Rhoads v. United States of America
ORDER ADOPTING REPORT AND RECOMMENDATIONSby District Judge Judith C. Herrera ; adopting 17 Report and Recommendations, denying with prejudice 6 Petitioner's Amended Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, and denying a Certificate of Appealability. (baw)
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,
ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS AND
This matter is before the Court on Petitioner’s Objections to the Magistrate
Judge’s Proposed Findings and Recommended Disposition (doc. 18). Being fully
advised, the Court will overrule the objections, adopt the Proposed Findings and
Recommended Disposition (doc. 17), and deny Petitioner’s amended Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (doc. 6).
On November 3, 1997, Petitioner pled guilty to Counts I and III of a four‐count
indictment. See cr. docs. 80, 81. Count I was 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 Count III was
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.
Petitioner’s sentencing guideline range for Count I of the indictment was
determined pursuant to U.S.S.G. § 4B1.1. As reflected in the presentence report (PSR),
Petitioner had two prior felony convictions in New Mexico for Armed Robbery and
Possession with Intent to Distribute Cocaine. PSR ¶¶ 34, 38, 41. Because these offenses
were respectively considered a “crime of violence” and a “controlled substance offense”
under the definitions set forth in U.S.S.G. § 4B1.2,1 Petitioner was subjected to a higher
base offense level due to the application of the career offender enhancement under
U.S.S.G. § 4B1.1. PSR ¶ 41; see also cr. doc. 154 at 5‐6. After a three‐level reduction for
acceptance of responsibility, Petitioner’s total offense level was 31. PSR ¶ 68. With a
criminal history category of V, Petitioner’s sentencing guideline range was 188‐235
months for Count I. Id. Because Petitioner was sentenced prior to the decision in United
States v. Booker, 543 U.S. 220 (2005), which rendered the guidelines advisory, this
guideline range was mandatory. After a sentencing hearing, the Court imposed a
sentence of 188 months as to Count I, to run consecutively with a sentence of 60 months
as to Count III.2 Cr. doc. 154 at 6‐7.
Petitioner now challenges the 188‐month sentence on the basis that the
sentencing guideline range calculated for Count I was wrongfully enhanced pursuant to
Subsection (a)(2) of 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 amendment version.
2 The 60‐month sentence for Count III was statutorily determined pursuant to U.S.S.G. § 2K2.4(a) (1997)
and was unaffected by the career offender enhancement. PSR ¶ 69.
the unconstitutionally vague residual clause of the definition of “crime of violence”
under U.S.S.G. § 4B1.1(a)(2). Specifically, Petitioner’s amended Motion argues that his
conviction for armed robbery is no longer a “crime of violence” in light of Johnson v.
United States, 135 S. Ct. 2551 (2015). See doc. 6 at 1‐2, 5‐22. Petitioner contends that the
Johnson decision should be applied retroactively to invalidate the enhanced base offense
level calculation for Count I, and that he should therefore be resentenced without
application of the career offender provision. See id. at 2, 24‐31. The United States
contends that Petitioner’s motion fails for three reasons: (i) the application of Johnson to
the guidelines should not be given retroactive effect and (ii) his armed robbery
conviction remains a crime of violence under U.S.S.G. § 4B1.2(a)(2) after Johnson. See
doc. 16 at 3‐14.
On January 25, 2017, the Magistrate Judge filed his Proposed Findings and
Recommended Disposition (PFRD). Doc. 17. Because Petitioner was sentenced prior to
Booker, the Magistrate Judge assumed without deciding that application of Johnson to a
mandatory guidelines sentence would have retroactive effect. See id. at 4‐5.
Nonetheless, the Magistrate Judge recommended denying Petitioner’s motion on the
basis that Petitioner’s conviction for New Mexico armed robbery remains a “crime of
violence” under U.S.S.G. § 4B1.1(a), as defined in § 4B1.2(a) (1997), even after redacting
its residual clause.
