Hammons v. Tracy et al

Filing 33

AMENDED REPORT AND RECOMMENDATIONS re 6 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Robert Lester Hammons by Magistrate Judge Kevin R. Sweazea. Objections to R&R due by 7/7/2017. 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).) (cbf)

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

UNITED STATES OF AMERICA,
Plaintiff/Respondent,

No.

16-cv-00499-JB-KRS
07-cr-1164-JB

v.
ROBERT L. HAMMONS,
Defendant/Movant.

AMENDED PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION
Robert L. Hammons, presently incarcerated at FCI Springfield, seeks review of his
sentence under 28 U.SC. § 2255 in light of the Supreme Court’s decision in Johnson v. United
States, 576 U.S. ___, 135 S. Ct 2551 (2015). In his motion to vacate [Doc. 114], Hammons
contends that three previous convictions—two for first-degree robbery in Oregon, see Or. Rev.
Stat. § 164.415, and one for aggravated assault against a household member, see N.M. Stat. Ann.
30-3-13—no longer qualify as violent felonies under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (“ACCA”), the basis for his 180-month sentence. The Government has filed a response
in opposition [Doc. 128], and Hammons a reply [Doc. 131]. Hammons also submitted objections
[Doc. 137] to earlier recommendations from this Court’s predecessor [Doc. 136]. Acting under
its inherent authority to reconsider previous rulings and an order of reference from United States
District Court Judge James O. Browning, see 28 U.S.C. § 636(b), the Court has considered the
parties’ submissions and now recommends Hammons’ motion be granted and he be resentenced.

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I.

BACKGROUND

A. Facts Underlying Conviction
On June 13, 2007, a federal grand jury returned a two-count indictment charging
Hammons with possessing a firearm as a felon, contrary to 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
(Count I) and possessing a stolen firearm in violation of Sections 922(j) and 924(a)(2) (Count II).
[Doc. 2]. The charging document listed three prior felonies as the basis for Count I, including
first-degree robbery in Oregon, and false imprisonment and aggravated assault against a
household member in New Mexico. [Doc. 2, pp. 1-2]. On October 30, 2008, Hammons pleaded
guilty to Count I of the indictment and executed a formal plea agreement. [Doc. 33]. United
States Magistrate Judge Robert Hayes Scott accepted the plea, and the matter was set for
sentencing. [Doc. 34].
The factual basis for Hammons’ commission of the offense is set forth in the plea
agreement.

[Doc. 33, ¶9]. Hammons admitted that in February of 2007, he “knowingly

possessed a Smith & Wesson .22 caliber pistol . . . and approximately seven (7) rounds of
Federal brand .22 Long Rifle (LR) caliber cartridge ammunition.” [Doc. 33, ¶9(b)]. In exchange
for pleading guilty, the Government promised not to charge additional crimes arising from the
same conduct and to move to dismiss Count II of the indictment. [Doc. 33, ¶12(a)-(b)]. The
Government did not recommend any specific sentence and advised Hammons that he “may be an
armed career criminal which carries a minimum sentence of fifteen (15) years imprisonment.”
[Doc. 33, ¶ 4(a); 6(a)].
On April 21, 2009, the Government filed a “Notice of Intention to Seek Enhanced
Sentence Pursuant to the Armed Career Criminal Provisions of 18 U.S.C. § 924(e) and U.S.S.G
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§4B1.4.” [Doc. 38]. As the basis, the Government identified five previous felonies for which
Hammons had been convicted: (1) a September 30, 2000 conviction in New Mexico’s Second
Judicial District for false imprisonment; (2) an October 1, 2000 conviction for the same offense
in the same court; (3) an August 13, 2000 conviction for aggravated assault against a household
member with a deadly weapon in the Second Judicial District; (4) a December 18, 1981
conviction for robbery in the Umatilla County, Oregon Circuit Court; and (5) an October 30,
1978 conviction for the same offense in the Linn County, Oregon Circuit Court. [Doc. 38, pp. 12]. The United States Probation Office prepared a Presentence Report (“PSR”) in advance of
sentencing.
After sentencing was continued on several occasions, Hammons moved to withdraw his
guilty plea. [Doc. 50].

