King v. United States of America

Filing 15

MAGISTRATE JUDGE'S SUPPLEMENTAL PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Kirtan Khalsa regarding Defendant/Movant's Emergency Motion to Correct Sentence pursuant to 28 U.S.C. § 2255. Objections to Supplemental Proposed Findings and Recommended Disposition due by 3/3/2017. 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).) (kmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
v.

Civ. No. 16-501 MV/KK
(Cr. No. 02-2092 MV)

DAVID LOUIS KING,
Defendant/Movant.
MAGISTRATE JUDGE’S SUPPLEMENTAL
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Defendant/Movant David Louis King’s
(“Defendant”) Emergency Motion to Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1)
(“Section 2255 Motion”), filed May 26, 2016.
I. Introduction
On December 1, 2016, pursuant to a referral by United States District Judge Martha
Vázquez, I filed Proposed Findings and a Recommended Disposition (“PFRD”) recommending
that the Court grant Defendant’s Section 2255 Motion, vacate his sentence, and resentence him at
the Court’s earliest opportunity. (Docs. 4, 12.) Since that date, developments of potential
significance to the PFRD have occurred. The Tenth Circuit has issued United States v. Harris,
844 F.3d 1260 (10th Cir. 2017), and, as a result, the Government has modified its position in this
case.

Also, the Government has objected to the PFRD, and one district judge and three

magistrate judges in this District have since reached conclusions contrary to those I reached in
the PFRD. These Supplemental Proposed Findings and Recommended Disposition will address
these developments.

On February 18, 2004, Defendant pled guilty to being a felon in possession of a firearm
and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). (Doc. 1 at 2; CR Docs.
37, 56, 57.) The Court determined that Defendant had previously been convicted of three violent
felonies, and therefore imposed an enhanced sentence of fifteen years’ imprisonment pursuant to
the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1). (CR Doc. 83 at 24, 28.) In
his Section 2255 Motion, Defendant asks the Court to reduce his sentence, because the armed
robbery conviction on which the Court relied to enhance it no longer qualifies as a violent felony
under the ACCA in light of the United States Supreme Court’s decision in Johnson v. United
States, — U.S. —, 135 S. Ct. 2551 (2015). 1 (Docs. 1, 10.) In the PFRD, I agreed, and
recommended that Defendant’s Section 2255 Motion be granted. (See generally Doc. 12.) I
have meticulously reexamined that recommendation in light of the Tenth Circuit’s decision in
Harris, 844 F.3d at 1260, the Government’s objections and modified position, and recent
decisions by other judges in this District.

However, for the following reasons, these

developments do not alter my recommendation.
II. Analysis
As explained in detail in the PFRD, which I incorporate by reference, the pertinent issue
in this case is whether New Mexico armed robbery categorically has “as an element the use,
attempted use, or threatened use of physical force against the person of another,” and therefore
qualifies as a “violent felony” under the ACCA’s force clause. 2 18 U.S.C. § 924(e); Harris, 844

1

I will refer to Johnson v. United States, — U.S. —, 135 S. Ct. 2551 (2015), as “Samuel Johnson” to distinguish it
from Johnson v. United States, 559 U.S. 133 (2010), which I will refer to as “Curtis Johnson.” Many courts refer to
these cases as “Johnson II” and “Johnson I,” respectively; however, this nomenclature could suggest that the two
decisions arise out of the same litigation or concern the same defendant, which they do not.

2

To determine whether an offense is a violent felony under the ACCA’s force clause, courts must generally apply
what is called the “categorical approach,” considering only the offense’s statutory elements, and not the actual facts
underlying the defendant’s prior conviction. Harris, 844 F.3d at 1263; United States v. Smith, 652 F.3d 1244, 1246

