Barela v. United States of America

Filing 11

REPORT AND RECOMMENDATIONS by Magistrate Judge Lourdes A. Martinez re 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Anthony Barela. Objections to R&R due by 4/27/2017. Add 3 days to the dead line if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (atc)

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

No.

CV 16-0588 WJ/LAM
CR 13-3892 WJ

ANTHONY BARELA,
Defendant/Movant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION1
THIS MATTER is before the Court on Defendant/Movant’s (hereinafter “Defendant”)
Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 [Doc. 1],2 filed on June 15, 2016.
Plaintiff/Respondent (hereinafter “the Government”) filed a response on November 25, 2016.
[Doc. 5], and Defendant filed a reply on January 9, 2017 [Doc. 8]. United States District Judge
William P. Johnson referred the claims raised in this case to the undersigned for proposed findings
and a recommended disposition, and a hearing, if necessary. [Doc. 10]. Having considered the
motion, response, relevant law, and the record in this case and in Defendant’s underlying criminal
case contained in Case No. CR-13-3892, the undersigned recommends, for the reasons set forth
below, that Defendant’s § 2255 motion [Doc. 1] and be DENIED and that this case be
DISMISSED with prejudice.
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Within fourteen (14) days after a party is served with a copy of these proposed findings and
recommended disposition, that party may, pursuant to 28 U.S.C. § 636(b)(1), file written objections to such
proposed findings and recommended disposition. A party must file any objections with the clerk of the
United States District Court for the District of New Mexico within the fourteen (14) day period allowed if that
party wants to have appellate review of the proposed findings and recommended disposition. If no objections
are filed, no appellate review will be allowed. Pursuant to Fed. R. Civ. P. 72(b)(2), a party may respond to
another party’s objections within fourteen (14) days after being served with a copy of the objections.
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Hereinafter, all documents from Case No. CIV-16-0588 cited in this decision will be designated as “Doc.”
followed by their docket number, and all documents from Case No. CR-13-3892 cited in this decision will be
designated as “Cr.Doc.”

Factual and Procedural Background
On September 24, 2014, pursuant to a Plea Agreement [Cr.Doc. 35], Defendant pled guilty
to an Indictment [Cr.Doc. 13], which charged him with being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On May 15, 2015, Defendant
was sentenced to a term of 15 years imprisonment, and 3 years of supervised release.
[Cr.Doc. 47 at 2-3].
In his § 2255 motion, Defendant states that he was facing a mandatory minimum sentence
under the Armed Career Criminal Act (“ACCA”) based on two convictions for armed bank
robbery in the United States District Court for the District of New Mexico in 2002, and three state
convictions for armed robbery in New Mexico District Court in 2003. [Doc. 1 at 2]. Defendant
contends that the state armed robbery convictions no longer qualify as crimes of violence
following the holding of Johnson v. United States, 135 S. Ct. 2551 (2015) (“Johnson 2015”). See
id. Therefore, Defendant contends that “post Johnson [2015] [Defendant’s] plea makes little
sense and, in fact, imposes an illegal sentence above the maximum authorized by law.” Id.
Specifically, Defendant contends that a conviction under New Mexico’s robbery statute, N.M.S.A.
§ 30-16-2, is not a crime of violence under the force clause because it does not require proof of the
use or threatened use of violent, physical force, and Defendant relies on Johnson v. United States,
559 U.S. 133, 140 (2010) (“Johnson 2010”), in which the Supreme Court held that the term
“physical force” in the ACCA’s force clause, § 924(e)(2)(B)(i), must be “strong physical force,”
“a substantial degree of force,” or “violent force -- that is, force capable of causing physical pain or
injury to another person.” See id. at 4-12. Defendant further contends that New Mexico armed
bank robbery does not qualify as a crime of violence under the ACCA’s force clause because
“[t]here is no requirement that the weapon be brandished or used in any fashion to enable the