He also sought appointment of a new attorney. [Doc. 75] The

Government contested the motion, accusing Hammons of “gaming the system.” [Doc. 53]. The
Government asserted that Hammons lacked a sufficient reason to back out of the agreement and
could not prove his innocence as a justification for doing so. [Doc. 53, pp. 3-5]. After a hearing,
Judge Browning issued an opinion granting Hammons’ request for a new attorney, but denying
without prejudice his motion to withdraw his guilty plea so that Hammons could discuss it with
his new attorney. [Doc. 80]. Hammons later abandoned the motion to withdraw his plea.
Hammons also lodged objections to the Government’s pursuit of the ACCA
enhancement. [Doc. 47]. Among other things, Hammons disagreed that his two convictions for
false imprisonment qualified as violent felonies that would subject him to a 180-month minimum
sentence. [Doc. 47, pp. 2-5]. The Government responded to the objection. [Doc. 57]. The
Government maintained that even if those offenses did not satisfy the ACCA’s “force” clause,
they undoubtedly met the ACCA’s “residual clause.”[Doc. 57, pp. 1-3]. In a supplemental paper,
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Hammons asked the Court to apply the Supreme Court’s then recent decision, Johnson v. United
States, 559 U.S. 133 (2010) (“Johnson 2010”), to disqualify his convictions for false
imprisonment and aggravated assault against a household member as ACCA predicates. [Doc.
70]. Under Johnson 2010, Hammons asserted, these offenses, categorically, did not include the
type of violent force necessary to warrant a sentencing enhancement. [Doc. 70, pp. 1-2]. The
Government disagreed, insisting that aggravated assault with a deadly weapon easily satisfied
Johnson 2010 and false imprisonment fell squarely within the ACCA’s residual clause. [Doc.
71, 1-5].
Judge Browning ultimately agreed with the Government. [Doc. 73]. In a memorandum
opinion and order, he first noted that “Hammons does not dispute that two of his previous
convictions – for the Oregon offenses of . . . robbery in the first degree [] and kidnapping in the
third degree – qualify as predicate offenses for the purposes of the ACCA enhancement.” [Doc,
73, p. 31]. In terms of the other convictions, Judge Browning concluded that “New Mexico’s
crime of aggravated assault against a household member with a deadly weapon is a violent
felony under the force clause” and “New Mexico’s crime of false imprisonment is a violent
felony under the residual clause of the ACCA.” [Doc. 73, p. 31]. Consequently, Hammons had
three qualifying felonies under the ACCA, and Judge Browning overruled Hammons objections
to the use of his past convictions for the 180-month enhancement. [Doc. 73, pp. 31-46].
Following this decision, Hammons filed sentencing memoranda in which he presented
mitigating arguments in favor of a lesser sentence and questioned the Probation Office’s
computations and sentencing recommendations in the PSR. [Doc. 90, pp. 1-14; Doc. 98, pp. 114]. Hammons also submitted a “second supplemental objection” to the proposed ACCA
enhancement seeking “to preserve a constitutional challenge to [the residual] clause of [the]
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ACCA” [Doc. 91, p. 2]. Under what he called the Supreme Court’s significant limitation on a
reach of the residual clause, see Begay v. United States, 553 U.S. 137 (2008), Hammons argued
that his convictions for false imprisonment are not “roughly similar” to the enumerated crimes
listed in the ACCA; nor did they entail they type of “purposeful, violent, and aggressive
conduct” the ACCA requires. [Doc. 91, p. 5-7 (citations omitted)]. As if to foreshadow 2015’s
change of law, Hammons also asserted that the ACCA’s residual clause was unconstitutionally
vague. [Doc. 91, pp. 7-13].
The Government dismissed Hammons’ contentions. It argued both that the guidelines’
calculation in the PSR was correct and that the ACCA’s residual clause was constitutional. [Docs
92 & 93]. The Government urged Judge Browning to adhere to his initial determination that
Hammons’ convictions constitute violent felonies and side with the then majority of the Supreme
Court that had rejected the same vagueness challenge Hammons raised. [Docs. 92 & 93]. In a
written order, Judge Browning agreed that the residual clause withstood constitutional scrutiny
and found no basis to reconsider his prior decision. [Doc. 98, pp. 5, 21]. On February 12, 2012,
Judge Browning sentenced Hammons to 180 months’ incarceration, three years supervised
released, and participation in a mental health and substance abuse program, among other terms.
[Doc. 101]. Although the Court was unwilling to declare the residual clause unconstitutional, the
Court nonetheless granted the Government’s motion to dismiss the second count of the
indictment and Hammons’ request to be placed at FCI Springfield in Illinois in light of his
significant health problems. [Docs. 101; 104].
B. Procedural Facts
On June 24, 2016, Hammons filed the instant motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255. [Doc. 114]. Judge Browning appointed Hammons
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counsel and subsequently referred the matter to this Court’s predecessor, United States
Magistrate Judge Lourdes Martinez, to recommend a disposition. [Doc. 112; 117]. Hammons
asserted that his previous convictions for false imprisonment under New Mexico law are not
valid predicates under the ACCA, especially after Johnson 2015’s abolishment of the “residual
clause.” He also urged the Court to disqualify his conviction for aggravated assault against a
household member as irreconcilable with Johnson 2010’s violent-force mandate. [Doc. 114, pp.
8-15].
The Government submitted a response in opposition on November 28, 2016. [Doc. 128].
Although the Government agreed that false imprisonment could no longer support an ACCA
enhancement after Johnson 2015, it maintained that aggravated assault against a household
member remained a violent felony under the ACCA’s force clause, especially in light of United
States v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016)’s holding that aggravated assault in
New Mexico is a “crime of violence” under the federal sentencing guidelines. [Doc. 128, pp. 45]. The Government also asserted that Hammons’ Oregon convictions for first-degree robbery
qualify as violent felonies, and notwithstanding Johnson 2015, Hammons remained “an armed
career criminal.” [Doc. 128, pp. 2-3].
In a separate filing, the Probation Office insisted Johnson 2015 does not change
Hammons’ sentence because regardless of the constitutionality of the residual clause, Hammons’
convictions for robbery and assault against a household member constitute the three violent
felonies the ACCA requires. [CV Doc. 14]. On January 27, 2017, Hammons’ submitted a reply
in support of his motion. [Doc. 131]. Aside from reiterating his previous arguments, Hammons
asserted that his robbery convictions from Oregon do not pass Johnson 2010’s violent-force test
and therefore may not support an enhanced sentence. [Doc. 131, pp. 1-10].
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On April 25, 2017, Judge Martinez filed a report recommending that Hammons’ motion
be denied and his sentence be affirmed. [Doc. 136, p. 2]. Notwithstanding Johnson 2015 and
the parties’ agreement that false imprisonment under New Mexico law no longer is a violent
felony, Judge Martinez determined Hammons’ remaining three convictions met the ACCA’s
“force clause,” and properly were used to impose a 15-year term of incarceration. [Doc. 126, pp.
6-11]. First-degree robbery under Oregon law, Judge Martinez explained, requires violent
force—“the additional factor of actual or threatened violence . . . transforms the conduct from
theft, which requires only the intent to deprive, into a substantially different crime, robbery.”
[Doc. 136, p. 7 (citation omitted)]. Judge Martinez also concluded that the Tenth Circuit’s
holding in United States v. Silva, 608 F.3d 663 (10th Cir. 2010) that aggravated assault in New
Mexico is a “crime of violence” disposed of Hammons’ contentions as to aggravated assault
against a household member. [Doc. 136 p. 9]. Hammons timely objected to the PFRD. [Doc.
137]. The Government did not respond.
II. APPLICABLE LAW
The ACCA addresses the “special danger” that career offenders carrying guns present,
Begay, 553 U.S. at 146, by imposing a minimum 15-year sentence for felons in possession of
firearms with three previous convictions for violent felonies or serious drug offenses. 18 U.S.C.
§ 924(e)(2)(B).