2

F.3d at 1263-64. If armed robbery qualifies as a violent felony under the force clause, then the
Court may rely on Defendant’s 1986 New Mexico armed robbery conviction to enhance his
sentence. However, if the offense does not qualify as a violent felony under the force clause,
then the Court can no longer rely on Defendant’s conviction of it, because it can only have
qualified as an ACCA predicate offense under the residual clause, which Samuel Johnson struck
down as unconstitutionally vague. 135 S. Ct. at 2557-58.
In the PFRD, I proposed to find that New Mexico armed robbery does not categorically
have “as an element the use, attempted use, or threatened use of physical force against the person
of another” within the meaning of the force clause. 18 U.S.C. § 924(e); (Doc. 12.) 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.” Curtis Johnson, 559 U.S. at 140 (emphasis in
original). Although the “degree of force necessary to inflict pain” might consist of no more than
“a slap in the face, for example,” it certainly consists of something more than mere offensive
touching. Id. at 143; Harris, 844 F.3d at 1265. As demonstrated in the PFRD, there is at least a
realistic probability that a defendant could be convicted of New Mexico armed robbery without
using, or threatening or attempting to use, force capable of causing physical pain or injury to
another person. (Doc. 12 at 8-22.)
The Tenth Circuit recently addressed a similar question in Harris, and its decision must
therefore inform, though not necessarily change, the reasoning in the PFRD. In Harris, the
Tenth Circuit held that Colorado robbery categorically has as an element the use, attempted use,
or threatened use of physical force against the person of another, and so satisfies the ACCA’s
(10th Cir. 2011). This approach requires courts to presume that a prior conviction “rested upon nothing more than
the least of the acts criminalized” by the applicable state statute. Moncrieffe v. Holder, — U.S. —, 133 S. Ct. 1678,
1684 (2013) (internal punctuation marks omitted); Harris, 844 F.3d at 1264. However, “in construing the minimum
culpable conduct, such conduct only includes that in which there is a realistic probability, not a theoretical
possibility the state statute would apply.” Harris, 844 F.3d at 1264 (internal quotation marks omitted).

3

force clause. 844 F.3d at 1270. In so holding, the Harris court relied on a Colorado Supreme
Court decision which held that Colorado robbery “tracks the elements of common law robbery,”
and which emphasized the “violent nature of the taking” as the gravamen of the offense. Id. at
1266-67 (quoting Colorado v. Borghesi, 66 P.3d 93, 99-101 (Colo. 2003)). The Harris court
rejected the defendant’s argument that the Colorado Supreme Court “might not have meant
‘violent’ when it said ‘violent,’” and concluded that “robbery in Colorado requires a ‘violent
taking,’ which we believe is consistent with the physical force required by the ACCA’s elements
clause.” Id. at 1266-67. The Harris court further concluded that Colorado robbery by “threats or
intimidation” requires the threatened use of Curtis Johnson physical force, rejecting the
defendant’s argument that the threatened use of force could be against the property, rather than
the person, of another. Id. at 1268-70.
Two points in the Harris decision are particularly instructive here. First, the Harris court
held that, because the Colorado Court of Appeals’ decision in Colorado v. Davis, 935 P.2d 79
(Colo. App. 1996), predated the Colorado Supreme Court’s decision in Borghesi, Davis was “not
controlling . . . [t]o the extent [it] suggests a Colorado robbery conviction can be based on less
than violent force.” Harris, 844 F.3d at 1267. Thus, the Tenth Circuit intimated that the force
used in Davis was “less than violent force.” Id. The Davis court, in turn, held that Colorado
robbery “includes the snatching of an object attached to the person of another if force is used to
tear or break the attachment.” 935 P.2d at 84-85. As such, the Davis court affirmed the
defendant’s robbery conviction where the defendant “pulled [a] purse from the victim’s arm with
sufficient force to break the strap.” Id. at 86. The Harris decision therefore suggests that the
force used in a Davis-like purse-snatching would not rise to the level of Curtis Johnson physical
force. 844 F.3d at 1267.

