Manzanares v. United States of America

Filing 21

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Stephan M. Vidmar to DENY 1 Mr. Manzanares's Motion to Correct Sentence. Objections to PF&RD are due by September 20, 2017. Add 3 days to the deadlin e 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).) (sg)

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

No.

12-cr-1563 WJ
16-cv-0599 WJ/SMV

ARCHIE MANZANARES,
Defendant.
MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before me on Defendant Archie Manzanares’s Motion to Correct
Sentence Pursuant to 28 U.S.C. § 2255, filed June 15, 2016. [CR Doc. 35; CV Doc. 1]. The
United States responded on November 19, 2016.1 [CR Doc. 42; CV Doc. 10]. Manzanares
replied on January 13, 2017. [CR Doc. 51; CV Doc. 19]. The Honorable William P. Johnson,
United States District Judge, referred this matter to me for analysis and a recommended
disposition. [CV Doc. 2]. Having considered the briefing, relevant portions of the underlying
criminal record, and relevant authorities, and being otherwise fully advised in the premises, I
find that Manzanares’s prior felony convictions for aggravated assault with a deadly weapon,
aggravated battery, and armed robbery qualify as violent felonies under the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(B), irrespective of the now-unconstitutional residual clause.
I further find that the government did not waive its argument that the predicate offenses qualify

1

After the motion was filed, the United States filed an unopposed motion to stay briefing in the case pending the
Tenth Circuit’s resolution of United States v. Maldonado-Palma, which would address an issue in this case (whether
New Mexico’s aggravated assault statute was a qualifying predicate felony). [CV Doc. 5]. I granted the motion.
[CV Doc. 6]. On October 26, 2016, after the Tenth Circuit issued a decision in Maldonado-Palma, I lifted the stay
and directed the government to respond. [CV Doc. 9].

1

outside of the residual clause.

Therefore, he is not entitled to re-sentencing pursuant to

Johnson v. United States and Welch v. United States. I recommend that his motion be denied.
I. Background
On June 27, 2012, Manzanares was charged via indictment with being a felon in
possession of a firearm/ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)(1).
Presentence Report (“PSR”) at 4. On April 1, 2013, he was charged via information with
possession of heroin, in violation of 21 U.S.C. § 844(a). Id. He pleaded guilty to both charges
on April 1, 2013. Id. The plea bargain Manzanares negotiated with the government hinged on
his status as an armed career criminal pursuant to the Armed Career Criminal Act (“ACCA”). If
he was found to be an armed career criminal, the parties would agree to a sentence of 180
months, or 15 years. Id. If he was found not to be an armed career criminal, Manzanares would
be permitted to withdraw from the plea. Id.
United States Probation and Pretrial Services prepared his PSR.

It provided that

Manzanares qualified as an armed career criminal under the ACCA because he had at least three
prior convictions for violent felonies or serious drug offenses. Id. at 7. In applying the ACCA
enhancement, the PSR did not list which prior felony convictions constituted the “violent
felonies” or “serious drug offenses.” Id. Elsewhere in the PSR, however, Manzanares’s prior
felony convictions are listed. Id. at 5. Among them are aggravated assault with a deadly
weapon, aggravated battery, and armed robbery, all in New Mexico. Id. Likewise, the PSR lists
his entire criminal history in a separate section, though it does not indicate which of the offenses
were felonies (as opposed to misdemeanors) and which were relied on as predicate offenses in
applying the ACCA enhancement. See id. at 8–12.
2

With the armed career criminal enhancement, Manzanares’s offense level was 34. Id.
at 7. Based on a downward adjustment for acceptance of responsibility, his total offense level
was 31, with a criminal history category of VI and a guideline imprisonment range of 188–235
months. Id. at 8, 19. On July 2, 2013, the Court held a sentencing hearing. See [CR Doc. 33].
The parties did not object to the PSR. See id. at 3. The Court accepted the plea agreement and
the PSR’s designation of Manzanares as an armed career criminal under the ACCA. Id. at 5.
The Court sentenced him to 180 months’ imprisonment. Id. Manzanares did not appeal his
sentence. The instant case is his first motion under § 2255.
II. Motions under § 2255 and Johnson II
Pursuant to 28 U.S.C. § 2255(a), a “prisoner in custody” pursuant to a federal conviction
may “move the court . . . to vacate, set aside or correct the sentence” if it “was imposed in
violation of the Constitution or laws of the United States.”
In Johnson v. United States (“Johnson II”), 135 S. Ct. 2551, 2557 (2015), the
Supreme Court held that the so-called “residual clause” of the definition of “violent felony” in
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally
vague. The ACCA defined “violent felony” as follows:
any crime punishable by imprisonment for a term exceeding one
year . . . 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.
Id. (emphasis added). The closing words of this definition, italicized above, have come to be
known as the “residual clause.”
3

