Kirby v. United States of America

Filing 16

ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION re 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Roman Kirby by Senior District Judge James A. Parker. (bap)

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

No.

CV 16-524 JAP/GBW
CR 11-282 JAP

ROMAN KIRBY,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION
On June 3, 2016, Roman Kirby filed a MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL
CUSTODY (Motion). Doc. 1. 1 Defendant contends that his sentence for the offense of
being a felon in possession of a firearm was statutorily increased on the basis of
predicate offenses that only qualified as “violent felonies” under the residual clause of
the Armed Career Criminal Act (ACCA). Doc. 1 at 4. After Defendant was sentenced,
the Supreme Court struck down the residual clause of the ACCA as unconstitutionally
vague. Johnson v. United States, 135 S. Ct. 2551, 2557-61 (2015). 2 Defendant argues that

Citations to “doc.” refer to docket numbers filed in Case No. 16-CV-524-JAP/GBW. Citations to “cr. doc.”
refer to the attendant criminal docket, Case No. 11-CR-282-JAP. For filings made on both dockets, only
the civil docket number is given.
2 The Supreme Court has instructed that its Johnson decision is retroactively applicable to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257, 1265 (2016). Because Defendant filed his § 2255
petition within one year of the Supreme Court’s decision in Johnson, it is properly before the Court to
decide whether Johnson applies to—and justifies vacating—Defendant’s sentence, which was enhanced
under the ACCA. See Dodd v. United States, 545 U.S. 353, 357 (2005).
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his predicate offenses underlying the ACCA enhancement to his sentence are no longer
“violent felonies” under the other clauses of the ACCA. Defendant claims he is entitled
to resentencing without the application of the ACCA’s minimum fifteen-year sentence
of imprisonment. See doc. 12 at 7-22.
The Magistrate Judge filed his Proposed Findings and Recommended
Disposition (PFRD) on February 16, 2017. Doc. 13. The Magistrate Judge recommended
denying Defendant’s Motion on the basis that each of Defendant’s predicate offenses—
Aggravated Assault on a Peace Officer, Shooting at or from a Motor Vehicle /
Aggravated Battery, and Attempted Murder—constitutes a “violent felony” under the
ACCA’s “elements clause.” Id. at 9-27. The elements clause defines a “violent felony”
as 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 the person of
another[.]” 18 U.S.C. § 924(e)(2)(B). Accordingly, the Magistrate Judge recommended
finding that Defendant had at least three “violent felony” offenses justifying the
application of the ACCA enhancement, irrespective of the residual clause. Id. at 37. The
Magistrate Judge alternatively recommended that if the Court were to find that one of
the other three predicate offenses is not a violent felony, the Court should find that
Defendant’s past bribery offense is also a violent felony under the ACCA’s elements
clause; and, this would be a valid alternative predicate for the application of the ACCA
to Defendant’s sentence. Id. at 28-34, 37.
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Defendant sought and was granted an extension of time to file objections to the
PFRD until April 10, 2017. Docs. 14, 15. However, Defendant has not filed objections to
the PFRD, and, upon review of the record, I concur with the Magistrate Judge’s findings
and recommendations.
IT IS ORDERED that the Magistrate Judge’s Proposed Findings and
Recommended Disposition (doc. 13) is ADOPTED and Defendant’s MOTION UNDER
28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON
IN FEDERAL CUSTODY (Doc. 1) is DENIED and will be DISMISSED with prejudice.

________________________________________
JAMES A. PARKER
SENIOR UNITED STATES DISTRICT JUDGE

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