On January 25, 2017, Petitioner filed Objections to the PFRD. Doc. 18. Petitioner
argues that: (1) the Magistrate Judge’s conclusion that New Mexico armed robbery is a
“crime of violence” differs from the conclusion of another magistrate judge in this
district; (2) in employing the modified categorical approach, the Magistrate Judge failed
to consider whether the facts underlying Petitioner’s armed robbery offense showed
that Petitioner’s specific commission of the crime was violent; (3) Petitioner was
convicted of armed robbery pursuant to a plea agreement which he entered into as part
of a compromise, and therefore the United States has not met its “burden of proving a
crime of violence;” and (4) the Magistrate Judge erroneously indicated that the offense
element of “armed with a deadly weapon” has a bearing on the analysis of whether
New Mexico armed robbery is a “crime of violence.” See doc. 18 at 3‐11. Petitioner
further reserved the right to file supplemental objections relating to the retroactivity
question if necessary. Id. at 2. The United States filed a response stating it had no
objections to the PFRD. Doc. 19.
LEGAL STANDARD APPLICABLE TO OBJECTIONS
Petitioner’s Motion was referred to the Magistrate Judge pursuant to Title 28
U.S.C. § 636(b)(1)(B). See doc. 12. When resolving objections to a magistrate judge’s
PFRD, “[t]he district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject, or
modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. §
636(b)(1)(C). The Tenth Circuit has held “that a party’s objections to [a] magistrate
judge’s report and recommendation must be both timely and specific to preserve an
issue for de novo review by the district court or for appellate review.” United States v.
2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). When neither party objects to a
finding or recommendation, no further review by the district court is required. See
Thomas v. Arn, 474 U.S. 140, 151‐52 (1985). “Issues raised for the first time in objections
to the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater, 75
F.3d 1421, 1426 (10th Cir. 1996).
On March 6, 2017, the Supreme Court issued its ruling in Beckles v. United States.
580 U.S. ___, No. 15‐8544, slip op. (March 6, 2017). In that opinion, the Supreme Court
held that the United States Sentencing Guidelines are not subject to a void‐for‐
vagueness challenge. 580 U.S. at ___, slip op. at 5. Nonetheless, Beckles may not resolve
Petitioner’s motion, because he was sentenced before the sentencing guidelines became
advisory. See Beckles, 580 U.S. at ___ (Sotomayor, J., concurring) (slip op., at 10 n.4)
(“The Court’s adherence to the formalistic distinction between mandatory and advisory
rules at least leaves open the question whether defendants sentenced before our
decision in United States v. Booker, 543 U.S. 220 (2005) . . . may mount vagueness attacks
on their sentences”). Therefore, the Court will assume without deciding that sentences
imposed under the mandatory guidelines, such as Petitioner’s, are subject to void‐for‐
vagueness challenges and will consider Petitioner’s argument on its merits.
In articulating his objections, Petitioner heavily quotes the first PFRD of
Magistrate Judge Kirtan Khalsa from a separate case in this jurisdiction, in which Judge
Khalsa reached the opposite conclusion regarding the same offense. See doc. 18 at 3‐4;
United States v. King, Magistrate Judge’s Proposed Findings and Recommended
Disposition, doc. 12 in Civ. No. 16‐501 MV/KK (D.N.M. Dec. 1, 2016). Petitioner’s
reliance on that PFRD is unavailing for two reasons. First, the United States in King
conceded that New Mexico simple robbery was not a “violent felony,” a concession
which Judge Khalsa gave “some weight” and found that it “tipp[ed] the scales” towards
recommending that the offense did not meet the “violent force” standard of Johnson v.
United States, 559 U.S. 133, 140 (2010).3 King, doc. 12 at 14. No such concession has been
made in this case.
Second, Judge Khalsa later issued a supplemental PFRD in King maintaining the
same position despite the Government’s withdrawal of its concession, but noting that
three magistrate judges (including the Magistrate Judge in this case) and one district
judge in this district had since come to the contrary conclusion. King, doc. 15 at 10‐11
(citing Garcia v. United States, Mem. Op. & Order Overruling Proposed Findings and
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).