4

New Mexico law regarding purse-snatchings is similar to Davis, but more extensive and
authoritative. In 1976, the New Mexico Supreme Court held that
[t]he 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 jury’s discretion. . . . Assuming that the docketing
statement, which was filed by the defendant-respondent, presents the facts
accurately, and viewing these facts in the light most favorable to the State, we
conclude that the evidence supported the verdict of the jury that the snatching of
the purse was accompanied by force sufficient to convert the crime from larceny
to robbery.
New Mexico v. Clokey, 1976-NMSC-035, ¶ 3, 89 N.M. 453, 553 P.2d 1260. The docketing
statement on which the New Mexico Supreme Court relied, in turn, described the facts as
follows:
[t]he complaining witness was walking toward the [d]efendant and was carrying a
purse under her left arm. The purse was not fastened to her person, nor was it in
the grasp of her hand. The [d]efendant allegedly ran toward the complaining
witness and with his left hand pushed the purse through the woman’s arm,
grabbed the purse and ran. It is alleged that in so doing the [d]efendant touched
the inside of the woman’s arm, causing the woman to stumble. The woman was
in her seventies and tottered unsteadily when she walked. There was no
resistance offered by the woman whose purse was taken; there was no struggle for
the purse; and the [d]efendant, in the complaining witness’s words, “snatched” the
purse in one continuous motion and ran.
New Mexico v. Clokey, No. 2479, Docketing Statement at 1-2 (N.M. App. filed Mar. 22, 1976).
Likewise, in New Mexico v. Curley, the New Mexico Court of Appeals held that the jury
could find a purse snatching to constitute robbery if it determined that the defendant “shoved the
victim to help himself relieve her of her purse.” 3 1997-NMCA-038, ¶ 15, 123 N.M. 295, 939
P.2d 1103. The Curley victim described the force used against her as “kind of a shove,” as a
result of which she “kind of leaned—was pushed—toward [her] daughter.” Id. at ¶ 3, 123 N.M.
3

Conversely, the Curley court held that the jury could find that the defendant “took the purse by surprise from a
person who was not resisting,” and therefore committed larceny, if the jury determined the shove was “an incidental
touching due to [the d]efendant’s drunkenness,” and not a deliberate act to aid in the purse snatching. 1997-NMCA038 at ¶¶ 17-18, 123 N.M. 295, 939 P.2d 1103.

5

295, 939 P.2d 1103. Finally, in New Mexico v. Verdugo, the New Mexico Court of Appeals held
that there was sufficient evidence to sustain the defendant’s robbery conviction where he
“grabbed” the victim’s purse from her arm, the victim “struggled to retain control” of it, and “the
strap eventually broke.” 2007-NMCA-095, ¶ 27, 142 N.M. 267, 164 P.3d 966, cert. granted,
142 N.M. 330 (N.M. 2007), cert. quashed, 145 N.M. 532 (N.M. 2008). At trial, the victim
testified that she struggled to hold onto her purse for “[m]aybe a couple of seconds” before the
purse strap broke. New Mexico v. Verdugo, COA No. 25,534, Partial Transcript of Proceedings
at TR-94 (N.M. App. filed Sept. 28, 2005).
As noted above, the Tenth Circuit in Harris determined that Davis, a Colorado Court of
Appeals decision, was not controlling to the extent it was inconsistent with Borghesi, a later
Colorado Supreme Court decision. 844 F.3d at 1267. Here, however, the New Mexico Court of
Appeals’ purse-snatching decisions in Curley and Verdugo are wholly consistent with the New
Mexico Supreme Court’s prior purse-snatching decision in Clokey. The Verdugo decision also
post-dates, and is consistent with, New Mexico v. Bernal, 2006-NMSC-050, 140 N.M. 644, 146
P.3d 289. Although the New Mexico Supreme Court stated in Bernal that, “[s]ince the robbery
statute is designed to protect citizens from violence, . . . the legislature intended to allow for
separate charges for each individual against whom violence or the threat of violence is separately
used” in the course of a taking, it used the terms “force” and “violence” interchangeably,
consistent with clearly established New Mexico precedent, and made no attempt to address the
nature or quantum of force this element requires, or to revisit Clokey and its progeny. 4 Id. at ¶¶

4

The Bernal court did cite to United States v. Lujan, 9 F.3d 890 (10th Cir. 1993), in which the Tenth Circuit held
that New Mexico robbery is a violent felony under the ACCA. 2006-NMSC-50 at ¶ 28, 140 N.M. 644, 146 P.3d
289. However, both Bernal and Lujan were decided well before Curtis Johnson, and thus did not consider whether
New Mexico robbery categorically requires the use of force capable of causing physical pain or injury to another
person. See United States v. Killion, 7 F.3d 927, 930 (10th Cir. 1993) (Tenth Circuit panel decision is not binding on
this Court where there is a “superseding contrary decision by the Supreme Court”); see, e.g., United States v. Eason,

