Barela v. United States of America
ORDER by District Judge William P. Johnson ADOPTING Magistrate Judge's Findings and Recommended Disposition and dismissing this cause with prejudice. (mag)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
ORDER ADOPTING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
OF THE MAGISTRATE JUDGE
THIS MATTER comes before the Court upon the Proposed Findings and Recommended
Disposition (“PFRD”) entered by Magistrate Judge Lourdes A. Martinez on April 13, 2017. In
accordance with 28 U.S.C. § 636(b)(1)(B), Judge Martinez recommended denying Defendant’s
Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255, [Doc. No. 11], to which Defendant
timely objected on June 8, 2017.1 [Doc. No. 15]. Plaintiff did not file a response to Defendant’s
objections. Having conducted a de novo review of the specific portions of the PFRD to which
Defendant objects, the Court determines that it will overrule Defendant’s objections, adopt the
PFRD, and dismiss cause No. 16-cv-00588-WJ-KRS with prejudice.
Factual Background and Procedural History
On September 24, 2014, Defendant pled guilty to one count of being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g). [Cr. Doc. No. 35].
Although such a charge generally carries a maximum sentence of ten years, 18 U.S.C. § 924(b),
Defendant had previously been convicted of three or more violent felonies; namely, two
convictions for armed bank robbery in the United States District Court for the District of New
Defendant’s deadline was extended to June 12, 2017, following a successful Unopposed Motion to Extend Time to
File Objections. [Doc. 12].
Mexico, and three convictions for armed robbery in the Second Judicial District Court for the
State of New Mexico. These prior convictions made Defendant subject to the Armed Career
Criminal Act (“ACCA”) and its accompanying fifteen year mandatory minimum sentence. 18
U.S.C. § 924(e)(1). Consequently, Defendant agreed to an enhanced sentence totaling fifteen
years, and he was so sentenced on May 5, 2015. [Cr. Doc. No. 46].
Less than sixty days later, on June 26, 2015, the United States Supreme Court issued its
decision in Johnson v. U.S., 135 S.Ct. 2551 (2015), wherein it struck down the residual clause of
the ACCA as unconstitutional. This decision was the catalyst to Defendant’s Motion to Correct
Sentence Pursuant to 28 U.S.C. § 2255, filed narrowly within the one year limitations period on
June 15, 2016. [Doc. No. 1]. See 28 U.S.C. § 2255(f)(3) (explaining that motions under 28
U.S.C. § 2255 must be filed within one year of the date that the right asserted therein was
initially recognized by the Supreme Court).
In his motion, Defendant argues that in light of Johnson, his New Mexico armed robbery
convictions do not qualify as “violent felonies” under 18 U.S.C. Section 924(e)(2)(B), and he
moves the Court to correct his sentence accordingly.2 On April 13, 2017, Magistrate Judge
Martinez recommended that the Court deny Defendant’s motion, concluding that armed robbery
in New Mexico, as enumerated in N.M. Stat. Ann. § 30-16-2, satisfies the requirements of §
924(e)(2)(B)(i). [Doc. No. 11]. Defendant challenges this determination, arguing, in sum, that
the Magistrate Judge’s findings are based upon a misapplication of the law. [Doc. No. 15].
Standard of Review
Any portion of a magistrate judge’s disposition to which a party objects must be
determined, de novo, by the referring district judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P.
Defendant does not dispute that his two federal bank robbery convictions qualify as “violent felonies” for ACCA
72(b)(3). Here, Defendant objects to Magistrate Judge Martinez’s conclusion that an armed
robbery conviction under New Mexico’s robbery statute constitutes a “violent felony” for the
purposes of the ACCA.
This particular issue is shrouded in controversy as there is no
concurrence amongst our District Court judges and the Tenth Circuit has yet to consider New
Mexico’s robbery statute post-Johnson.
See, e.g., United States v. King, No. CV 16-501
MV/KK, 2017 WL 1506766 (D.N.M. Mar. 31, 2017) (holding that armed robbery in New
Mexico is not a “violent felony” under the ACCA); United States v. Garcia, No. CV 16-0240
JB/LAM, 2017 WL 2271421 (D.N.M. Jan. 31, 2017) (concluding that robbery constitutes a
“violent felony” as contemplated by the ACCA).
Pursuant to the ACCA, one who violates 18 U.S.C. § 922(g) and has three prior
convictions for violent felonies shall be imprisoned for a term no less than fifteen years. 18
U.S.C. § 924 (e)(1). The Act defines the term “violent felony,” in pertinent part, as “any crime
punishable by imprisonment for a term exceeding one year” that either:
“(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.”