Recommended Disposition, doc. 37 in Civ. No. 16‐240 JB/LAM (D.N.M. Jan. 31, 2017)
(Browning, J.); Hurtado v. United States, Magistrate Judge’s Proposed Findings and
Recommended Disposition, doc. 17 in Civ. No. 16‐646 JAP/GJF (D.N.M. Jan. 11, 2017);
Contreras v. United States, Magistrate Judge’s Proposed Findings and Recommended
Disposition, doc. 12 in 16‐cv‐0671 RB/SMV (D.N.M. Dec. 6, 2016); and Baker v. United
States, Magistrate Judge’s Proposed Findings and Recommended Disposition, doc. 9 in
16‐cv‐715 PJK/GBW (D.N.M. Dec. 15, 2016); and the PFRD in this matter). Notably, the
PFRDs to which Judge Khalsa cited were later adopted by the presiding judges in those
matters. See Contreras, Order Adopting Magistrate Judge’s Proposed Findings and
Recommended Disposition, doc. 14 in 16‐cv‐0671 RB/SMV (D.N.M. Feb. 24, 2017) (Brack,
J.); Baker, Order Adopting Magistrate Judge’s Proposed Findings and Recommended
Disposition, doc. 14 in 16‐cv‐715 PJK/GBW (D.N.M. Mar. 17, 2017) (Kelly, J.).4 Thus,
there is significant consensus within this District that New Mexico simple robbery
qualifies as a crime of violence.
Having reviewed these other opinions and the underlying law, this Court holds
that the offense of New Mexico armed robbery “has as an element the use . . . of
physical force against the person of another” and therefore qualifies as a “crime of
violence” under the guidelines without relying on the residual clause. U.S.S.G. §
4B1.2(a)(1). The force necessary to elevate a larceny to a robbery in New Mexico, at the
Hurtado was dismissed pursuant to a voluntary motion for dismissal by the plaintiff following the
issuance of the Beckles decision. See Order Granting Motion for Voluntary Dismissal of Petitioner’s
Motion, doc. 22 in Civ. No. 16‐646 JAP/GJF (D.N.M. Mar. 9, 2017) (Parker, J.).
very least, constitutes the threatened use of force “capable of causing physical pain or
injury to another person” under the Johnson I standard of physical force. 559 U.S. at 140.
The Court agrees with the Magistrate Judge’s proposed finding that such a conclusion is
compelled by the reasoning of United States v. Harris, __ F.3d __, No. 16‐1237, 2017 WL
34458 (10th Cir. Jan. 4, 2017) and the controlling state jurisprudence discussing the
nature of the offense. See, e.g., State v. Bernal, 146 P.3d 289, 296 (N.M. 2006) (contrasting
the offense of robbery to larceny and explaining that the robbery statute is “clearly
designed to protect citizens from violence . . . . Robbery is not merely a property crime,
but a crime against a person”). The fact that the force required to elevate a larceny to a
robbery in New Mexico need only be sufficient to overcome “‘the resistance of
attachment’ should be construed in light of the idea that robbery is an offense against
the person, and something about that offense should reflect the increased danger to the
person that robbery involves over the offense of larceny.” State v. Curley, 939 P.2d 1103,
1106 (N.M. Ct. App. 1997).
The force necessary to meet the Johnson I standard need not be capable of causing
severe bodily injury or even leaving a bruise. See Harris, 2017 WL at *4. Thus, force
capable of overcoming the resistance of attachment, giving rise to an “occasion to
confront the thief, thereby possible leading to an altercation,” is sufficient to at least
threaten force capable of causing injury to the person. Curley, 939 P.2d at 1106. This
conclusion is in accord with the Tenth Circuit’s conclusion in United States v. Lujan that
New Mexico robbery is a violent felony under the Armed Career Criminal Act’s
identical “elements clause.” 9 F.3d 890, 891‐92 (10th Cir. 1993); see also Bernal, 146 P.3d
289, 296 (N.M. 2006) (citing Lujan with approval for the conclusion that New Mexico
robbery involves the use or threatened use of force). The Court’s conclusion is also in
accord with the general consensus of opinion in this district regarding this question of
law, as discussed above. Thus, Petitioner’s objections regarding the distinctions
between the state law analysis contained in the Magistrate Judge’s PFRD and Judge
Khalsa’s conflicting PFRD in King are overruled.
Petitioner next argues that in employing the modified categorical approach, the
Court should look to the specific facts of how he committed the offense. See doc. 18 at 7‐
9. Petitioner objects to the Magistrate Judge’s failure to consider such specific facts in
the PFRD. Id. This argument misunderstands the nature of the modified categorical
approach. See Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). The purpose of that
approach is to determine the elements of the particular offense of which a defendant
was convicted where the statute of conviction is divisible, listing alternative elements
defining multiple different crimes. See id. The modified categorical approach expressly
forbids an inquiry into the underlying facts of the offense as it was committed by a
particular defendant. See id. at 2251 (“How a given defendant actually perpetrated the
crime—what we have referred to as the ‘underlying brute facts or means’ of
commission—makes no difference . . . . The itemized construction gives a sentencing
court no special warrant to explore the facts of an offense, rather than to determine the
crime’s elements and compare them with the generic definition”).