The Court explained that the residual clause left “grave uncertainty” about “deciding
what kind of conduct the ‘ordinary case’ of a crime involves.” Johnson II, 135 S. Ct. at 2557.
That is, the residual clause “denie[d] fair notice to defendants and invite[d] arbitrary enforcement
by judges” because it “tie[d] the judicial assessment of risk to a judicially imagined ‘ordinary
case’ of a crime, not to real-world facts or statutory elements.” Id. Second, the ACCA’s residual
clause left “uncertainty about how much risk it takes for a crime to qualify as a violent felony.”
Id. at 2558. By combining these two indeterminate inquiries, the Court held, “the residual clause
produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id. On
that ground it held the residual clause void for vagueness. Id.
Soon thereafter, the Court determined that the ruling in Johnson II was substantive (as
opposed to procedural) and, therefore, had “retroactive effect in cases on collateral review.”
Welch v. United States, 136 S. Ct. 1257, 1268 (2016). Accordingly, Welch opened the door for
individuals sentenced under the residual clause of the ACCA’s violent-felony definition to move
to vacate their sentences as unconstitutional under § 2255.
III. Manzanares’s § 2255 Motion
Manzanares has at least three prior felony convictions that were determined to qualify as
violent felonies under § 924(e)(2)(B) of the ACCA, triggering that provision’s sentencing
enhancement.2 See PSR at 5, 7; [CR Doc. 2] at 1. He now challenges the application of the
sentencing enhancement. Manzanares first raises a threshold issue. Neither the PSR nor the
Court expressly stated (1) which three of his prior felony convictions were the predicate offenses
2

There is a discrepancy as to the precise number of felony convictions he has: his PSR lists six, but his charging
document lists five. Compare PSR at 5, with [CR Doc. 2] at 1. The discrepancy is immaterial, however, because
the conviction not listed in the indictment is not one of the three on which the government relies for the ACCA
sentencing enhancement.

4

that justified application of the ACCA enhancement or (2) which clause of § 924(e)(2)(B) the
convictions fell under (i.e., the so-called “force clause,” the “enumerated clause,” or the “residual
clause”). [Doc. 1]3 at 6–9; [Doc. 19] at 13–14. Because the government failed to object to the
PSR or the Court’s adoption of the ACCA enhancement at sentencing, Manzanares contends that
it has waived the right to now argue that certain of his prior convictions qualified as violent
felonies under the clauses that remain intact in § 924(e)(2)(B) in the wake of Johnson II.
Manzanares maintains that it was never clear “which, if any,” of his prior convictions qualified
as violent felonies. [Doc. 1] at 8. He argues it would be “fundamentally unfair” to permit the
government to “swap in” convictions it now believes are violent felonies notwithstanding the
holding of Johnson II and the unconstitutional residual clause. Id. at 7, 9.
In the alternative, Manzanares contends that his prior convictions do not qualify as
violent felonies under the remaining clauses of § 924(e)(2)(B). He identifies three of his prior
New Mexico convictions: aggravated assault with a deadly weapon, aggravated battery, and
armed robbery.4 He argues that none of the offenses requires the degree of physical force
necessary to satisfy the force clause of § 924(e)(2)(B), and none qualifies under the enumerated
clause. And, given that the residual clause has been invalidated, he contends he does not have
the requisite predicate offenses and is therefore entitled to be resentenced.
The government contends, as an initial matter, that it did not waive the right to contest
that certain of Manzanares’s prior felony convictions qualify under the still-extant clauses of the

3

Unless specifically noted otherwise, citations to document numbers refer to the docket in the civil case, case
number 16-cv-0599 WJ/SMV.
4
Though, as Manzanares points out, the PSR never indicated which three of his prior convictions were the
qualifying felonies, the parties seem to agree that these are the three at issue. Furthermore, in a memorandum filed
after Manzanares filed the instant motion, the United States Probation Office identified these three prior convictions
as those that “meet the definition of violent felony, without the use of the residual clause.” [Doc. 7].