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commission of the robbery,” and “[t]here is no requirement of a nexus between the simple robbery
and possession of the weapon.” Id. at 12-13. Therefore, Defendant asks the Court to vacate his
sentence and resentence him without the ACCA enhancement. See id. at 14.
In response, the Government contends that Defendant’s convictions for New Mexico
armed robbery satisfy the force requirements for an enhancement under the ACCA. See [Doc. 5
at 2-4]. The Government states that, while it concedes that New Mexico’s simple robbery statute
does not meet the force requirements of Johnson 2010, based on the Government’s contention that
armed robbery requires the use of a deadly weapon in the commission of a robbery, New Mexico’s
armed robbery statute does meet the Johnson 2010 violent force standard. See id. at 3-4.
In reply, Defendant contends that New Mexico’s armed robbery statute does not require
force sufficient to meet the standard in Johnson 2010 because “[i]n New Mexico, an accused may
be convicted of armed robbery by merely possessing a weapon during a robbery,” and does not
require the use of the weapon during the robbery. [Doc. 8 at 1]. Defendant relies on a holding by
a District Judge in this Court that New Mexico armed robbery does not satisfy the ACCA’s violent
felony definition. See id. at 2 (relying on United States v. King, No. CR-02-2092 MV, Doc. 84).
Defendant contends that, since a person can be convicted of armed robbery even when the accused
did not intend to use the weapon, or when the accused did not use the weapon or even make the
victim aware of the weapon, the New Mexico armed robbery statute does not satisfy the ACCA’s
force clause. See id. at 3-4.
Discussion
Under the ACCA, an individual who violates § 922(g) (e.g., being a felon in possession of
a firearm or ammunition), and who has “three previous convictions . . . for a violent felony or a

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serious drug offense,” will receive a mandatory, minimum 15-year sentence. 18 U.S.C. § 924(e).
The statute defines the term “violent felony” as:
[A]ny crime punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an adult,
that-(i)
has as an element the use, attempted use, or
threatened use of physical force against the person of another; or
(ii)
is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another . . . .
18 U.S.C. § 924(e)(2)(B)(i)-(ii) (emphasis added). The emphasized clause is referred to as the
“residual clause,” and in Johnson 2015 the Supreme Court held that the residual clause “denies fair
notice to defendants and invites arbitrary enforcement by judges,” and, therefore, violates the due
process clause of the Constitution. Johnson 2015, 135 S.Ct. at 2557.
Now that the residual clause has been found to be unconstitutional, the Court must
determine whether Defendant’s prior convictions supporting his ACCA-enhanced sentence satisfy
the definition of “violent felony” under the remaining clauses of the ACCA. Since Defendant’s
convictions for armed robbery are not enumerated offenses under § 924(e)(2)(B)(ii), the Court
must consider whether they fall under the “force” clause under § 924(e)(2)(B)(i). In Johnson v.
United States, 559 U.S. 133, 140 (2010) (“Johnson 2010”), the Supreme Court held that the term
“physical force” in § 924(e)(2)(B)(i) must be “strong physical force,” “a substantial degree of
force,” or “violent force -- that is, force capable of causing physical pain or injury to another
person.” 559 U.S. at 140 (emphasis in original) (finding that Florida’s battery statute, which only
required intentional physical contact, no matter how slight, did not constitute “physical force”
under § 924(e)(2)(B)(i)). In addition, to determine whether a prior conviction qualifies under the

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ACCA, the court will ordinarily apply what is called the categorical approach, which looks only at
the elements of the statute under which the defendant was convicted. See Johnson 2015,
135 S.Ct. at 2557. However, in cases where a particular offense contains multiple elements listed
in the alternative, a sentencing court may employ a modified categorical approach and examine a
limited set of materials, including the terms of the charging document, to determine which
alternative elements formed the basis of the defendant’s conviction. See Mathis v. United States,
136 S.Ct. 2243, 2249 (2016). Therefore, in evaluating whether Defendant’s prior convictions for
New Mexico armed robbery constitute violent felonies under the force clause of the ACCA, the
Court must determine whether the statute prohibits conduct that “has as an element the use,
attempted use, or threatened use of” violent force against the person of another, as that force is
defined in Johnson 2010.
New Mexico’s robbery statute states:
Robbery consists of the theft of anything of value from the person of
another or from the immediate control of another, by use or
threatened use of force or violence.
Whoever commits robbery is guilty of a third degree felony.
Whoever commits robbery while armed with a deadly weapon is,
for the first offense, guilty of a second degree felony and, for second
and subsequent offenses, is guilty of a first degree felony.
N.M.S.A. § 30‐16‐2. Since this statute defines three separate crimes of robbery -- for first degree,
second degree, and third degree felonies -- by listing elements in the alternative, this is a divisible
statute, and the Court should employ the modified categorical approach to determine under which
element of the crime Defendant was convicted. See Mathis, 136 S. Ct. at 2249 and 2256
(explaining that “divisible” statutes are those that “list elements in the alternative, and thereby
define multiple crimes,” and later instructing that “[i]f statutory alternatives carry different