U.S.C. § 924 (e)(2)(B). This two-part definition actually comprises three distinct clauses: (1)
the “force clause” which accounts for the entirety of § 924 (e)(2)(B)(i); (2) the “enumerated
offenses clause” which specifically identifies burglary, arson, extortion, and the use of
explosives as violent felonies, § 924 (e)(2)(B)(i)(ii); and (3) the now defunct “residual clause”
which, as its designation implies, provides the catchall language of “or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” Id.
In the aftermath of Johnson, 135 S.Ct. 2551, see supra p. 2, crimes not named in the
enumerated offenses clause—such as robbery and armed robbery—must fall under the force
clause to qualify as violent felonies for ACCA purposes. See id. at 2563 (holding the residual
clause of the ACCA unconstitutional while affirming the application of the Act to the remaining
clauses). Accordingly, to determine whether Defendant’s armed robbery conviction qualifies as
a violent felony, the Court must inquire as to whether the offense “has as an element the use,
attempted use, or threatened use of physical force against the person of another.” § 924
Although not defined in § 924 (e)(2)(B)(i), the United States Supreme Court has made
clear that the term “physical force,” as used in the context of the force clause, means “violent
force—that is, force capable of causing physical pain or injury to another person.” Johnson v.
United States, 559 U.S. 133, 140 (2010). The Johnson Court went on to differentiate bodily
injury from physical force, explaining that the latter “might consist…of only that degree of force
necessary to inflict pain—a slap in the face, for example.” Id. at 143.
To engage in the required inquiry, courts employ a categorical approach which looks to
the elements of the statute of conviction and asks whether the crime’s elements, alone, satisfy the
ACCA’s definition of violent felony. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). A
modified categorical approach is applied when the statute of conviction sets out one or more
elements of the offense in the alternative. In such a case, the statute is deemed “divisible” and a
court may examine certain documents from the record to determine under which elements of the
offense the defendant was convicted. United States v. Titties, 852 F.3d 1257, 1266 (10th Cir.
2017). The identified elements are then analyzed under the unmodified categorical framework.
In the case at bar, Defendant was convicted of armed robbery under N.M. Stat. Ann. §
30-16-2 which provides:
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.
As the statutory alternatives of robbery and armed robbery carry different punishments, the
statute is divisible and the modified categorical approach applies. 3 See Mathis, 136 S. Ct. 2243,
Citing Mathis, Defendant inaccurately argues that “the modified categorical approach is
never used when the elements of a stated offense, such as robbery, “are broader than those of a
listed generic offense.” 136 S.Ct. at 2251.” [Doc. 15, p. 20]. Mathis, however, explores a statute
which enumerates multiple means of committing the same element; the cited language has no
relevance to the application of the modified categorical approach. Mathis, 136 S. Ct. 2243, 2249
The Court notes that the modified categorical approach is generally used to analyze crimes that either fall within
the enumerated offenses clause or have otherwise generic titles such as “battery.” See Johnson, U.S. 133, 144
(2010) (discussing the use of the modified categorical approach when statutory phrases cover several generic
crimes). In the case at bar, however, the statutory basis of Defendant’s conviction—armed robbery—is clear, and
thus the modified categorical approach is likely superfluous, if not inapplicable. Even so, as the approach is
discussed in both the PFRD and Defendant’s objections to the PFRD, the Court will include it in its analysis.
Regardless of whether the Court employs the approach or not, its ultimate inquiry will be the same either way:
whether armed robbery “has as an element the use, attempted use, or threatened use of physical force against the
person of another.” § 924(e)(2)(B)(i).
(2016).4 Further, under the modified approach, the Court need not consider whether simple
robbery is a categorical match to the ACCA’s definition of violent felony. Rather, the Court
need only determine whether the offense of robbery while armed with a deadly weapon is such a
match. Titties, 852 F.3d 1257, 1268 (10th Cir. 2017) (stating that the modified categorical
approach is used to identify the relevant elements of the offense before applying the categorical
Similarly, Defendant relies upon United States v. Barraza-Ramos, 550 F.3d 1246 (10th
Cir. 2008), for the proposition that because armed robbery has simple robbery as an element, the
Court must first determine whether simple robbery is a categorical match to the definition of
violent felony. This, too, is misguided. In Barraza-Ramos, the Tenth Circuit was tasked with
determining whether one convicted of aggravated battery under Fla. Stat. § 784.045(1)(b), which
criminalizes the knowing battery of a pregnant victim, qualified as a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). In so doing, the Court was required to first consider whether
simple battery has “as an element the use, attempted use, or threatened use of physical force
against another person.”