A “violent felony” is “any crime punishable by imprisonment for a term

exceeding one year” that “has as an element the use, attempted use, or threatened use of physical
force against [another] person,” “is burglary, arson, or extortion, involves the use of explosives,
or otherwise involves conduct that presents a serious risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B). The Court enhanced Hammons’ sentence under the ACCA because he
was twice convicted of false imprisonment under New Mexico law, see N.M. Stat. Ann. § 30-4United States v. Hammons
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3; twice for first-degree robbery contrary to Oregon law, see Or. Rev. Stat. § 164.415; and once
for aggravated assault against a household member in violation of New Mexico law, see N.M.
Stat. Ann § 30-3-13.
Four years after Hammons’ sentencing, the Supreme Court held the ACCA’s “residual
clause”—the one that requires a 15-year minimum sentence for crimes “otherwise involving
conduct that presents a serious risk of physical injury”—unconstitutionally vague, but, as
relevant here, left intact the “force clause” for offenses having “as an element the use, attempted
use, or threatened use of physical force against the person of another.” Johnson 2015, 135 S. Ct.
at 2256 (citation omitted). Johnson 2015’s holding is retroactive, see Welch v. United States, __
U.S. __, __, 136 S. Ct. 1257, 1268 (2016), and Hammons asserts that none of the previous
convictions upon which the Court based his enhanced sentence survive Johnson 2015’s mandate.
He is partially correct, and the Court recommends he be resentenced.
III. ANALYSIS
As an initial matter, the parties agree that Johnson 2015 does not apply to Hammons’
challenge under the “residual clause” of the sentencing guidelines. The Court agrees that Beckles
v. United States, __ U.S. __, __, 137 S. Ct. 886, 894 (2017) forecloses this argument because
unlike the ACCA, “the Guidelines are not subject to a vagueness challenge under the Due
Process Clause” and by extension “[t]he residual clause in §4B1.2(a)(2) . . . is not void for
vagueness.” The Court will therefore consider only Hammons’ statutory attack.
Additionally, the Government concedes that Hammons’ convictions for false
imprisonment under New Mexico law no longer may be used to enhance his sentence under the
ACCA.