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punishments, then under Apprendi they must be elements”). Here, Defendant challenges his
convictions for New Mexico armed robbery.

See Presentence Investigation Report, dated

November 19, 2014, ¶42; see also [Doc. 1 at 2] (Defendant’s § 2255 motion stating that he is
challenging his sentence based on his convictions for New Mexico armed robbery). Therefore,
Defendant’s convictions required proof of the element of being “armed with a deadly weapon”
during commission of the offense. See N.M.S.A. § 30-16-2. The New Mexico Criminal Code
defines “deadly weapon” as “any firearm, whether loaded or unloaded; or any weapon which is
capable of producing death or great bodily harm.” See N.M.S.A. § 30‐1‐12(B). The same
statute sets forth the definition of “great bodily harm” as “an injury to the person which creates a
high probability of death; or which causes serious disfigurement; or which results in permanent or
protracted loss or impairment of the function of any member or organ of the body.” N.M.S.A.
§ 30‐1‐12(A).
The Court finds that Defendant’s convictions for New Mexico armed robbery satisfy the
definition of violent felony pursuant to Johnson 2010. Recently, the Tenth Circuit has found that
Colorado’s robbery statute, which is similar to New Mexico’s robbery statute, matches the level of
force required by Johnson 2010 because the Colorado Supreme Court has held that “force or fear is
the main element of the offense of robbery,” and that “the offense of robbery, whether committed
by actual force, or by constructive force, i.e., threats or intimidation, is a crime involving the use of
force or violence.” United States v. Harris, 844 F.3d 1260, 1269 (10th Cir. 2017) (citations,
internal quotation marks, and brackets omitted). Relying on Harris, a District Judge in this Court
found that New Mexico’s third degree (or simple) robbery statute also requires sufficient force
under Johnson 2010 to constitute a violent felony under the ACCA. See Garcia, No. 16-CIV-240
JB/LAM (Doc. 37 at 55-57). The Court in Garcia stated that it “does not think the Supreme Court

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of New Mexico disagrees that the force requisite to suffice robbery in New Mexico entails
physical, violent force or threat of such force.” Id. at 56. The Court in Garcia relied on the New
Mexico Supreme Court case of State v. Bernal, which construed the difference between larceny
and robbery in New Mexico, and found that, because “robbery generally carries a heavier
punishment than larceny, the robbery statute clearly is designed to protect citizens from violence.”
See id. (quoting Bernal, 2006-NMSC-050, ¶ 28, 140 N.M. 644, 146 P.3d 289). Therefore, it
appears that New Mexico’s armed robbery statute requires sufficient force under Johnson 2010 to
constitute a violent felony under the ACCA because the underlying robbery requires
Johnson 2010-level violent force.
Defendant contends that New Mexico armed robbery does not require the use of sufficient
force under the ACCA’s force clause because there is no requirement that the weapon be
brandished or used during the commission of the robbery. See [Doc. 1 at 12] and [Doc. 8 at 3-4].
The Court agrees with Defendant that, because New Mexico armed robbery only requires that the
robbery be committed while armed with a deadly weapon, and does not require that the weapon be
brandished or used in any way, “[t]he New Mexico armed robbery statute fails to require any more
force than the simple robbery statute.” [Doc. 1 at 13]. However, because the Court finds that the
holding in Harris indicates that New Mexico simple robbery is likely a violent felony under the
force clause, armed robbery is, therefore, also a violent felony because it is comprised of simple
robbery while armed with a deadly weapon. See, e.g., United States v. Serrano, No. 16-CIV-670
RB/WPL (Doc. 11 at 9) (“Because armed robbery is comprised of simple robbery plus the element
of a deadly weapon, armed robbery is also categorically a violent felony for purposes of the
ACCA.”).3