Here, the Magistrate Judge properly looked to the sentencing transcript,
indictment, plea agreement, and state court judgment only insofar as those documents
provided clarity regarding the offense of which Petitioner was convicted under
N.M.S.A. § 30‐16‐2, which lists the elements of three separate offenses. See doc. 17 at 17‐
19. Contrary to Petitioner’s objections, it would not be permissible, under Mathis, to
consider such facts as: (1) Petitioner’s motivations for pleading guilty (as “a matter of
compromise . . . . in exchange for five other counts being dismissed”); (2) any
“additional facts as to what occurred” during the robbery itself, including that a wallet
was stolen and that Petitioner’s co‐defendant “may have been the person that
‘possessed’ the handgun;” or (3) that the state court suspended three‐and‐a‐half years of
Petitioner’s nine‐year sentence for the armed robbery, “obviously finding it was not as
serious as the ‘label’ armed robbery would suggest.” See doc. 18 at 8‐9. The Court
therefore overrules all of Petitioner’s objections which rely on such impermissible fact‐
specific inquiries into the specific offense conduct or the circumstances influencing
Petitioner’s decision to plead guilty to the offense of armed robbery.
Finally, Petitioner objects that the Magistrate Judge erroneously indicated that
the element of the armed robbery offense requiring that an offender be “armed with a
deadly weapon” during its commission bolsters the conclusion that the offense is a
“crime of violence.” See doc. 18 at 9‐11. Specifically, Petitioner argues that if simple
robbery “does not meet the ‘crime of violence’ criteria, simply putting a gun into the
scenario does not change a non‐crime of violence into a crime of violence.” Doc. 18 at 7.
The Court agrees that certain state jurisprudence indicates that mere possession may
satisfy this element, as the Magistrate Judge discussed. See State v. Duran, 570 P.2d 39,
40‐41 (N.M. 1977); State v. Chouinard, 603 P.2d 744, 745 (N.M. 1979); doc. 17 at 20.
However, other controlling case law indicates that a fact‐specific inquiry is necessary in
New Mexico to determine whether possession of a deadly weapon during a robbery
elevates the crime to armed robbery. See State v. Hamilton, 6 P.3d 1043, 1045 (N.M. Ct.
Regardless, it is unnecessary to consider whether committing robbery while
armed with a deadly weapon elevates it to an even more violent “crime of violence”
than simple robbery. Adopting Petitioner’s argument would not alter the Court’s
ultimate conclusion, as the Court finds that even simple robbery in New Mexico
qualifies as a “crime of violence” under the elements clause of the guidelines, as
discussed above. The Court therefore declines to reach a conclusion regarding that
objection to the Magistrate Judge’s PFRD, as it has no bearing on the disposition of
Petitioner’s prior offense of armed robbery remains a crime of violence under the
sentencing guidelines irrespective of the residual clause. Therefore, even post‐Johnson
II, Petitioner’s criminal history satisfies the requirements of the career offender
enhancement under U.S.S.G. § 4B1.4(b).
The Court must issue or deny a certificate of appealability (COA) when it enters
a final order adverse to the applicant. A COA should issue “only if the applicant has
made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). An applicant can satisfy this standard by demonstrating that the issues
raised are debatable among jurists, a court could resolve the issues differently, or the
questions deserve further proceedings. Slack v. McDaniel, 529 U.S. 473, 483‐84 (2000).
After considering the issues raised and their disposition, the Court will deny a COA.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED and DECREED that:
(1) Petitioner Rhoads’ objections (doc. 18) are OVERRULED;
(2) The Magistrate Judge’s Proposed Findings and Recommended Disposition
(doc. 17) is ADOPTED;
(3) Petitioner’s amended Motion to Vacate, Set Aside, or Correct Sentence under
28 U.S.C. § 2255 (doc. 6) is DENIED WITH PREJUDICE; and
(4) A certificate of appealability is DENIED.
JUDITH C. HERRERA
United States District Judge
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