The Government is correct.

Judge Browning determined that false imprisonment

constituted a qualifying predicate pursuant to the ACCA’s now unconstitutional residual clause.
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See United States v. Hammons, 2010 U.S. Dist. LEXIS 113022, *78-79 (D.N.M. Oct. 6, 2010).
Thus, the Court must disregard these two crimes and determine whether Hammons’ conviction
for aggravated assault against a household member in New Mexico and two separate convictions
for first-degree robbery in Oregon constitute three violent felonies under the ACCA’s force
clause.
A. Application of the Force Clause.
Whether a prior conviction meets the ACCA’s definition of a violent felony turns on
application of the so-called “categorical approach,” whereby the Court examines the elements of
the predicate offense without regard to the underlying facts and determines whether it “has as an
element the use, attempted use, or threatened use of physical force against the person of
another.” Harris, 844 F.3d at 1264 (citing 18 U.S.C. § 924(e)(2)(B)(i)); Descamps v. United
States, __ U.S. __, __, 133 S. Ct. 2276, 2283 (2013)). Federal law supplies the analysis for the
ACCA’s force clause; state law defines the substantive elements of the crime. See Johnson 2010,
559 U.S. at 138.
In Johnson 2010, the Supreme Court examined Florida’s simple battery statute and
concluded that battery did not require the type of violent and physical force necessary to
constitute an ACCA qualifying conviction. See id. at 140. The Court reasoned that “the phrase
‘physical force’ means violent force—that is, force capable of causing physical pain or injury to
another person.” Id. (citation omitted). Battery under Florida law, however, encompassed “any
physical contact no matter how slight” including “[t]he most nominal contact, such as a tap on
the shoulder without consent[.]” Id. at 138 (internal citations and alterations omitted). As a
result, the Court held that simple battery, as well as crimes that paralleled common law battery’s
requirement of mere offensive touching, do not satisfy the ACCA’s force clause. See id.
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To determine whether Hammons’ convictions for aggravated assault against a household
member under New Mexico law and first-degree robbery under Oregon law satisfy Johnson
2010, the Court must examine the elements of these offenses and consider whether they involve
“violent force. . . capable of causing physical pain or injury.” Id. Hammons’ conviction for
aggravated assault against a household member meets the definition of “violent felony.”
Hammons’ convictions for first-degree robbery do not. Because only one of the five violent
felonies relied upon by the Government and the Court in order to enhance Hammons under the
ACCA survives scrutiny pursuant to Johnson 2010, the Court concludes Hammond’s should be
resentenced.
1. Aggravated assault against a household member.
The Court concludes that aggravated assault against a household member under Section
30-3-13 of the New Mexico Statutes is a violent felony as defined by the ACCA. As Hammons
acknowledges, the case law does not support his contrary argument. See United States v. Silva,
608 F.3d 663, 670-671 (10th Cir. 2010). In Silva, the Tenth Circuit determined that a closely
related offense, aggravated assault, see N.M. Stat. Ann. § 30-3-2, satisfied Johnson 2010. As the
court explained, aggravated assault “threatens the use of ‘violent force’ because by committing
such an act [threatening or engaging in menacing conduct], the aggressor communicates to his
victim that he will potentially use violent force against the victim in the near future.” Id.
Moreover, aggravated assault that places the victim in immediate apprehension of a battery
“threatens the use of ‘violent force’ because the proscribed conduct always has the potential to
lead to ‘violent force.’” Id.
For ACCA purposes, there is no meaningful distinction between aggravated assault and
aggravated assault against a household member under New Mexico law. Compare N.M. Stat.
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Ann. § 30-3-2 (“Aggravated assault consists of either: A. unlawfully assaulting or striking at
another with a deadly weapon; B. committing assault by threatening or menacing another while
wearing a mask, hood, robe or other covering upon the face, head or body, or while disguised in
any manner, so as to conceal identity; or C. willfully and intentionally assaulting another with
intent to commit any felony”) with N.M. Stat. Ann. 30-3-13 (“Aggravated assault against a
household member consists of: (1) unlawfully assaulting or striking at a household member with
a deadly weapon; (2) willfully and intentionally assaulting a household member with intent to
commit any felony.”). The difference between the two statutes—aggravated assault having
“another [person]” as the victim and aggravated assault against a household member having a
“household member” as the victim—does not alter the force element necessary to sustain a
conviction for either crime.
The Tenth Circuit reached the same conclusion when assessing assault with a deadly
weapon against the term “crime of violence” as used under the career-offender provisions of the
guidelines. See Maldonado-Palma, 839 F.3d at 1250 (explain that “the perpetrator of an
aggravated assault with a deadly weapon must employ the deadly weapon in committing the
assault” and therefore aggravated assault under N.M. Stat. Ann. § 30-3-2(A) is categorically a
crime of violence”).