6

19, 28, 31. Thus, unlike the Harris court in its treatment of Davis, here there is no basis on
which to discount Clokey, Curley, and Verdugo. See Harris, 844 F.3d at 1264 (“Decisions from
the state supreme court best indicate” what conduct the elements of an offense realistically
encompass, “supplemented by decisions from the intermediate-appellate courts.”). And, like the
Harris court, I do not believe that the force used in purse-snatching robberies rises to the level of
Curtis Johnson physical force. (Doc. 12 at 10-11.)
The second point in Harris that I find particularly pertinent here is how the court
distinguished the matter before it from United States v. Gardner, 823 F.3d 893 (4th Cir. 2016).
Harris, 844 F.3d at 1267-68 & n.6. In Gardner, the Fourth Circuit held that North Carolina
robbery is not a violent felony under the ACCA’s force clause. 823 F.3d at 803-04. The
Gardner court reasoned that “the minimum conduct necessary to sustain a [robbery] conviction .
. . does not necessarily include the use, attempted use, or threatened use of force capable of
causing physical pain or injury to another person,” where “the degree of force used [to commit a
robbery] is immaterial, so long as it is sufficient to compel the victim to part with his property.”
Id. (internal quotation marks and citations omitted). Distinguishing Gardner from the matter
before it, the Harris court suggested that North Carolina robbery was not a violent felony under
the ACCA’s force clause because, unlike Colorado robbery, it did not “remain[] committed to
the common law definition of robbery” in this regard. 5 844 F.3d at 1267-68 & n.6.
New Mexico robbery law is very like the North Carolina law the Tenth Circuit
distinguished from Colorado law in Harris. As long ago as 1967, the New Mexico Court of
829 F.3d 633, 641 (8th Cir. 2016) (reevaluating Eighth Circuit precedent regarding application of ACCA to Arkansas
robbery in light of Curtis Johnson).
5

The Harris court also distinguished United States v. Parnell, 818 F.3d 974 (9th Cir. 2016) (Massachusetts armed
robbery), United States v. Bell, 840 F.3d 963 (8th Cir. 2016) (Missouri robbery), and Eason, 829 F.3d at 633
(Arkansas robbery), for similar reasons. 844 F.3d at 1267-68 & n.6.

7

Appeals held that, “[w]here [robbery by] force is charged, the issue is not how much force was
used, but whether the force was sufficient to compel the victim to part with his property.” New
Mexico v. Sanchez, 1967-NMCA-009, ¶ 11, 78 N.M. 284, 430 P.2d 781 (emphasis added). Six
years later, the appellate court reiterated this point:
[t]he use or threatened use of force must be the lever by which the thing of value
is separated from the victim. The amount or degree of force is not the
determinative factor. Evidence of jostling or causing the victim to fall as property
is taken is a sufficient showing to establish the use of force.
New Mexico v. Martinez, 1973-NMCA-120, ¶ 4, 85 N.M. 468, 513 P.2d 402 (emphasis added)
(internal ellipses and citations omitted). In Curley, the appellate court extended this reasoning to
property “attached” to the victim, holding that the force element of robbery is satisfied whenever
the defendant removes property from the victim with sufficient force to overcome some type of
resistance, including “the resistance of attachment.” Curley, 1997-NMCA-38 at ¶¶ 4, 7, 10, 123
N.M. 295, 939 P.2d 1103. Thus,
when property is attached to the person or clothing of a victim so as to cause
resistance, any taking is a robbery, and not larceny, because the lever that causes
the victim to part with the property is the force that is applied to break that
resistance; however, when 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. In our cases where we have not found sufficient force to be
involved, the victim did not resist the property being taken from his person. 6
Id. at ¶¶ 6, 7, 123 N.M. 295, 939 P.2d 1103 (emphasis added).

