Hammons v. Tracy et al

Filing 28

REPORT AND RECOMMENDATIONS by Magistrate Judge Lourdes A. Martinez re 6 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Robert Lester Hammons. Objections to R&R due by 5/9/2017. 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 16-0499 JB/LAM
CR 07-1164 JB

ROBERT L. HAMMONS,
Defendant/Movant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION1
THIS MATTER is before the Court on Defendant-Movant Robert L. Hammons’ Motion
to Correct Sentence Pursuant to 28 U.S.C. § 2255 [Doc. 6], 2 filed on June 23, 2016.
Plaintiff/Respondent (hereinafter “the Government”) filed a response on November 29, 2016.
[Doc. 20], and Defendant/Movant (hereinafter “Defendant”) filed a reply on January 27, 2017
[Doc. 23]. United States District Judge James O. Browning referred the claims raised in this case
to the undersigned for proposed findings and a recommended disposition, and a hearing, if
necessary. [Doc. 9]. Having considered the motion, response, relevant law, and the record in

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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.
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Hereinafter, all documents from Case No. CIV-16-0499 cited in this decision will be designated as “Doc.”
followed by their docket number, and all documents from Case No. CR-07-1164 cited in this decision will be
designated as “Cr.Doc.”

this case and in Defendant’s underlying criminal case contained in Case No. CR-07-1164, the
undersigned recommends, for the reasons set forth below, that Defendant’s § 2255 motion
[Doc. 6] and be DENIED and that this case be DISMISSED with prejudice.
Factual and Procedural Background
On October 30, 2008, pursuant to a Plea Agreement [Cr.Doc. 33], Defendant pled guilty to
Count 1 of an Indictment [Cr.Doc. 2], which charged him with being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

On

February 2, 2012, Defendant was sentenced to a term of 180 months imprisonment, and 3 years of
supervised release. [Cr.Doc. 109 at 2-3].
In his § 2255 motion, Defendant contends that his convictions for false imprisonment and
aggravated assault on a household member are no longer violent felonies under either the Armed
Career Criminal Act (“ACCA”) or the Sentencing Guidelines following the holding of Johnson v.
United States, 135 S. Ct. 2551 (2015) (“Johnson 2015”). See [Doc. 6 at 4]. Defendant contends
that, without the enhancements imposed pursuant to the ACCA and the Sentencing Guidelines,
Defendant is subject to a sentence of no more than ten years. See id. at 24. Therefore, Defendant
asks the Court to vacate his sentence and resentence him. See id.
In response, the Government concedes that Defendant’s false imprisonment convictions
are no longer valid predicate offenses under the ACCA. See [Doc. 20 at 2]. However, the
Government contends that Defendant is still an armed career criminal because he has three
remaining valid ACCA-predicate convictions -- two prior convictions for Oregon robbery in the
first degree, and one prior conviction for New Mexico aggravated assault against a household
member with a deadly weapon. See id.

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In reply, Defendant contends that a conviction under Oregon’s statute for third degree
robbery does not constitute a crime of violence under the ACCA’s force clause because it does not
meet the definition of “violent force” required by Johnson v. United States, 559 U.S. 133, 140
(2010) (“Johnson 2010”). See [Doc. 23 at 3]. Defendant notes that his prior convictions were
under Oregon’s first degree robbery statute, which requires that a person commit robbery in the
third degree and is either armed with a deadly weapon, uses or attempts to use a dangerous
weapon, or causes or attempts to cause serious physical injury to any person. See id. at 2-3.
Defendant states that it “is not conclusive” as to whether Oregon’s first degree robbery statute sets
forth separate elements of commission of the offense, or whether it sets forth alternative means of
committing the offense. Id. at 3. Therefore, Defendant asks the Court to “give consideration as
to whether or not [Oregon’s first degree robbery statute] is setting forth the elements of the offense
of robbery in the first degree or describing the alternative means by which the offense can be
committed.” Id.
In addition, Defendant contends that his conviction for New Mexico aggravated assault
against a household member is not a violent felony for purposes of the ACCA. See id. at 4-9.
Defendant acknowledges that the Tenth Circuit in United States v. Maldonado-Palma,
839 F.3d 1244 (10th Cir. 2016) held that New Mexico aggravated assault is a crime of violence
under the Sentencing Guidelines, U.S.S.G. § 2L1.2(b)(1)(A)(ii), and Defendant states that he
recognizes that “the Court may consider itself at least guided, if not bound, by the circuit court’s
ruling.” Id. at 9. Nevertheless, Defendant maintains that New Mexico aggravated assault does
not require sufficient physical force to constitute a violent felony because a person “can violate a
New Mexico aggravated assault statute, including against a household member, without either
intending to injure the victim or, at least, intending to cause the victim to fear injury.” Id. at 7
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(citation omitted). Defendant also contends that “the statute under which [Defendant] was
convicted differs from the statue under which Mr. Maldonado-Palma was convicted, specifically
requiring that the aggravated assault be against a ‘household member.’” Id. at 9.
Discussion
The United States Supreme Court recently ruled in Beckles v. United States,
137 S.Ct. 886, 897 (2017) that the Sentencing Guidelines are not subject to a void-for-vagueness
challenge. In addition, the parties filed a joint statement in which they state that the ruling in
Beckles “does not affect the issues raised in Defendant’s pending § 2255 motion since Defendant
was sentenced as an armed career criminal under [the ACCA].” [Doc. 25]. Therefore, the Court
will only consider Defendant’s claims regarding the ACCA, and will not address Defendant’s
claims that he was improperly sentenced under the Sentencing Guidelines.
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 . . . .