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Even if New Mexico’s robbery statute is not a violent felony under the ACCA, the presence of a deadly
weapon under New Mexico’s armed robbery statute may, in itself, satisfy Johnson 2010’s definition of physical force

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The Court notes that Defendant relies on the holding in United States v. King,
No. CR-02-2092 MV, No. CIV-16-501 MV/KK, in which the Court found that New Mexico’s
armed robbery statute does not satisfy Johnson 2010’s definition of violent force. See King,
No. CIV-16-501 MV/KK (Docs. 12, 15, and 18). The King decision first finds that New Mexico
third degree robbery is not a violent felony under Johnson 2010 and distinguishes New Mexico
state court cases interpreting New Mexico’s robbery statute from Colorado state court cases relied
on by the Tenth Circuit in Harris. See King, No. CIV-16-501 MV/KK (Doc. 18 at 10-17). The
decision then reasons that New Mexico armed robbery also does not meet Johnson 2010’s
definition of physical force because it criminalizes robberies committed while armed with a deadly
weapon, but does not require the use of the weapon. See id. at 20-28.
While the Court is sympathetic to both of these findings, the Court declines to follow the
holding in King because, as explained above, the Court finds that it is not clear that a conviction for
New Mexico robbery does not constitute a violent felony under the ACCA after the holding in
Harris. As noted by the Court in Garcia, the New Mexico Supreme Court in Bernal stated that
New Mexico’s robbery statute “clearly is designed to protect citizens from violence.” See
Garcia, No. 16-CIV-240 JB/LAM (Doc. 37 at 56) (quoting Bernal, 2006-NMSC-050, ¶ 28). The
Court in King distinguished the New Mexico Supreme Court’s holding in Bernal from the
Colorado Supreme Court decision relied on in Harris because a prior New Mexico Supreme Court
decision and both prior and subsequent New Mexico Court of Appeals decisions have only
required a slight degree of force for robbery convictions, and because the Bernal decision “made
no attempt to address the type or quantum of force this element requires, or to revisit” the prior
under the ACCA. Since Johnson 2010 defines physical force as “force capable of causing physical pain or injury to
another person,” then the use or threatened use of force or violence in taking something from the person or immediate
control of another, coupled with the presence of a deadly weapon, may satisfy this definition since a deadly weapon is
certainly capable of causing physical pain or injury. Johnson 2010, 559 U.S. at 140 (emphasis added). At the very
least, it increases the risk of Johnson 2010-level force.

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cases interpreting this statute. King, No. 16-CIV-501 MV/KK (Doc. 18 at 13). The Court,
however, finds that the Harris decision instead appears to support a finding that the holding in
Bernal is controlling as to whether a conviction for New Mexico robbery constitutes sufficient
force under Johnson 2010, regardless of a prior New Mexico Supreme Court decision or any
New Mexico Court of Appeals decisions. See Harris, 844 F.3d at 1269 (stating that “the starting
point” to answer whether or not the state statute meets the level of force required by Johnson 2010
“is the Colorado Supreme Court’s express word”). Accordingly, the Court finds that it is likely
that New Mexico robbery satisfies Johnson 2010’s definition of physical force and, therefore,
New Mexico armed robbery also satisfies this definition because it is comprised of robbery while
being armed with a deadly weapon. In addition, the Court notes that at least three other decisions
in this Court have found similarly. See United States v. Dean, No. CIV-16-289 WJ/LAM
(Doc. 15) (finding that New Mexico attempted armed robbery is a violent felony under the
ACCA’s force clause); United States v. Baker, No. CIV-16-715 PJK/GBW (Doc. 9) (finding that
New Mexico armed robbery is a violent felony under ACCA’s force clause); and United States v.
Serrano, No. CIV-16-670 RB/WPL (Doc. 11) (same).
Conclusion
IT IS THEREFORE RECOMMENDED, for the reasons stated above, that Defendant’s
Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 [Doc. 1] be DENIED and that this case
be DISMISSED with prejudice.
______________________________________
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE

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