As Silva explains, cases interpreting “crime of violence” under the

guidelines may be used “in determining whether a conviction qualifies as a violent felony” under
the ACCA. 608 F.3d at 671. Consistent with Silva and Maldonado-Palma, the Court determines
that the crime of aggravated assault against a household member includes the use or threatened
use of violent force and was properly used to enhance Hammons’ sentence under the ACCA.

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2. Robbery under Oregon law.
First-degree robbery under Oregon law consists of committing the third degree of that
offense together with: (1) being “armed with a deadly weapon”; (2) using or attempting “to use a
dangerous weapon”; or (3) causing or attempting “to cause serious injury to any person.” Or.
Rev. Stat. § 164.415(1)(a)-(c). A criminal defendant commits third-degree robbery where “in the
course of committing or attempting to commit theft or unauthorized use of a vehicle . . . the
[defendant] uses or threatens the immediate use of physical force” against someone else “with
the intent of: (a) [p]reventing or overcoming resistance to the taking of the property or to
retention thereof immediately after the taking; or (b) [c]ompelling 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.” Or. Rev. Stat. § 164.395.
The Court’s analysis therefore unfolds in two steps. First, employing the categorical
approach, the Court must decide whether third-degree robbery satisfies Johnson 2010’s violentforce requirement. Second, the Court must determine what difference, if any, the addition of the
aggravating factors constituting first-degree robbery makes to the outcome.
a. Third-Degree robbery under Oregon law.
Hammons contends that third-degree robbery under Oregon law, categorically, does not
entail the type violent, physical force sufficient to meet Johnson 2010. The Court agrees.
At least one court has reached that result. See United States v. Dunlap, 162 F. Supp. 3d
1106, 1113-1115 (D. Or. 2016). In Dunlap, the defendant asserted his conviction for thirddegree robbery under Oregon law did not qualify as an ACCA predicate. The district court
agreed. In reaching that conclusion, the district court first reasoned that “courts must presume
that a defendant’s conviction rests on the least of the acts criminalized, although that analysis is
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not an invitation to apply legal imagination to the state offense.” Id. at 1113 (citing Moncrieffe v.
Holder,__U.S.__, 133 S.Ct. 1678, 1684-85 (2013) (internal quotation omitted)). Next, the court
explained Oregon’s Supreme Court distinguished third-degree robbery from simple theft as
including “the additional factor of actual or threatened violence” Id. (citing State v. Hamilton,
233 P.3d 432 (2010)).
Despite this distinguishing feature, the court noted that “the simple fact that ORS
164.395(1) includes the use or threatened use of physical force as an element does not
automatically elevate a conviction for Robbery III to the level of a violent felony under the
ACCA.” Instead, the court must examine Oregon’s case law to determine whether only slight
force is necessary to sustain a conviction for third-degree robbery. Because the Oregon courts
have determined a “tug” is sufficient for conviction, see, e.g., State v. Johnson, 168 P.3d 312
(Or. Ct. App. 2007), the district court held “ORS 164.395(1) requires only minimal force” and is
therefore “overbroad for the purposes of the ACCA.” Id. The Ninth Circuit subsequently cited
this holding with approval in concluding that armed robbery under Massachusetts law does not
satisfy Johnson 2010. See United States v. Parnell, 818 F.3d 974, 981 (9th Cir. 2016).
As Judge Martinez pointed out in her PFRD, “the starting point” is the state supreme
court’s “express words.” Harris, 844 F.3d at 1268-1270. In Harris, the Tenth Circuit dissected
Colorado’s robbery statute and concluded it satisfied Johnson 2010. In so doing, the court of
appeals considered whether “the constructive-force means in Colorado’s robbery statute—i.e., by
threats or intimidation—require the use or threatened use of physical force.” Id. The court
answered the question in the affirmative by looking to the Colorado Supreme Court’s holding
that “force or fear of force is the main element of the offense of robbery” and that “the offense of
robbery, whether committed by actual force, or constructive force, i.e., threats or intimidation, is
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a crime involving the use of force of violence.” Id. (citing People v. Jenkins, 198 Colo. 347, 599
P.2d 912, 913 (Colo. 1979)).
Harris has some analytic appeal in this case. As Judge Martinez noted, the Oregon
Supreme Court has made similar statements. For example, in State v. Hamilton, 233 P.3d 432,
436 (Or. 2010) the court explained that the Oregon legislature “adopt[ed] the view that
repression of violence is the principal reason for being guilty or robbery.” The state court also
noted that “[i]t is the additional factor of actual or threatened violence that transforms the
conduct from theft, which require only the intent to deprive, into a substantively different crime,
robbery.” Id. Thus, much like the Colorado Supreme Court in Harris, the Oregon Supreme Court
has focused on language that closely resembles Johnson 2010’s definition of physical force for
ACCA purposes. For this reason, Judge Martinez concluded third-degree robbery includes the
type of violent force necessary to qualify as an ACCA predicate.
The Court respectfully disagrees. Harris does not instruct the Court to discount a decision
