Johnson v. United States of America

Filing 24

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez NOT ADOPTING 19 REPORT AND RECOMMENDATIONS re 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Eric L. Johnson. IT IS THEREFORE ORDERED that Ju dge Garza's Proposed Findings andRecommended Disposition, (CV Doc. 19 ), should NOT BE ADOPTED. Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, (CV Doc. 7 ), will be DENIED. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ERIC LAMONT JOHNSON,
Defendant-Petitioner,
No. CV 16-00548 MV/CG
No. CR 03-00477 MV

v.
UNITED STATES OF AMERICA,
Plaintiff-Respondent.

MEMORANDUM OPINION AND ORDER NOT ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on United States Magistrate Judge Carmen E.
Garza’s Proposed Findings and Recommended Disposition (the “PFRD”), (CV Doc. 19),
filed November 14, 2016.1 In the PFRD, Judge Garza concluded that Petitioner Eric
Lamont Johnson was improperly sentenced under the United States Sentencing
Guidelines and recommended that his Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody (the “Motion”), (CV Doc. 1),
be granted. (CV Doc. 19 at 12).
The parties were notified that written objections to the PFRD were due within 14
days. (CV Doc. 19 at 12). Respondent United States of America filed United States’
Objections to the Magistrate Judge’s Proposed Findings and Recommended Disposition
(the “Objections”), (Doc. 21), on November 25, 2016, and Petitioner filed his Response
to United States’ Objections to Magistrate Judge’s Proposed Findings and
Recommended Disposition, (Doc. 22), on November 30, 2016. After a de novo review of
the record and the PFRD, the Court denies Petitioner’s Motion.

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Documents referenced as “CV Doc. ____” are from case number CV 16-00548 MV/CG. Documents
referenced as “CR Doc. ____” are from case number CR 03-00477 MV.

I.

Background
On October 21, 2004, Petitioner pled guilty to possessing a firearm during and in

relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). (CR Doc.
144). Pursuant to the plea agreement, Respondent recommended Petitioner receive a
60 month sentence–the statutory minimum. (CR Doc. 147 at 6). However, Petitioner
qualified as a career offender under the United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) based on prior convictions for crimes of violence. (CR Doc.
235 at 3). Specifically, Petitioner’s convictions for being a prisoner in possession of a
weapon qualified as crimes of violence under the residual clause in
§ 4B1.2(a)(2) of the Guidelines, which defined a crime of violence as any crime that
“involves conduct that presents a serious potential risk of physical injury to another.”
(CR Doc. 235 at 3); U.S.S.G. § 4B1.2(a)(2) (2008). Because of Petitioner’s career
offender status, his Guideline sentence range was 360 months to life imprisonment. (CR
Doc. 246 at 7, 10, 29, 32-33). Ultimately, Petitioner received a 180 month sentence in
December, 2008. (CR Doc. 246 at 37, 40).
On June 9, 2016, Petitioner filed his Motion, arguing that he was
unconstitutionally sentenced following the Supreme Court of the United States’ ruling in
Johnson v. United States, 135 S. Ct. 2551 (2015), and the Tenth Circuit Court of
Appeals’ ruling in United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). (CV Doc. 9
at 3-5). In Johnson, the Supreme Court held that the residual clause in the Armed
Career Criminal Act (“ACCA”) was unconstitutionally vague. 135 S. Ct. at 2557. In
Madrid, the Tenth Circuit concluded that the identical residual clause in § 4B1.2(a)(2) is
also unconstitutionally vague and “cannot be used to justify” enhancing a criminal

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defendant’s sentence. 805 F.3d at 1210. The Tenth Circuit necessarily held in Madrid
that the Guidelines may be void for vagueness. Id. at 1210-11. Petitioner argued that
Johnson and Madrid are retroactively applicable to his case and he is entitled to be
resentenced. (CV Doc. 9 at 8).
Respondent countered that Johnson is not retroactively applicable in collateral
proceedings challenging the constitutionality of sentences enhanced under §
4B1.2(a)(2). (CV Doc. 12 at 4-10). According to Respondent, Johnson, as applied to §
4B1.2(a)(2), operated as a procedural rule that did not apply retroactively. (CV Doc. 12
at 4-10). In the alternative, Respondent requested the Court stay these proceedings
pending the outcome of Beckles v. United States, 137 U.S. 886 (2017), which had not
yet been decided.
On November 11, 2016, Judge Garza declined to stay these proceedings and
recommended granting Petitioner’s Motion. (CV Doc. 19 at 3, 12). Judge Garza denied
a stay because Petitioner could have been eligible for release if the Court granted
Petitioner’s Motion. (CV Doc. 19 at 3) (citing U.S. v. Miller, No. 16-8080 (10th Cir. Nov.
2, 2016); U.S. v. Carey, No. 16-8093 (10th Cir. Nov. 4, 2016)). Further, Judge Garza
concluded that Johnson and Madrid were retroactively applicable to Petitioner’s
sentence following the Supreme Court’s decision in Welch v. United States, 136 S. Ct.
1257 (2016). Finally, Judge Garza examined the record and determined that Petitioner’s
sentence was enhanced, at least in part, in reliance on the unconstitutional residual
clause in § 4B1.2(a)(2). (CV Doc. 19 at 10-11). Thus, because Petitioner was
unconstitutionally sentenced and was eligible for relief under Johnson, Judge Garza
recommended granting Petitioner’s Motion. (CV Doc. 19 at 12).