5

ACCA’s definition of “violent felony,” even if they were not specified in the PSR or at
sentencing. [Doc. 10] at 14–15. The government argues that, because Manzanares did not
object to the PSR or the imposition of the armed career criminal enhancement, “the Court must
assume that it relied upon all” of Manzanares’s prior convictions. Id. at 15 (emphasis added).
The government contends that each of the three identified prior convictions qualifies under the
force clause of the ACCA. Id. at 3–14.
IV. The United States did not waive the right to argue that Manzanares’s prior felony
convictions qualified as violent felonies under the force clause of the ACCA.
Manzanares raises a threshold issue that I consider at the outset. In effect, he argues that
the government was obligated to object to the PSR’s and the Court’s failure to identify explicitly
which of his prior felony convictions supported his ACCA enhancement or which clause of
§ 924(e)(2)(B) (i.e., the force clause, enumerated clause, or residual clause) the convictions
qualified under. See [Doc. 1] at 6–7. Manzanares contends that, by failing to object at the time
of his sentencing, the government waived the right to identify at this later date certain of those
prior convictions and argue that they still qualify as ACCA predicate offenses in the wake of
Johnson II. Manzanares contends it would be “fundamentally unfair” to allow the government to
“swap out unidentified ACCA predicate offenses” on collateral review of his ACCA
enhancement.

I find that the government has not waived these arguments, and all of

Manzanares’s prior qualifying offenses constitute the “universe of convictions” that may be
considered in determining whether he is entitled to relief.
As Manzanares points out, the government bears the burden of proving by a
preponderance of the evidence that a sentencing enhancement is appropriate. United States v.
Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012). The PSR in this case identified six prior
6

felony convictions and, without stating which of the six were qualifying predicate offenses,
applied the ACCA enhancement. The Court accepted the finding that Manzanares was an armed
career criminal and accepted the plea agreement. There can be no doubt that Manzanares knew
the ACCA enhancement was being applied.

Indeed, his plea agreement was specifically

premised on a finding that he qualified as an armed career criminal; if the Probation Office or the
Court were to find otherwise, Manzanares was entitled to withdraw from the plea agreement.
Manzanares did not object to the PSR. Nor did he object at sentencing.
Although Manzanares now maintains that the government cannot rely on prior
convictions not specifically referenced as ACCA predicates in the PSR or at sentencing, he
provides no case law that actually supports his argument as applied to the facts of this case. He
relies on a single case from the Eleventh Circuit in support of his position. See [Doc. 1] at 7
(citing McCarthan v. Warden, 811 F.3d 1237 (11th Cir. 2016), rev’d en banc on other grounds
sub nom. McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc., 851 F.3d 1076 (2017)). In
McCarthan, the Eleventh Circuit was tasked with determining the “universe of convictions” it
could consider in determining, on the defendant’s § 2241 motion, whether the ACCA
enhancement was appropriate. 811 F.3d at 1253–54. As in the present case, neither the PSR nor
the sentencing court explicitly identified which ones qualified as ACCA predicates. Id. at 1242.
Neither the government nor the defendant had objected to the failure to specifically identify the
qualifying offenses. Id. On review, the court noted that, “[i]n general, both the PSR and the
sentencing court should specifically identify which of a defendant’s prior convictions qualify” as
ACCA predicates. Id. at 1253. A defendant is “entitled to know the specific convictions on
which an ACCA enhancement is recommended and imposed.” Id. “To hold otherwise would
7

raise serious due-process concerns.” Id. The court went on to hold, however, that the defendant
had “forfeited any objection to the sentencing court’s failure to identify the specific convictions
supporting his ACCA enhancement” by failing to object to the PSR, failing to object at his
sentencing hearing, and failing to raise the issue in his first § 2255 petition. Id. at 1253–54. The
court concluded that it “must, therefore, assume that the district court relied on all of [the
defendant’s] ACCA-qualifying convictions in imposing” his ACCA enhancement. Id. at 1254.
To be sure, McCarthan states that a defendant is entitled to know which of his prior
convictions serve as qualifying offenses for purposes of the ACCA enhancement. But it also
puts the onus on the defendant, not the government, to object to the PSR or at sentencing where
the ACCA enhancement is applied and the qualifying prior convictions are not expressly
identified.5 And, where there is no such objection, the reviewing court may presume that the