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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 2015 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. Johnson 2015, 135 S.Ct. at 2557.
Now that the residual clause has been found to be unconstitutional, the Court must
determine whether Defendant has three prior convictions that satisfy the definition of “violent
felony” under the remaining clauses of the ACCA. The Government concedes that Defendant’s
false imprisonment convictions are no longer valid predicate offenses under the ACCA (see
Doc. 20 at 2), and the Court finds no reason to find otherwise. Therefore, the Court must
determine whether Defendant’s convictions for Oregon first degree robbery and New Mexico
aggravated assault against a household member are violent felonies under the ACCA. See
[Doc. 27-1 at 7-12] (Presentence Report setting forth Defendant’s prior convictions). Since these
convictions are not for 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 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
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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 Oregon first degree robbery and for New Mexico aggravated assault against a
household member constitute violent felonies under the force clause of the ACCA, the Court must
determine whether the 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. Oregon First Degree Robbery
At the outset, the Court notes that Defendant did not raise in his § 2255 motion the issue of
whether or not his Oregon first degree robbery convictions are violent felonies under the ACCA.
Nevertheless, since the Government addressed this issue in its response, and Defendant addressed
it in his reply, the Court will consider the issue herein.
Oregon’s first degree robbery statute states:
(1) A person commits the crime of robbery in the first degree if the
person violates ORS 164.395 [robbery in the third degree] and the
person:
(a) Is armed with a deadly weapon;
(b) Uses or attempts to use a dangerous weapon; or
(c) Causes or attempts to cause serious physical injury to any
person.
(2) Robbery in the first degree is a Class A felony.
O.R.S. § 164.415. Oregon’s third degree robbery statute states:
(1) A person commits the crime of robbery in the third degree if in
the course of committing or attempting to commit theft or
unauthorized use of a vehicle as defined in ORS 164.135 the person
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uses or threatens the immediate use of physical force upon another
person with the intent of:
(a) Preventing or overcoming resistance to the taking of the
property or to retention thereof immediately after the taking; or
(b) Compelling the owner of such property or another person to
deliver the property or to engage in other conduct which might
aid in the commission of the theft or unauthorized use of a
vehicle.
(2) Robbery in the third degree is a Class C felony.
O.R.S. § 164.395.
In order to be convicted under Oregon’s first degree robbery statute, Defendant had to
violate Oregon’s third degree robbery statute, while either armed with a deadly weapon, using or
attempting to use a dangerous weapon, or causing or attempting to cause serious physical injury to
any person. See O.R.S. § 164.415. Defendant contends that Oregon’s third degree robbery
statute does not require sufficient physical force to constitute a violent felony because the Oregon
Court of Appeals held that a conviction for Oregon third degree robbery requires only minimal
force. See [Doc. 23 at 3] (relying on State of Oregon v. Herbert Johnson, 168 P.3d 312, 313
(Or. Ct. App. 2007) (upholding a third-degree robbery conviction where the victim “did not feel a
tug or ‘much of anything’” when her purse was snatched)). However, Defendant fails to note that
in State of Oregon v. Hamilton, the Oregon Supreme Court explained that Oregon’s state
legislature, in enacting the robbery statutes, “adopt[ed] the view that repression of violence is the
principal reason for being guilty of robbery.” 233 P.3d 432, 436 (Or. 2010) (citation and internal
quotation marks omitted). The Oregon Supreme Court further stated that “[i]t is the additional
factor of actual or threatened violence that transforms the conduct from theft, which requires only
the intent to deprive, into a substantively different crime, robbery.” Id.