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Respondent timely objected to Judge Garza’s PFRD. (CV Doc. 21). Respondent
primarily objected to Judge Garza’s declination to stay these proceedings. Respondent
maintained that the more prudent course of action was to stay this case pending the
Supreme Court’s decision in Beckles. (CV Doc. 21 at 2). Finally, Respondent stated that
if the Court denied a stay, the Court should reject Judge Garza’s recommendation. (CV
Doc 21 at 2-3). Respondent cites its prior brief but does not specifically object to any
part of Judge Garza’s analysis. (CV Doc. 21 at 3).
In response, Petitioner argued that a stay was inappropriate following the Tenth
Circuit’s orders in United States v. Miller, No. 16-8080 (10th Cir. Nov. 2, 2016), United
States v. Carey, No. 16-9083 (10th Cir. Nov. 4, 2016), and United States v. Smith, No.
16-8091 (10th Cir. Nov. 9, 2016). Petitioner also cited his prior briefing in support of
Judge Garza’s PFRD. (CV Doc. 22 at 3).
On March 6, 2017, the Supreme Court decided Beckles, holding that the
Guidelines are not subject to vagueness challenges and that the residual clause in §
4B1.2 is not unconstitutionally vague. 137 S. Ct. at 891-92. Specifically, the Court
reasoned that “[b]ecause they merely guide the district courts’ discretion, the Guidelines
are not amenable to a vagueness challenge.” Id. at 894. Thus, Johnnson is inapplicable
to the Guidelines, and the Tenth Circuit’s decision in Madrid has been abrogated. Id. at
892 n.2.
II.

Analysis
Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings for the

United States District Courts, a district judge may, under 28 U.S.C. § 636(b), refer a
pretrial dispositive motion to a magistrate judge for proposed findings of fact and

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recommendations for disposition. Within fourteen days of being served, a party may file
objections to this recommendation. Rule 8(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts. A party may respond to another
party’s objections within fourteen days of being served with a copy; the rule does not
provide for a reply. FED. R. CIV. P. 72(b).2
When resolving objections to a magistrate judge’s recommendation, the district
judge must make a de novo determination regarding any part of the recommendation to
which a party has properly objected. 28 U.S.C. § 636(b)(1)(C). Filing objections that
address the primary issues in the case “advances the interests that underlie the
Magistrate’s Act, including judicial efficiency.” U.S. v. One Parcel of Real Prop., With
Bldgs., Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1059 (10th Cir.
1996). Objections must be timely and specific to preserve an issue for de novo review
by the district court or for appellate review. Id. at 1060. Additionally, issues “raised for
the first time in objections to the magistrate judge’s recommendation are deemed
waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see also U.S. v.
Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001) (“In this circuit, theories raised for
the first time in objections to the magistrate judge’s report are deemed waived.”).
In this case, Respondent objected to Judge Garza’s refusal to stay the case and
to Judge Garza’s ultimate recommendation. (CV Doc. 21 at 2-4). Because Beckles has
been decided, the stay issue is mooted. Similarly, Beckles resolves the merits of
Petitioner’s Motion. Both Petitioner’s Motion and Judge Garza’s recommendation rested
on the premises that Johnson applies to the Guidelines and that § 4B1.2(a)(2) is
2

The Federal Rules of Civil Procedure may be applied to the extent that they are not inconsistent with any
statutory provisions or the Rules Governing Section 2255 Proceedings. Rule 12 of the Rules Governing
Section 2255 Proceedings for the United States District Courts.

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unconstitutionally vague. (CV Doc. 9 at 4-5; Doc. 19 at 4). Beckles unequivocally states
that because the Guidelines are not subject to vagueness challenges, Johnson does not
apply to the Guidelines and § 4B1.2(a)(2) is not unconstitutionally vague. 137 S. Ct. at
891-92. Thus, even if Petitioner was sentenced in reliance on the residual clause, he is
ineligible for relief. See U.S. v. Evans, No. 16-1171 (10th Cir. Mar. 27, 2017)
(unpublished) (affirming denial of § 2255 motion challenging sentence in light of
Beckles); U.S. v. Taylor, No. 16-1350 (10th Cir. Mar. 13, 2017) (unpublished) (same).
III.

Conclusion
For the foregoing reasons, the Court finds that one of Respondent’s objections is

moot and that Petitioner is ineligible for relief following Beckles.
IT IS THEREFORE ORDERED that Judge Garza’s Proposed Findings and
Recommended Disposition, (CV Doc. 19), should NOT BE ADOPTED. Petitioner’s
Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody, (CV Doc. 7), will be DENIED.

___________________________________
THE HONORABLE MARTHA VAZQUEZ
UNITED STATES DISTRICT JUDGE

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