6

Although the Curley court used the term “dictum” to describe language in Sanchez and Martinez to the effect that
“even a slight amount of force . . . is sufficient” to satisfy the force element of New Mexico robbery, the court
nevertheless harmonized this language with other New Mexico Court of Appeals decisions to derive the rule of law
it applied. 1997-NMCA-38 at ¶¶ 4, 6, 7, 123 N.M. 295, 939 P.2d 1103. Moreover, as discussed herein and in the
undersigned’s original PFRD, the quantum of force is not determinative under New Mexico robbery law; what is
determinative is whether the force used is sufficient to overcome some kind of resistance. Sanchez, 1967-NMCA009 at ¶ 11, 78 N.M. 284, 430 P.2d 781; Martinez, 1973-NMCA-120 at ¶ 4, 85 N.M. 468, 513 P.2d 402; Curley,
1997-NMCA-38 at ¶¶ 4, 7, 10, 123 N.M. 295, 939 P.2d 1103. Logically, if the victim’s resistance is slight, then the
force used to overcome it may also be slight, and yet still sufficient to satisfy robbery’s force element. New
Mexico’s line of purse-snatching cases illustrates this point, and shows that criminal defendants in New Mexico
have been convicted of robbery for using less than Curtis Johnson physical force.

8

In short, for nearly fifty years, the law in New Mexico has been that robbery requires the
use of, not any particular quantum of force, but rather sufficient force to overcome some kind of
resistance. Id. at ¶¶ 9-10, 123 N.M. 295, 939 P.2d 1103. This force element is consistent with
the force element of North Carolina robbery, which Gardner found not to rise to the level of
Curtis Johnson force, and which Harris found to be distinct from the force element of Colorado
robbery. See also United States v. Redrick, 841 F.3d 478, 482 (D.C. Cir. 2016) (government
conceded Maryland robbery is not a violent felony under ACCA’s force clause, where force
element of crime is satisfied “so long as the victim resisted the taking and her resistance had
been overcome”) (internal quotation marks and citation omitted); but see United States v. Fritts
841 F.3d 937, 943-44 (11th Cir. 2016) (Florida robbery is a violent felony under the ACCA’s
force clause, because, inter alia, the force element of the crime “requires both resistance by the
victim and physical force by the offender that overcomes that resistance”) (internal quotation
marks and citation omitted). Thus, although the Harris court found that Colorado robbery
satisfies the ACCA’s force clause, its reasoning supports the conclusion that New Mexico
robbery does not.
In other cases in this District, and in its Objections to the original PFRD in this case, the
Government expressly conceded that New Mexico simple robbery does not categorically require
the use of Curtis Johnson force:
[a]s conceded for purposes of this case, force necessary to effect a robbery when
not armed with a deadly weapon may not always rise to the level of violent force.
. . . [A] mere unarmed purse snatch may amount to robbery, but one cannot
conclude as a categorical matter that all unarmed purse snatches include “force
capable of causing physical pain or injury to another person.”
(Doc. 13 at 11); see also Raymond v. United States, Civ. No. 16-634 MV/KBM, Order Granting
§ 2255 Relief (Doc. 16, D.N.M. filed Nov. 8, 2016) (granting defendant’s Section 2255 motion

9

for resentencing because “the Government concedes that the prior robbery conviction [simple
robbery under N.M. Stat. Ann. § 30-16-2] does not survive scrutiny under [Curtis Johnson].”);
Silva v. United States, Civ. No. 16-674 JCH/KK, Order (Doc. 11, D.N.M. filed Oct. 11, 2016)
(granting defendant’s Section 2255 motion for resentencing) and Silva v. United States, Civ. No.
16-674 JCH/KK, Notice of Concession (Doc. 7, D.N.M. filed Sept. 22, 2016) (“Defendant’s
conviction for [New Mexico simple robbery] can no longer be considered a qualifying
conviction under the ACCA” because the offense “can be committed without force causing
physical pain or injury.”).
Relying on Harris, however, the Government retracted its concession in this case on
February 6, 2017. (Doc. 14.) In the original PFRD, I gave the Government’s concession “some
weight,” and thus must reweigh the matter without it following the Government’s retraction.
(Doc. 12 at 14.) Nevertheless, for the other reasons stated in the PFRD, and in light of the
material distinctions between the Colorado robbery law at issue in Harris and the New Mexico
robbery law at issue here, I conclude that, even without the Government’s concession tipping the
scales, New Mexico simple robbery “does not necessarily include [as an element] the use,
attempted use, or threatened use of force capable of causing physical pain or injury to another
person,” Gardner, 823 F.3d at 804, and therefore does not satisfy the force clause, and is not a
violent felony, under the ACCA.
I have also considered whether the reasoning of recent decisions and recommended
dispositions in other cases in this District should cause me to alter my original recommendation.
See Garcia v. United States, Civ. No. 16-240 JB/LAM, Mem. Op. & Order Overruling Mag. J.’s
Amended Proposed Findings & Recommended Disposition (Doc. 37, D.N.M. filed Jan. 31,
2017) (New Mexico robbery is “violent felony” under ACCA’s force clause) (Browning, J.);