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The Tenth Circuit was recently confronted with a similar situation where Colorado’s Court
of Appeals had found that a person could be convicted of Colorado robbery by the use of minimal
force, but this decision conflicted with a subsequent Colorado Supreme Court decision that 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.” See United States v. Harris, 844 F.3d 1260, 1269
(10th Cir. 2017) (citations, internal quotation marks, and brackets omitted). The Tenth Circuit in
Harris found that Colorado’s robbery statute matches the level of force required by Johnson 2010
based on the Colorado Supreme Court’s holding, and regardless of contrary Court of Appeals
decisions. See Harris, 844 F.3d at 1269 (stating that “the starting point” to answer whether or not
the state statute meets the level of force required by Johnson 2010 “is the Colorado Supreme
Court’s express word”). Accordingly, the Court finds that Oregon’s third degree robbery statute
satisfies Johnson 2010’s definition of physical force based on the same reasoning and, therefore,
Oregon’s first degree robbery statute also satisfies this definition because it is comprised of third
degree robbery while also either being armed with a deadly weapon, using or attempting to use a
dangerous weapon, or causing or attempting to cause serious physical injury to any person. See
O.R.S. § 164.415. Because the Court finds that Oregon’s third degree robbery statute is a violent
felony for purposes of the ACCA, the Court need not reach the issue of whether or not Oregon’s
first degree robbery statute is divisible under Mathis, i.e., whether it sets forth separate elements or
alternative means of the commission of the offense. See [Doc. 23 at 4]. For these reasons, the
Court recommends that Defendant’s claim that his convictions for Oregon first degree robbery
may not be used as ACCA-predicate offenses be denied.

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B. New Mexico Aggravated Assault Against a Household Member
Under New Mexico law, aggravated assault against a household member is a fourth-degree
felony and is defined as: (1) unlawfully assaulting or striking at a household member with a deadly
weapon; or (2) willfully and intentionally assaulting a household member with intent to commit
any felony. N.M.S.A. 1978 § 30-3-13(A). Here, Defendant was convicted of Aggravated
Assault Against a Household Member (Deadly Weapon). See [Doc. 20-1 at 1] (Judgment,
Sentence and Order Suspending Sentence in Defendant’s state case). Defendant contends that
New Mexico aggravated assault against a household member with a deadly weapon does not
require sufficient physical force to constitute a violent felony because a person “can violate a New
Mexico aggravated assault statute, including against a household member, without either
intending to injure the victim or, at least, intending to cause the victim to fear injury.” [Doc. 23
at 7] (citation omitted).
The Court finds that this contention is foreclosed by the Tenth Circuit’s holding in United
States v. Ramon Silva, in which the Tenth Circuit found that New Mexico’s aggravated assault
statute constitutes a “crime of violence” under the Johnson 2010 standard. 608 F.3d 663, 669-71
(10th Cir. 2010). The Tenth Circuit explained that aggravated assault in New Mexico is defined
as “unlawfully assaulting or striking at another with a deadly weapon,” and assault is defined “as
an attempted battery, certain use of insulting language, or any unlawful act, threat or menacing
conduct which causes another person to reasonably believe that he is in danger of receiving an
immediate battery.” Id. at 669 (citations and internal quotation marks omitted). The Tenth
Circuit found that “apprehension causing” aggravated assault constitutes a crime of violence
pursuant to Johnson 2010, and explained that “[t]hreatening or engaging in menacing conduct
toward a victim, with a weapon capable of causing death or great bodily harm, threatens the use of
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‘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
“‘apprehension causing’ aggravated assault threatens the use of ‘violent force’ because the
proscribed conduct always has the potential to lead to ‘violent force.’” Id. at 670-71. The Tenth
Circuit rejected the defendant’s contention that New Mexico aggravated assault is not a violent
felony under the ACCA because it does not require proof of intent to cause injury or fear of injury,
and noted that this argument “ignores Silva’s plea of no contest to aggravated assault, which was
an admission of intentional conduct.” Id. at 673. Similarly, here, Defendant pled no contest to
his charge of aggravated assault. See [Doc. 20-1 at 1]. In addition, the Tenth Circuit recently
held in Maldonado-Palma that New Mexico’s aggravated assault with a deadly weapon statute
(N.M.S.A. 1978 § 30-3-2(A)) is categorically a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) (2015). 839 F.3d at 1248-50. The Tenth Circuit held that New Mexico’s
aggravated assault with a deadly weapon statute satisfies the elements, or force, clause of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), and explained that New Mexico’s uniform jury instructions make clear that
this statute requires the offender to use the deadly weapon. See id. at 1249-50. While Defendant
contends that the statute under which he was convicted is different from the statute considered in
Maldonado-Palma because Defendant was convicted of aggravated assault specifically against a
household member (see Doc. 23 at 9), Defendant provides no support for this contention, and the
Court finds no reason to distinguish the two statutes on that basis. Therefore, pursuant to the
holdings of Ramon-Silva and Maldonado-Palma, the Court finds that New Mexico’s aggravated
assault against a household member statute constitutes a violent felony for purposes of the ACCA,
and recommends that Defendant’s claim be denied.

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Conclusion
IT IS THEREFORE RECOMMENDED, for the reasons stated above, that
Defendant-Movant Robert L. Hammons’ Motion to Correct Sentence Pursuant to 28 U.S.C.
§ 2255 [Doc. 6] be DENIED and that this case be DISMISSED with prejudice.

______________________________________
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE

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