (simple) robbery, Petitioner’s conviction
required proof of the element of being “armed with a deadly weapon” during
commission of the offense, elevating it to a second degree felony for the first offense.
See id. As such, a conviction of armed robbery carries a different and greater statutory
penalty than a conviction of simple robbery.8 See N.M.S.A. § 31‐18‐15. It is thus a
divisible statute, and the Court should employ the modified categorical approach in
While Petitioner correctly notes in the Statement of Facts of his Motion that he was convicted of armed
robbery (see doc. 6 at 3), he thereafter repeatedly argues throughout his Motion that third degree (simple)
robbery is not a crime of violence under the guidelines. See id. at 15‐19, 21. Even if the Court agreed with
that conclusion on its merits—which I recommend it should not—such a conclusion does not establish in
any event that Petitioner’s conviction of second degree (armed) robbery is not a crime of violence under
the guidelines, which is the relevant question before the Court.
determining whether armed robbery qualifies as a “crime of violence” under U.S.S.G. §
4B1.2. See Mathis 136 S. Ct. at 2256 (instructing that “[i]f statutory alternatives carry
different punishments, then under Apprendi they must be elements.”). This approach
requires the Court to consult the universe of documents including the indictment, plea
agreement and colloquy to determine whether the particular offense of which a
defendant was convicted—here, second degree (armed) robbery in New Mexico—is
categorically a “crime of violence” under the elements clause of the guidelines. See
Mathis, 136 S. Ct. at 2249.
During the sentencing hearing, the sentencing judge stated clearly that the
predicate convictions justifying Petitioner’s career offender enhancement included
Possession with Intent to Distribute Cocaine and “Armed Robbery in the Second
Judicial District Court, Bernalillo County, New Mexico.” Cr. doc. 154 at 5‐6. The PSR
also included these specific offenses as the relevant basis for the career offender
enhancement. PSR ¶ 41.
Moreover, in its briefing on the present Motion, Respondent provided the Court
with the indictment, plea agreement, and judgment associated with Petitioner’s armed
robbery conviction. See docs. 16‐1, 16‐2, 16‐3. The indictment provides in Count 1 that
Petitioner “took and carried away” items of value from another person, “or from his
immediate control, intending to permanently deprive [the victim] of the property, and
was armed with a HANDGUN, a deadly weapon, and took the property by use or
threatened use of force or violence, contrary to [N.M.S.A. §] 30‐16‐2.” Doc. 16‐1 at 1.
The guilty plea provides that Petitioner “agrees to plead guilty to . . . ARMED
ROBBERY (FE), a 2nd degree felony committed on or between March 7, 1995 and March
8, 1995 as charged in Count 1 of the Indictment.” Doc. 16‐2 at 1. Finally, the judgment
by the state court plainly stated that Petitioner was “convicted . . . pursuant to a
GUILTY PLEA . . ., of the offense of ARMED ROBBERY (FE), as charged in Count 1 of
the Indictment[.]” Doc. 16‐3 at 1. Thus, each of these documents places the question
beyond doubt that Petitioner was convicted of second degree (armed) robbery rather
than third degree (simple) robbery.
Armed robbery, as an offense independent of simple robbery, is a crime of
violence under the guidelines.
The New Mexico Criminal Code provides the uniform definition of “deadly
weapon” as “any firearm, whether loaded or unloaded; or any weapon which is capable
of producing death or great bodily harm,” followed by a list of examples of weapons
that meet this definition. N.M.S.A. § 30‐1‐12(B). The same statute sets forth the uniform
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.” Id. § 30‐1‐12(A).
There can be no doubt that, if use of a deadly weapon during the robbery were
required for a conviction for armed robbery, armed robbery would constitute a crime of
violence under the guidelines. However, some New Mexico cases suggest that no use
of the weapon is required. See, e.g., State v. Duran, 570 P.2d 39, 40‐41 (N.M. 1977)
(rejecting as “not necessarily true” the State’s contention that a jury’s finding of guilt on
a New Mexico armed robbery charge “necessarily determined that defendant used a
firearm,” as required to justify a firearm enhancement); see also State v. Chouinard, 603
P.2d 744, 745 (N.M. 1979) (distinguishing a statute providing for a sentence
enhancement where a firearm is “used” in the commission of a felony from statutes
allowing punishment of mere possession and non‐use, including the New Mexico
armed robbery statute as a specific example, and citing Duran for the proposition that
firearm “‘[u]se’ is different from ‘possession’”).