5

The court in McCarthan did discuss, in a footnote, the circumstances under which the government’s failure to
object to the PSR or at sentencing would constitute waiver. 811 F.3d at 1250 n.8. The court stated the following:
The government bears the burden of objecting to a district court’s decision not
to rely on certain of a defendant’s ACCA-qualifying convictions at sentencing to
impose an ACCA enhancement. If the government fails to object to the district
court’s decision to rely on fewer than all ACCA-qualifying convictions, it
waives any argument that a sentencing court’s imposition of an ACCA
enhancement is justified on the basis of an ACCA-qualifying conviction that the
district court could have, but did not, rely on at sentencing. In other words, the
government may not substitute a new predicate offense for an invalid predicate
offense for the first time on appeal where it failed to object to the sentencing
court’s decision not to rely on the new predicate offense at sentencing.
Similarly, we will not permit the government to swap out such unidentified
ACCA predicate offenses in a petitioner’s collateral attack on his ACCA
enhancement.
Id. (internal citations omitted). Manzanares cites to this language in support of his position, but it is inapposite to
the facts of this case. The foregoing analysis refers to circumstances where the PSR and the sentencing court have
identified some (but not all) of a defendant’s prior convictions as predicate offenses for purposes of the ACCA
enhancement. In such a case, McCarthan provides that the government must object if it believes that other,
additional prior convictions outside of those identified by the PSR or court are qualifying predicate offenses. Failure
to object in such circumstances constitutes waiver of the right to argue later that the additional prior convictions are
qualifying ACCA predicates. But that is not the factual landscape of the present case. Here, no prior offenses were
specifically deemed ACCA predicates. By the same token, no prior qualifying offenses were specifically excluded
from that designation. In such a circumstance, and where the defendant does not object, the court must assume that

8

sentencing court relied on all ACCA-qualifying convictions.

McCarthan contravenes

Manzanares’s waiver argument.
A recent decision from this District further compels my finding that the government has
not waived the right to rely on Manzanares’s prior convictions. See United States v. Garcia,
No. 16-cv-0240 JB/LAM, 2017 WL 2271421, at *19–21 (D.N.M. Jan. 31, 2017). In that case,
the defendant contended the government had waived the right to argue on collateral review that
robbery was a qualifying violent felony, because the PSR failed to include robbery as one of the
three predicate offenses that gave rise to the ACCA enhancement and the government did not
object. Id. at 19. The court disagreed. Though the robbery conviction was not listed in the
ACCA section of the PSR, it was included in the PSR’s list of his prior convictions, and the
sentencing judge relied on the PSR in its entirety. For that and other reasons specific to that
case,6 the government had not waived its argument. The court also found that the defendant had
not waived his argument by failing to object to the PSR or at sentencing. Ultimately, “even if
[the defendant] did not have reason to object at the time of sentencing, and did not object, these
issues . . . are irrelevant.

There is no dispute that he has a robbery conviction, and the

conviction’s existence cannot be waived. The Court can consider it. It does not disappear.
What [the sentencing judge] did with it, or did not do with it, ten years ago is irrelevant.” Id.
at 21. Garcia thus stands for the proposition that a party’s failure to object to the inclusion or

all prior qualifying convictions were relied on for the ACCA enhancement. See id. at 1254. The government had no
reason to object, and it was not obligated to do so. This analysis is inapplicable here.
6
Several other facts led the court to this conclusion: the government had filed notice of its intent to seek the ACCA
enhancement and had included the robbery conviction in the notice; the sentencing judge referred to the defendant’s
“six prior convictions,” one of which was robbery; and the defendant acknowledged at sentencing that he had a prior
robbery conviction. 2017 WL 2271421, at *19–20.

9

exclusion of a prior conviction at sentencing does not foreclose consideration of that conviction
on collateral review.
The applicable “universe of convictions” in the present case consists of all
ACCA-qualifying prior felony convictions listed in Manzanares’s PSR. The government is not
foreclosed from arguing that any such convictions remain qualifying “violent felonies” even
absent the unconstitutional residual clause.
V. I will conduct harmless error review.
As noted above, the record is silent as to which clause or clauses under § 924(e)(2)(B) the
Court relied on at sentencing in finding that Manzanares had the requisite number of qualifying
ACCA offenses. Thus, it is simply not clear whether there was, in fact, constitutional error in
Manzanares’s sentencing. Courts have divided on the question of whether a defendant must
make a threshold showing that he was sentenced under the residual clause before his § 2255
claim may proceed.7 The government does not argue that Manzanares was required to make
such a showing. Instead, the government essentially makes a “harmless error” argument. That
is, the government argues that Manzanares is not entitled to resentencing because,
notwithstanding the now-invalided residual clause, his prior convictions still qualify as violent
felonies under the force clause. Any reliance on the residual clause at sentencing, therefore, was
harmless.