Barraza-Ramos, 550 F.3d 1246, 1251 (10th Cir. 2008).
however, the underlying offense remained simple battery. The elevation to “aggravated” was a
result of who was battered, not how the victim was battered.
In contrast, armed robbery, like simple 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,” N.M. Stat. Ann. § 30-16-2, but it also includes the added requirement that the
robbery be accomplished while the perpetrator is armed with a deadly weapon. See N.M. UJI
14-1621. Accordingly, when comparing the offense of armed robbery to the force clause, the
A means versus element analysis is unnecessary as Defendant does not argue this point and, pursuant to Mathis,
136 S. Ct. 2243, 2256 (2016), N.M. Stat. Ann. § 30-16-2 is divisible on its face.
requisite physical force may be found in the elements the offense shares with simple robbery, the
addition of a deadly weapon, or both.
Regardless, the Court concludes that simple robbery “has as an element the use,
attempted use, or threatened use of physical force against the person of another,” § 924
(e)(2)(B)(i), and thus qualifies as a violent felony under the ACCA. Armed robbery, then, which
comprises all of the elements of simple robbery, plus the additional deadly weapon component,
is also a violent felony under the ACCA.
Importantly, in United States v. Nicholas, No. 16-3043, 2017 WL 1429788 (10th Cir.
Apr. 24, 2017), the Tenth Circuit recently held that a conviction for robbery under Kansas’ state
statute could not be used to enhance a sentence under the ACCA. Id. at *5. In so ruling, the
Court reasoned that because the Kansas Supreme Court had upheld a robbery conviction based
on de minimus physical force, the offense did not rise to the level of a violent felony. Id. Mere
minimal force would not sustain a robbery conviction under New Mexico law, and cases
suggesting otherwise have done so in dicta. See State v. Curley, 1997-NMCA-038, ¶ 4,123
N.M. 295, 939 P.2d 1103 (noting that New Mexico has cases which proffer that even a slight
amount of force is sufficient to constitute a robbery, but recognizing that such statements are
Further, a review of New Mexico case law elucidates that simple robbery requires a level
of force commensurate with the force clause found in § 924 (e)(2)(B)(i). See, e.g., State v.
Bernal, 2006-NMSC-050, ¶ 28, 140 N.M. 644, 146 P.3d 289 (emphasizing that robbery is “a
crime against a person,” and that “the robbery statute is designed to protect citizens from
violence”); State v. Clokey, 1976-NMSC-035, ¶ 3, 89 N.M. 453, 553 P.2d 1260 (“The 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”)
(emphasis added); State v. Lewis, 1993-NMCA-165, ¶15, 116 N.M. 849, 867 P.2d 1231
(declining to interpret the New Mexico robbery statute “to encompass situations where force is
used to retain property immediately after its nonviolent taking,” and reiterating that “force must
be the lever by which property is separated from the victim”) (emphasis added); State v. Sanchez,
1967-NMCA-009, ¶¶ 13-15, 78 N.M. 284, 430 P.2d 781 (finding that a fist against a victim’s
back is insufficient to show that the victim was compelled to part with his property and
explaining that “[t]he situation here is comparable to those pickpocket or purse snatching cases,
where even though there was some touching or jostling involved as the property was taken, the
crime was larceny because of the absence of force or fear”).
For the reasons stated above and those set forth in the PFRD, the Court finds that
Defendant’s prior New Mexico armed robbery conviction was properly used as a sentence
enhancement under the ACCA.
IT IS THEREFORE, ORDERED that Defendant’s Objections to the Magistrate’s
Proposed Findings and Recommended Disposition, filed June 8, 2017, [Doc. 15], are hereby
IT IS FURTHER ORDERED that Magistrate Judge Martinez’s Proposed Findings and
Recommended Disposition, filed April 13, 2017, [Doc. 14], are hereby adopted.
IT IS FURTHER ORDERED that Defendant’s Motion to Correct Sentence Pursuant to
28 U.S.C. § 2225, filed June 15, 2016, [Doc. 1], is hereby denied and cause No. 16-CV-00588-
WJ-KRS is hereby dismissed with prejudice.
WILLIAM P. JOHNSON
UNITED STATES DISTRICT JUDGE
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