However, the New Mexico Court of Appeals has made clear that whether the
element of having been “armed with a deadly weapon” during the commission of a
robbery is satisfied requires more than determining that the defendant merely
possessed such a weapon. See State v. Hamilton, 6 P.3d 1043 (N.M. Ct. App. 2000); see
also Lewis, 867 P.2d at 1232‐33 (use of a weapon solely to facilitate escape does not
constitute armed robbery where no force is used or threatened to obtain a victim’s
property prior to escape). In Hamilton, the defendant broke into the victim’s home, and
began demanding and taking property. 6 P.3d at 1045. When he entered the home, he
did not possess a firearm. Id. However, during the course of his initial thefts, he found
and took a firearm:
After finding the handgun, Defendant told Means to give him all of her
money. She again told Defendant that she did not have any money, but
Defendant reached in[to] Meansʹs purse and found a twenty dollar bill,
which he took. Next, Defendant pointed the gun at Means’s abdomen
then moved the gun quickly to one side and fired, narrowly missing
Means but putting a hole in the couch.
The defendant in Hamilton argued that he could not be convicted of armed
robbery because he acquired the firearm during the course of the robbery. Id. In its
review of relevant cases, the court reasoned that “the determination of whether a
defendant who seizes a weapon during the commission of a robbery is armed ‘while’
committing the robbery is highly fact sensitive. When the defendant acquires the
weapon and how he uses it after its acquisition are paramount.” Id. (emphasis added).
The Hamilton holding could be read as focusing on the meaning of “while.” Under this
interpretation, the crucial question would be whether the defendant possessed the
firearm at the time the robbery was occurring. However, if true, “how he uses it after
its acquisition” would not be relevant, let alone “paramount.” The court would have
considered only when the firearm was acquired and whether the robbery was still in
progress. Instead, Hamilton supports the conclusion that mere possession of the firearm
during the robbery without any use whatsoever is insufficient for the crime of armed
robbery under New Mexico law.
Even assuming without deciding that armed robbery could be committed where
a defendant never uses a deadly weapon during the commission of the offense,
Petitioner’s conviction is categorically a crime of violence under the guidelines. This is
so, first of all, because simple robbery alone satisfies the requirements of the elements
clause, as discussed above. Thus, commission of a simple robbery while possessing a
firearm without using it also satisfies the requirements of the elements clause.
Secondly, in light of the relevant state law, Petitioner was necessarily convicted
of (1) using or threatening the use of force against the person of another, (2) such that
the victim’s resistance to parting with his property was overcome, (3) while armed with
a weapon capable of producing death or great bodily harm. See N.M.S.A. § 30‐16‐2;
Bernal, 146 P.3d at 296; Sanchez, 430 P.2d at 782; N.M.S.A. § 30‐1‐12(B). Particularly
given the possession of a deadly weapon, there is categorically no way for Petitioner to
have engaged in such conduct without at the very least “communicat[ing] to his victim
that he will potentially use ‘violent force against the victim in the near  future.” See
Ramon Silva, 608 F.3d. at 670 (quoting Johnson I, 559 U.S. at 140). Such an act thus
always threatens the use of “force capable of causing physical pain or injury to another
person” and therefore meets the Johnson I standard.
Petitioner’s challenge to his sentence under Johnson II should be denied. Even
assuming the applicability of Johnson II to the guidelines, and further assuming that
such a rule is retroactive, his criminal history includes one conviction of a controlled
substance offense and one conviction of a crime of violence, which trigger the
application of the career offender enhancement under U.S.S.G. § 4B1.1.
Accordingly, I recommend that the Court DENY Defendant’s Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255, and dismiss this case with
GREGORY B. WORMUTH
United States Magistrate Judge
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen‐day
period 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
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