7

Compare, e.g., Garcia, 2017 WL 2271421, at *18 (“Garcia has proven by a preponderance of the evidence that
Judge Conway applied the ACCA enhancement, in part pursuant to the Residual Clause), with United States v. Pyle,
No. 16-cv-0846 JB/SCY, [Doc. 16] at 11 (D.N.M. Apr. 4, 2017) (“Defendant has established . . . that the sentencing
judge may have relied on the residual clause when he sentenced Defendant . . . . [I]n these circumstances, that is
enough.”), and United States v. Hamilton, 235 F. Supp. 3d 1229, 1234 (N.D. Okla. 2017) (“[W]here the record is
silent and a court could have relied on multiple clauses at the time of sentencing, a defendant need not show a
sentencing court ‘actually relied’ on the residual clause.”).

10

The harmless error analysis turns on whether a court harbors “grave doubt” about
whether the claimed error had a “substantial and injurious effect or influence” on the outcome.
O’Neal v. McAninch, 513 U.S. 432, 436 (1995); see also United States v. Rivera, 347 F.3d 850,
852 (10th Cir. 2003).8 Numerous courts have found that § 2255 petitions based on Johnson II
are subject to harmless error analysis. See, e.g., United States v. Mitchell, 653 F. App’x 639, 645
n.7 (10th Cir. 2016) (“[B]ecause [the defendant’s] prior conviction qualified [as a crime of
violence] under the still-valid [force] clause, any error was harmless because the outcome would
have been the same if the court explicitly applied that clause.”); Garcia, 2017 WL 2271421,
at *17–18 (applying harmless error review and noting that “[a] majority of courts hearing § 2255
petitions in this context” have done the same); United States v. Richardson, 2016 WL 6600242,
at *4 (D. Colo. Nov. 8, 2016) (applying harmless error review in Johnson II context); see also
United States v. Hicks, 2016 WL 5672949, at *3 (N.D. Cal. Oct. 3, 2016) (collecting cases). I
will conduct harmless error review.

That is, I will consider whether any reliance on the

now-invalidated residual clause was harmless because Manzanares’s prior felony convictions for
aggravated assault with a deadly weapon, aggravated battery, and armed robbery qualify under
the force clause of the ACCA.9

8

Manzanares contends a heightened standard of review should apply. He believes he is entitled to resentencing
unless the Court finds that any Johnson II error was “harmless beyond a reasonable doubt,” [Doc. 1] at 8, i.e., the
harmless error standard applicable to direct appeals. See United States v. Smith, 723 F.3d 510, 516–17 (4th Cir.
2013) (discussing the competing standards). While some circuits have applied the harmless-error-beyond-areasonable-doubt standard to § 2255 cases, see id. at 517, the Tenth Circuit applies the substantial-and-injuriouseffect-or-influence standard. See United States v. Dago, 441 F.3d 1238, 1246 (10th Cir. 2006). Manzanares seems
to concede as much, as he notes that he raises the issue “[t]o preserve [it] for review by the Tenth Circuit en banc or
the Supreme Court.” [Doc. 1] at 8. I am bound by and therefore follow the harmless error standard set out by the
Tenth Circuit.
9
The government does not contend that any of the prior convictions qualifies under the enumerated clause. The
only question, then, is whether they qualify under the force clause. See § 924(e)(2)(B).