from the state intermediate appellate court that defines the force necessary to sustain a conviction
as essentially minimal. See State v. Johnson, 168 P.3d at 314-15 (a tug was sufficient so long as
it overcame the resistance of the victim). While Harris does suggest that an inconsistent decision
from a lower court of appeals that predates a later on-point supreme court decision may properly
be disregarded, the same inconsistency does not exist here. In fact, Hamilton turned on the
definition of “victim” under the robbery statute, not the degree of force necessary to sustain a
conviction. 233 P.3d at 436. The Oregon Supreme Court therefore did not overrule State v.
Johnson expressly or by implication.
The Court concludes that Dunlap more faithfully tracks Oregon’s decisional law—that
third-degree robbery does not meet Johnson 2010’s violent-force requirement because only slight
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force is necessary to sustain a conviction. Although the Oregon Supreme Court’s dicta in
Hamilton is similar to language from the Colorado Supreme Court that the Tenth Circuit found
persuasive in Harris, it does not compel the same result.
b. First-degree robbery under Oregon law.
The conclusion that third-degree robbery does not meet the ACCA’s force clause does
not end the analysis. The Court must decide whether the remainder of the first-degree robbery
statute under Oregon Revised Code Section 164.415 changes the outcome. The Court determines
that the remaining elements do not make a material difference.
In Harris, the Tenth Circuit explained the “gravamen of the offense of robbery is the
violent nature of the taking” as settled by the Colorado Supreme Court. 844 F.3d at 1267.
Consequently, “robbery by ‘force’ in Colorado categorically matches the definition of ‘physical
force’ assigned by the Supreme Court in Johnson[2010] (namely, ‘violent force—that is, force
capable of causing physical pain or injury to another person’).” Id. at 1268 (citation omitted).
The Tenth Circuit further held a subset of the offense—robbery by threats or intimidation—was
sufficiently violent because it did not encompass “extortionist threats” against property and
instead appeared to implicate bodily harm, “a violent taking” synonymous with the common law.
Id. at 1268-69.
Harris, however, drew a critical distinction between its analysis and the Ninth Circuit’s
decision in Parnell, which concluded armed robbery under Massachusetts law did not satisfy
Johnson 2010. See Harris, 844 F.3d at 1269 (citing Parnell, 818 F.3d 974). Rather than reject
the reasoning of Parnell, the Tenth Circuit explained Parnell “was careful to point out that
Massachusetts had expressly departed from common law principles.” Id. Parnell is instructive
here because its reasoning more clearly applies to the instant case.
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In Parnell, Massachusetts’ armed-robbery statute was at issue. The law defined the
offense in a similar way to Oregon as the defendant having: “(1) committed a robbery[; and] (2)
while in possession of a weapon.” Id. at 978 (citations omitted). Fatal to the Johnson 2010
analysis, however, was that, as here, the underlying crime of robbery required no degree of force
in particular so long as the force is sufficient to obtain the victim’s property against his will[.]”
Id.; c.f. State v. Johnson, 168 P.3d at 315 (explaining that “the jury was entitled to infer that
defendant intended to use force sufficient to overcome any resistance that the victim may have
offered”), More significantly, the Ninth Circuit observed that “to satisfy the second element of
armed robbery, the defendant must possess a dangerous weapon during the commission of the
offense, but “the weapon . . . need not be fired, employed to effectuate the robbery, used in a
threatening manner, or . . . openly displayed.” Parnell, 818 F.3d at 978 (citations omitted).
Applying Parnell’s reasoning to this case, if Hammons need only possess, but not use, a deadly
weapon to be convicted of first-degree robbery in Oregon, then that offense likewise fails
Johnson 2010’s mandate. The lack of cases in Oregon complicates the task somewhat.
In other contexts, federal courts attempt to predict how the highest court of a state would
rule on questions of state law. See, e.g, Southwest Forest Industries, Inc. v. Sutton, 868 F.2d
352, 354 (10th Cir. 1989) (examining the federal court’s role in diversity cases). In making the
prediction, courts look first to cases from the state supreme court, and if unavailing, the
decisional law of the intermediate courts of appeals. See Daigle v. Shell Oil Co., 972 F.2d 1527,
1543 (10th Cir. 1992) (discussing interpretation of state law in the diversity context). The Court
may also find guidance in “the policies underlying the applicable legal principles, and the
doctrinal trends indicated by these policies.” Weiss v. United States, 787 F.2d 518, 525 (10th Cir.
1986) (citation omitted). The ACCA appears to counsel a similar approach. See Mathis v. United
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States, __U.S.__,__, 136 S. Ct. 2243, 2256-225 (2016) (courts should examine state case law and
the statute itself).
The Oregon Supreme Court does not appear to have decided the issue. Two decisions
from the Oregon Court of Appeals, however, suggest a defendant need only possess, not use a
gun, to be convicted of first-degree robbery. See State v. Zimmerman, 12 P.3d 996 (Or. App.
2000); State v. Cartright, 595 P.2d 1289 (Or. App. 1979). In Zimmerman, the court considered
whether second-degree robbery is a lesser-included offense of first-degree robbery.