10

Rhoads v. United States, Civ. No. 16-325 JCH/GBW, Proposed Findings & Recommended
Disposition (Doc. 17, filed Jan. 25, 2017) (New Mexico armed robbery is “crime of violence”
under U.S.S.G. § 4B1.2’s force clause) (Wormuth, Mag. J.); Hurtado v. United States, Civ. No.
16-646 JAP/GJF, Proposed Findings & Recommended Disposition (Doc. 17, D.N.M. filed Jan.
11, 2017) (New Mexico robbery is “crime of violence” under U.S.S.G. § 4B1.2’s force clause)
(Fouratt, Mag. J.); Baker v. United States, Civ. No. 16-715 PJK/GBW, Proposed Findings &
Recommended Disposition (Doc. 9, D.N.M. filed Dec. 15, 2016) (New Mexico armed robbery is
“violent felony” under ACCA’s force clause) (Wormuth, Mag. J.); Contreras v. United States,
Civ. No. 16-671 RB/SMV, Proposed Findings & Recommended Disposition (Doc. 12, D.N.M.
filed Dec. 6, 2016) (New Mexico robbery is “crime of violence” under U.S.S.G. § 4B1.2’s force
clause) (Vidmar, Mag. J.). 7 After painstaking consideration of the above decisions, however, I
respectfully maintain a contrary position.
Finally, I will address two points raised in the Government’s December 15, 2016
Objections to the PFRD. (Doc. 13.) Initially, the Government in its Objections continues to
argue that a New Mexico armed robbery conviction requires proof of the use, as opposed to the
mere possession, of a deadly weapon during the commission of a robbery. (Doc. 13 at 3-9.) I
perceive two significant flaws in this position. First, it is flatly inconsistent with New Mexico v.
Duran, 1977-NMCA-99, 91 N.M. 38, 570 P.2d 39, which held that, under New Mexico’s armed
robbery statute, one can be “armed with” a deadly weapon without using it. (Doc. 12 at 17-18.)
That this determination was not the only reason for the Duran court’s ruling, or even the
predominant one, does not make it obiter dictum, as the Government claims. 1977-NMCA-99, ¶

7

Cases considering Section 4B1.2 of the United States Sentencing Guidelines require a somewhat different analysis,
although not necessarily a different outcome, because robbery has long been enumerated as a “crime of violence” in
the guideline’s commentary, and is now enumerated in its text. See, e.g., Hurtado, Civ. No. 16-646 JAP/GJF,
Proposed Findings & Recommended Disposition at 23-24 & n. 19.

11

9, 91 N.M. 38, 570 P.2d 39; (see Doc. 13 at 7-8); see also, e.g., New Mexico v. Chouinard, 1979NMCA-145, ¶¶ 5-6, 93 N.M. 634, 603 P.2d 744 (New Mexico’s firearm enhancement provision
requires “use” of firearm, while its armed robbery statute requires “merely being armed” with a
deadly weapon; “[t]he use of a firearm is something beyond mere possession of it,” and “[b]y
employing the term ‘uses’ instead of ‘while armed’ the Legislature requires something more than
merely being armed”).
Second, the Government reads New Mexico v. Hamilton in a way that is internally
inconsistent. The Government relies on the following language in Hamilton to support its
position:
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.
Hamilton, 2000-NMCA-63 at ¶ 12, 129 N.M. 321, 6 P.3d 1043 (emphasis added); (see Doc. 13
at 5.) To read this language to require the use of a deadly weapon to prove armed robbery in
every case, however, the Government must discard the Hamilton court’s subsequent quotation of
Massachusetts v. Goldman, 367 N.E.2d 1181, 1182 (Mass. App. 1977), i.e., “[p]ossession of a
dangerous weapon, rather than its use, is the essential element of armed robbery.” 2000-NMCA63 at ¶ 13, 129 N.M. 321, 6 P.3d 1043. If Hamilton meant what the Government says, then the
court would not have quoted Goldman for exactly the opposite proposition. 8