11

VI. Manzanares’s predicate offenses qualify as violent felonies
under the force clause of the ACCA.
A. The Force Clause of § 924(e)(2)(B)
The “force clause” of § 924(e)(2)(B) provides that an underlying conviction is a violent
felony where it “has as an element the use, attempted use, or threatened use of physical force
against the person of another.” § 924(e)(2)(B)(i). To determine whether a prior conviction
qualifies as a violent felony under the force clause, courts compare § 924(e)(2)(B)(i) with the
elements of the underlying statute of conviction.
Specifically, courts must compare the force required for a conviction of the predicate
offense against the physical force requirement of § 924(e)(2)(B)(i). Courts must determine
whether the least culpable conduct criminalized by the underlying offense—e.g., the least
amount of force required to sustain a conviction for New Mexico aggravated assault with a
deadly weapon—meets the physical force requirement of the force clause. See Moncrieffe v.
Holder, 133 S. Ct. 1678, 1684 (2013) (“Because we examine what the state conviction
necessarily involved, not the facts underlying the case, we must presume that the conviction
rested upon [nothing] more than the least of th[e] acts criminalized, and then determine whether
even those acts are encompassed by [the force clause].” (last set of brackets added) (internal
quotation marks omitted)). This inquiry requires application of both federal and state law.
Federal law defines the meaning of the phrase “use, attempted use, or threatened use of physical
force” in § 924(e)(2)(B)(i). United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017). And
state law defines the substantive elements of the crime of conviction. Id.; United States v.
Rivera-Oros, 590 F.3d 1123, 1126 (10th Cir. 2009). In discerning the level of force that gives
rise to conviction under the predicate offense, there must be a “realistic probability, not a
12

theoretical possibility,” that the statute would apply to the conduct contemplated. Rivera-Oros,
590 F.3d at 1133 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
In undertaking this comparison, courts generally apply the “categorical approach.”
Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). That is, courts look only to the
statutory definition of the predicate offense, while ignoring the particular facts of the case. Id. If
the statute of conviction “sweeps more broadly” than the force clause (i.e., if conviction could
result without the use of “physical force,” as federal law defines that term), the prior conviction
cannot qualify as an ACCA predicate, irrespective of whether the defendant’s actual conduct in
committing the crime involved the use of physical force. See id.
Some statutes, however, have a more complicated structure and require a slightly
different approach. A single statute may be “divisible”—it may list elements in the alternative—
and thereby define multiple crimes. Id. at 2281. When a statute defines multiple crimes by
listing alternative elements, courts undertake the “modified categorical approach” to determine
which of the multiple alternative elements listed in the statute applied to convict the defendant.
Id.

Under the modified categorical approach, a sentencing court looks to the record of

conviction (for example, the indictment, jury instructions, or plea agreement and colloquy) to
determine what crime, with what elements, a defendant was convicted of. The court may then
compare the physical force required for conviction under that crime, as the categorical approach
commands, with the physical force requirement of the force clause. See id.
The Supreme Court has provided guidance for determining whether a statute is
indivisible or divisible and, thus, whether to implement the modified categorical approach first or
proceed directly to the categorical approach. Mathis v. United States, 136 S. Ct. 2243, 2256–57
13

(2016). The central question is whether the statute lists multiple elements disjunctively, thereby
creating multiple different crimes (i.e., a divisible statute, triggering the modified categorical
approach), or whether it enumerates various factual means of committing a single element (i.e.,
an indivisible statute, requiring the categorical approach). Id. at 2249–50. If a state court
decision “definitively answers the question,” then a sentencing judge “need only follow what it
says.” Id. at 2256. Or, “the statute on its face may resolve the issue.” Id. If statutory
alternatives carry different punishments, then they must be elements (and, thus, the statute
divisible, triggering the modified categorical approach). Id. (citing Apprendi v. New Jersey, 530
U.S. 466 (2000)). “Conversely, if a statutory list is drafted to offer ‘illustrative examples,’ then
it includes only a crime’s means of commission.” Id.
B. Manzanares’s Prior Convictions
In Johnson v. United States (“Johnson I”), 559 U.S. 133, 138–40 (2010), the Supreme
Court interpreted “physical force” to mean “violent force—that is, force capable of causing
physical pain or injury to another person.” Id. at 140. The Court offered this interpretation in
the course of holding that the force required for conviction under a state battery statute—“any
intentional physical contact, no matter how slight”—was less than the ACCA’s physical force
requirement. Id. at 138 (internal quotation marks omitted). In other words, “physical force”
under the force clause means more than de minimis touching. See Harris, 844 F.3d at 1264–65
(“It is important to keep in mind why it was necessary for the Court [in Johnson I] to use the
language” of “violent force” and “strong physical force”—namely, because the Court “was
rejecting the government’s argument that physical force means . . . . even the slightest offensive
touching.” (internal quotation marks omitted)).