In the

differentiating between the two degrees, the court explained that “[f]irst degree robbery may be
committed if the individual committing the crime is armed with a deadly weapon[,]” but [t]he
person committing the crime need not actually use the deadly weapon, much less make
representations about it.” Zimmerman, 595 P.2d at 1290 (emphasis added).
Similarly, in Cartright, the Oregon Court of Appeals confronted the question of whether
second-degree assault is a lesser included offense of first-degree robbery. The court concluded
assault was not. In the process, the court explained “[e]ach of the possible means of committing
second degree assault . . . calls for the causing of physical injury to another,” but a defendant
“could conceivably commit first degree robbery under either ORS 164.415(1) (a) or (b) by
merely being armed with or using a dangerous weapon without actually causing physical injury.”
Id. Although these cases are not the ringing endorsement the Court would like, they do suggest
that mere possession of a deadly weapon is sufficient to support a conviction for first-degree
robbery under Oregon law, which Parnell holds fails Johnson 2010. Parnell, 818 F.3d at 978.
Section 164.415’s plain language is consistent with this conclusion. There are three
ways of committing first-degree robbery in Oregon. The second and third likely meet Johnson
2010 because they require either “use or attempt[ted] use [of] a dangerous weapon” or “causing
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or attempt[ed] caus[ing] [of] serious physical injury of another.” Or. Rev. Stat. § 164.415(1)(b)(c).

The first means, however, requires only that the defendant be “armed with a deadly

weapon,” not that the defendant use or even threaten to use it. It does not appear the Oregon
legislature has ascribed any special meaning to the term “armed” and the common dictionary
definition does not require use or threatened use, merely possession—being “equipped with or
carrying

a

firearm

or

firearms.”

Oxforddictionaries.com,

https://en.oxforddictionaries.com/definition/armed (site last visited June 13, 2017).

Thus,

Oregon’s first-degree robbery statute embraces conduct that does not amount to a violent felony
as defined by the ACCA.
c. Divisibility of first-degree robbery under Oregon law.
The conclusion that subsection 1(a) does not require proof of violent physical force does
not necessarily condemn the entirety of Section 164.415, Oregon’s first-degree robbery statute. If
the offense is divisible, the Court may employ the “modified categorical approach” and examine
available records to ascertain the specific subsection under which Hammons was convicted. See
Mathis, 136 S. Ct. at 2253. To the extent Section 164.415 is divisible and Hammons was
convicted under either subsection 1(b) or 1(c), both of which contain an element of violent-force,
Hammons robbery convictions satisfy the ACCA. On the other hand, if first-degree robbery is
indivisible, Hammons’ two convictions do not qualify as ACCA predicates under the categorical
approach applied above.
A criminal statute is divisible when it “sets out one or more elements of the offense in the
alternative.” United States v. Titties, 852 F.3d 1257, 1267 (10th Cir. 2017) (citing Descamps, 133
S. Ct. at 2281). A disjunctively-phrased provision, however, only qualifies as divisible if the
phrases listed in the alternative are elements, not means. Id. “A crime is not divisible simply
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because it may be accomplished through alternative means, but only when alternative elements
create distinct crimes.” Id. (citation omitted). As the Supreme Court explained “[e]lements are
the constituent parts of a crime’s legal definition—the things the prosecution must prove to
sustain a conviction.” Mathis, 136 S. Ct. at 2248 (quotations omitted). “[T]hey are what the
defendant necessarily admits when he pleads guilty.” Id. In contradistinction, means are “various
factual ways of committing some component of the offense.” Id.
Whether “the listed items are alternative [factual] means of satisfying an element” and
not “constituent parts of a crime’s legal definition” turns on state law. Titties, 852 F.3d at 1268
(citing Mathis, 136 S. Ct. at 2248). Sometimes “the statute on its face will provide the answer,”
like where “the subsections carry different punishments” and therefore “must be elements.” Id.
Other times, the statute will provide illustrative examples of ways a crime may be committed—
the quintessential definition of “means.” Id. Finally, some statutes “identify which things must be
charged (and so are elements) and which need not be (and so are means).” Id. (citation omitted)
Case law from the jurisdiction plays a critical role. “When [a state-court ruling] exists, a
sentencing judge need only follow what it says.” Id. (citation omitted). If unanswered by either
statute or precedent, the Court may examine conviction documents such as indictments and jury
instructions, but only to see whether they “include[] the statute’s alternative terms, [which] is as
clear an indication as any that each alternative is only a possible means of commission, not an
element.” Id. (citation omitted). If none of the tools above provides guidance, the Court may not
use the conviction to enhance a sentence under the ACCA. See United States v. Huizar, 688 F.3d
1193, 1195 (10th Cir. 2012) (stating that courts must be “certain” the prior conviction
“necessarily” qualifies under the ACCA to apply the enhancement).