8

The Government’s reliance on the Committee Commentary to the New Mexico Uniform Jury Instruction on armed
robbery is similarly flawed. (See Doc. 13 at 6.) Although the commentary does state that “[a]rmed robbery is an
aggravated form of robbery by use of a deadly weapon,” it immediately adds that “[s]ome courts indicate that being
armed means only that the defendant has the ability to inflict an injury by having the weapon in his possession, not
that the weapon is exhibited.” N.M. U.J.I. 14-1621, Committee Commentary. Thus, at best, the commentary is
equivocal regarding whether use or mere possession is required.

12

On the contrary, it is both more internally consistent, and more logical based on the facts
presented, to read Hamilton as standing for the narrow proposition that, when a defendant steals
a deadly weapon during a robbery, the possession of that stolen weapon may be used to elevate
the offense from simple to armed robbery if the robber subsequently arms himself with it as a
way of completing the robbery, rather than merely possessing the weapon as the bounty of his
crime. In Hamilton, the defendant committed armed robbery when he stole a gun from the
victim’s home, and then “used the handgun . . . to bolster his renewed demands . . . for [her]
money.” Id. at ¶ 13, 129 N.M. 321, 6 P.3d 1043. On those facts, “[w]hen the defendant
acquire[d] the weapon” and “how he use[d] it after its acquisition” were indeed “paramount,”
because he used the stolen gun to complete the robbery, thereby converting it from mere loot he
had stolen to a weapon with which he was armed, i.e., that he had easily accessible and readily
available for use. Id. at ¶¶ 10, 12, 129 N.M. 321, 6 P.3d 1043; see New Mexico v. Padilla, 1996NMCA-72, ¶¶ 1-11, 122 N.M. 92, 920 P.2d 1046 (in context of aggravated burglary, “armed
with a deadly weapon” includes a “deadly weapon which is easily accessible and readily
available for use”) (internal quotation marks and citations omitted). However, the Hamilton
court expressly limited its “highly fact sensitive” inquiry to “the determination of whether a
defendant who seizes a weapon during the commission of a robbery is armed ‘while’ committing
the robbery.” 9 2000-NMCA-063, ¶ 12, 129 N.M. 321, 6 P.3d 1043. To read Hamilton as
requiring courts to apply this inquiry to every armed robbery case contravenes its express
quotation of Goldman, and ignores the exceptional factual circumstances out of which it arose.
9

This is analogous to the issue presented in United States v. Shuler, in which the Tenth Circuit considered whether
the carrying of firearms stolen during a robbery “was ‘in relation to’ the robbery within the meaning of [18 U.S.C.] §
924(c)(1),” which criminalizes, inter alia, the “carr[ying]” of a firearm “during and in relation to” a crime of
violence. 181 F.3d 1188, 1189-90 (10th Cir. 1999). In Shuler, the Tenth Circuit determined that the stolen firearms
in question were not carried “in relation to” the robbery because they “were not intended or available for use in
relation to the robbery, nor did they play an integral role in the robbery.” Id. at 1191. Rather, “the only relationship
between the robbery and the stolen firearms is that the stolen firearms were the bounty or object of the robbery.” Id.