14

I consider below whether each of Manzanares’s prior convictions for New Mexico
aggravated assault with a deadly weapon, aggravated battery, and armed robbery requires the
degree of force necessary to satisfy the “physical force” requirement of § 924(e)(2)(B)(i).
1. Aggravated Assault with a Deadly Weapon
Manzanares was convicted of aggravated assault, NMSA 1978, § 30-3-2. That statute
provides:
Aggravated assault consists of either:
A. unlawfully assaulting or striking at another with a deadly
weapon;
B. committing assault by threatening or menacing another while
wearing a mask, hood, robe or other covering upon the face, head
or body, or while disguised in any manner, so as to conceal
identity; or
C. willfully and intentionally assaulting another with intent to
commit any felony.
§ 30-3-2. There is no dispute that Manzanares was convicted of aggravated assault with a deadly
weapon, § 30-3-2(A). See [Doc. 1] at 9; [Doc. 10] at 3; see also PSR at 5, 8. There are three
ways to commit the underlying simple assault in New Mexico: (1) attempted battery; (2) causing
another person to reasonably believe he is in danger of receiving an immediate battery
(“apprehension causing” assault); or (3) using insulting language toward another. NMSA 1978,
§ 30-3-1.
Tenth Circuit precedent compels the result here.

In United States v. Ramon Silva,

608 F.3d 663, 670–71 (10th Cir. 2010), the Tenth Circuit held that “apprehension causing”
aggravated assault with a deadly weapon was a violent felony under the ACCA’s force clause.
The Tenth Circuit expounded on the holding of Ramon Silva in United States v.
15

Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016). It held that § 30-3-2(A), aggravated assault
with a deadly weapon, is categorically a “crime of violence” under the force clause of the
United States Sentencing Guidelines § 2L1.2, no matter which theory of the underlying simple
assault applied. Id. at 1250. The court first determined that the New Mexico aggravated assault
statute is divisible—it consists of three subsections setting out alternative elements. Id. at 1247.
Turning to the elements of aggravated assault with a deadly weapon, the court found that
commission of that crime requires the use (and not just the mere possession) of a deadly weapon
in carrying out the assault. Id. at 1250. In New Mexico, a deadly weapon is one that is “‘capable
of producing death or great bodily harm . . .; or any other weapon[] with which dangerous
wounds can be inflicted.’” Id. (first alteration in original) (quoting NMSA 1978, § 30-1-12(B)).
Employing such a weapon in an assault “necessarily threatens the use of physical force, i.e.,
‘force capable of causing physical pain or injury to another person.’” Id. (quoting Johnson I, 559
U.S. at 140). Therefore, the court concluded, New Mexico aggravated assault with a deadly
weapon is categorically a crime of violence. Id.
The holding of Maldonado-Palma applies in equal measure to the identically worded
force clause of the ACCA’s definition of violent felony. Interpretations of the force clause in the
Guidelines context are equally applicable in the ACCA context, and vice versa. See id. at 1248
(relying on interpretation of “physical force” in ACCA case to inform meaning of Guidelines
force clause); Ramon Silva, 608 F.3d at 671 (“Given the similarity in language between the
ACCA and [Guidelines], we have occasionally looked to precedent under one provision for
guidance under another.”); Mitchell, 653 F. App’x at 642 (“We have consistently applied the
same analysis to the career offender provision and the analogous provision of the ACCA where
16

the clauses are virtually identical.” (internal quotation marks omitted)).

In other words,

Maldonado-Palma compels a finding that New Mexico aggravated assault with a deadly weapon
qualifies as a violent felony under the force clause of the ACCA. Therefore, New Mexico’s
aggravated assault with a deadline weapon statute, § 30-3-2(A), qualifies as a violent felony
under the force clause of the ACCA, 18 U.S.C. § 924(e)(2)(B), irrespective of the
now-invalidated residual clause.
Manzanares urges that a recent decision of the New Mexico Court of Appeals, State v.
Branch, 2016-NMCA-071, 387 P.3d 250, undercuts the reasoning of Ramon Silva and
Maldonado-Palma and compels a different outcome. See [Doc. 19] at 1–5. In short, he argues
that, per the reasoning of Branch, assault in New Mexico does not require proof of the
defendant’s intent to assault the victim—only that the victim reasonably believed he or she was
in danger. Id. at 2. Because the Tenth Circuit’s decisions rested on the principle that the use of
physical force must be “intentional ‘against the person of another,’” they are at odds with
New Mexico case law interpreting its assault statute, and thus were wrongly decided. Id. at 4
(quoting Ramon Silva, 608 F.3d at 672). Whatever the merit of Manzanares’s argument,10 I am
bound by the Tenth Circuit’s decisions in Ramon Silva and Maldonado-Palma. Branch was
decided before Maldonado-Palma; it does not undermine the precedential value of that decision.
I need not consider Manzanares’s argument on this point any further. See United States v.
Miera, 2013 WL 6504297, at *18 (D.N.M. Nov. 22, 2013) (questioning the Tenth Circuit’s
opinion in Ramon Silva but concluding that the court “is not, however, free to disregard the