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The first and third methods—examining the statue and looking at conviction records—do
not provide a clear answer.

Oregon’s first-degree robbery statute contains a list of three

alternatives that could either be elements or means. Facially, they appear to be different ways of
committing the same crime: committing a robbery while armed with a deadly weapon,
threatening or attempting to threaten with a dangerous weapon, or causing or attempting to cause
serious physical injury. See Or. Rev. Stat. 164.415(1)(a)-(c). Whether the prosecutor would have
to charge (and a jury have to agree on the specific method employed) to sustain a conviction, is
unclear. Under one reading, the alternatives are more akin to aggravating factors that may require
specific proof, without which only third-degree robbery exists. Yet there is no separate or
different punishment depending on the subsection violated. Unfortunately, the jury instructions
or indictments used in Hammons’ cases from the Umatilla and Lynn County Circuit Courts are
not available. The judgments of record do not reflect the particular subsection implicated his two
convictions for first-degree robbery.
Looking to decisions of the Oregon courts, the third tool available to understand whether
statutory alternatives are means or elements, more concretely answers the divisibility question.
In State v. Edwards, the Oregon Court of Appeals considered whether the trial court plainly erred
by failing to merge multiple counts for first-degree robbery premised on the same conduct. 281
P.3d 675, 677 (Or. Ct. App. 2012). Although different statutory alternatives (subsections a and c)
were implicated, the court of appeals held “that the subparagraphs in ORS 164.415(1) define a
single crime[.]” Id. In reaching its decision, the court explained that multiple convictions based
on the same conduct would only be appropriate if “each statutory provision required proof of an
element the others do not,” and even that even the state “concede[d] that a single robbery

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occurred . . . and that the legislature intended subsections 1(a) and 1(c) to constitute alternative
theories of a single crime rather than multiple crimes.” Id.
Because the Oregon Court of Appeals has spoken on issue, the Court is bound to follow
its decision. Under Oregon law, first-degree robbery is not divisible and the Court may not
employ the modified categorical approach to determine whether Hammons’ convictions arose
from the two subsections of the statute that appear to require the type of force Johnson 2010
mandates. As a result, Hammons’ convictions do not withstand scrutiny under the ACCA’s
force clause because first-degree robbery may be based on mere possession of a firearm while
using minimal force to deprive a victim of personal property.
The Court recognizes that possession of a deadly weapon increases the likelihood of
violence by orders of magnitude. Yet the ACCA’s “force clause” does not deal in probabilities.
Instead, the ACCA requires “violent force. . . . capable of causing physical pain or injury to
another person.” Johnson 2010, 559 U.S. at 140. To read Section 164.415(1)(a) of Oregon’s first
degree robbery statute as requiring violent force is not supported under either the existing case
law or the plain language of the statute. It would require the Court to engraft into the analysis an
exception for a predicate felony where there is “a serious potential risk of physical injury to
another,” which is exactly the language the Supreme Court determined was unconstitutional in
Johnson 2015.

Because Hammons has only one qualifying conviction under the ACCA,

aggravated assault against a household member under New Mexico law, the Court concludes that
Hammons should be resentenced.
CONCLUSION
For the reasons stated above, the Court recommends that Hammons’ motion pursuant to

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28 U.S.C. § 2255 [CV Doc. 6; Doc. 114] be GRANTED and he be RESENTENCED.

___________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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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