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Finally, in its Objections, the Government relies on United States v. Ramon Silva, 608
F.3d 663 (10th Cir. 2010), to argue that New Mexico armed robbery satisfies the ACCA’s force
clause. (Doc. 13 at 10-11.) In Ramon Silva, the Tenth Circuit held that New Mexico aggravated
assault by means of “unlawfully assaulting or striking at another with a deadly weapon” is a
violent felony under the force clause. 608 F.3d at 669-74. The Government relies on the
following language in Ramon Silva to support its position:
threatening or engaging in menacing conduct toward a victim, with a weapon
capable of causing death or great bodily harm, threatens the use of “force capable
of causing physical pain or injury” in two different ways. The conduct could
always lead to substantial and violent contact, and thus it would always include as
an element the threatened use of violent force. And the conduct could at least put
the victim on notice of the possibility that the weapon will be used more harshly
in the future, thereby constituting a threatened use of force.
Ramon Silva, 608 F.3d at 672 (citations and internal quotation marks omitted); (see Doc. 13 at
10.) This reasoning is unremarkable in the context of the crime at issue in Ramon Silva, i.e., a
crime that has as an element the use of a deadly weapon to threaten or strike at someone. It is
beyond rational debate that, by using a deadly weapon in this manner, an aggressor invariably
communicates to his victim that he may soon use the weapon to inflict death or great bodily
harm.
However, notwithstanding the Government’s arguments to the contrary, this reasoning
cannot properly be extended to New Mexico armed robbery. As discussed above, while New
Mexico robbery does require the use of force, this can be nothing more than the force required to
push a purse out from under the victim’s arm, or pull it from the victim’s grasp. Clokey, 1976NMSC-35 at ¶ 3, 89 N.M. 453, 553 P.2d 1260; Curley, 1997-NMCA-38 at ¶ 12, 123 N.M. 295,
939 P.2d 1103; Verdugo, 2007-NMCA-95 at ¶ 27, 142 N.M. 267, 164 P.3d 966. Such conduct,
unlike the conduct at issue in Ramon Silva, does not invariably express or indicate to the victim

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that the defendant may soon use greater forc e, i.e., force capable of causing the victim physical
pain or injury. See Parnell, 818 F.3d at 980 (a threat to use Curtis Johnson physical force
“requires some outward expression or indication of an intention to inflict pain, harm or
punishment”). Then, as discussed in the undersigned’s PFRD and above, unlike the offense at
issue in Ramon Silva, New Mexico armed robbery does not require the display or use of a deadly
weapon, and so does not invariably encompass the communication of a threat to the victim by
that means, either. (Doc. 12 at 16-20); Parnell, 818 F.3d 980 (mere possession of dangerous
weapon during a robbery does not satisfy the ACCA’s force clause, because “the force clause
requires the actual, attempted or threatened use of physical force, not a mere uncommunicated
willingness or readiness to use such force”) (emphasis in original) (citation omitted).
Possessing a deadly weapon during a robbery certainly involves the risk that deadly force
will be used, but merely possessing a deadly weapon without displaying it does not necessarily
convey a threat to that effect. It is worth noting in this regard that Ramon Silva was decided
before the Supreme Court struck down the ACCA’s residual clause in Samuel Johnson, and as
such the Ramon Silva court had no pressing need to distinguish between the “serious potential
risk of physical injury” as provided by the residual clause, and the “threatened use of physical
force” as provided by the force clause. 18 U.S.C. § 924(e)(2)(B) (emphases added). However,
to the extent Ramon Silva suggests that the risk that violent force will be used is equivalent to a
threat that such force will be used, it conflates the now-invalid residual clause with the still-valid
force clause contrary to Samuel Johnson, 135 S. Ct. at 2557-58, and the latter decision must
control.

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III.

CONCLUSION
For all of the foregoing reasons, and for the additional reasons stated in the PFRD, I

propose to find that New Mexico armed robbery no longer qualifies as a violent felony under the
ACCA, and thus, the Court may no longer rely on Defendant’s prior conviction of this offense to
enhance his sentence.

Consequently, and notwithstanding my misgivings based on policy

considerations described in the original PFRD, (Doc. 12 at 22-25), I recommend that the Court
GRANT Defendant’s Section 2255 Motion, VACATE his sentence, and RESENTENCE him
without enhancement under the ACCA at the Court’s earliest opportunity.

______________________________________
KIRTAN KHALSA
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 allowed.

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