10

At least one decision of this District has considered, and rejected, arguments similar to Manzanares’s, finding that
Ramon Silva and Maldonado-Palma are not inconsistent with Branch. United States v. Sanchez, 16-cv-0659
JAP/GBW, [Doc. 20] at 22–24 (D.N.M. July 5, 2017).

17

majority’s conclusion that aggravated assault with a deadly weapon in New Mexico is a violent
felony” under the force clause of the ACCA).
2. Aggravated Battery
Manzanares was also convicted of aggravated battery, NMSA 1978, § 30-3-5. That
statute provides:
A. Aggravated battery consists of the unlawful touching or
application of force to the person of another with intent to injure
that person or another.
B. Whoever commits aggravated battery, inflicting an injury to the
person which is not likely to cause death or great bodily harm, but
does cause painful temporary disfigurement or temporary loss or
impairment of the functions of any member or organ of the body,
is guilty of a misdemeanor.
C. Whoever commits aggravated battery inflicting great bodily
harm or does so with a deadly weapon or does so in any manner
whereby great bodily harm or death can be inflicted is guilty of a
third degree felony.
§ 30-3-5.

The statute is divisible into its respective misdemeanor and felony subsections.

Subsection B defines misdemeanor aggravated battery, and subsection C defines felony
aggravated battery. As Mathis instructs, statutory alternatives carrying different penalties “must
be elements.” 136 S. Ct. at 2256 (citing Apprendi, 530 U.S. 466).11

11

Manzanares does not address the question of divisibility in his motion. See generally [Doc. 1]. In its response,
the government argues that the statute is divisible into its misdemeanor and felony subsections. [Doc. 10] at 8–10.
In reply, Manzanares contends that the government’s “lengthy discussion of the modified categorical approach is
unnecessary.” [Doc. 19] at 8. He goes on, “If the offense is not categorically a [violent felony], then the court does
not use the modified categorical approach to evaluate it. In other words, because the statue is overly broad and
indivisible as to the unlawful touch element, the modified categorical approach is not applied.” Id. Manzanares
appears to suggest that, because simple battery is a component of aggravated battery—no matter which subsection
the Court considers—the divisibility question is irrelevant, because simple battery does not require Johnson I-level
physical force. As discussed infra, his analysis is mistaken. The divisibility analysis necessarily precedes
comparison of the elements of the crime of conviction against the force clause. See Mathis, 136 S. Ct. at 2256
(characterizing the divisibility question (“elements or means?”) as the “threshold inquiry”).

18

Because I find the statute is divisible, I apply the modified categorical approach and
determine whether Manzanares was convicted under subsection B or subsection C. Id. at 2249
(describing the modified categorical approach). I find that he was convicted under subsection C,
the felony version of the statute. In this instance, the question of whether he was convicted
under subsection B or subsection C is a question of whether he was convicted of a misdemeanor
or a felony. See § 30-3-5. It is not clear to me whether Manzanares genuinely contests that he
was convicted of the felony, rather than the misdemeanor, version of aggravated battery. 12 To
the extent he does, and to the extent he has not waived the argument that his aggravated battery
conviction was not a felony conviction at all,13 I take judicial notice of the public record of his
conviction, which shows that he was convicted of felony aggravated battery, § 30-3-5(C).14
Having concluded that he was convicted of felony aggravated battery, I apply the
categorical approach and compare the elements of § 30-3-5(C) against the force clause of
§ 924(e)(2)(B). I find that the least culpable conduct under that statute necessarily involves the
use or threatened use of physical force—that is, “force capable of causing physical pain or injury
to another person.” Johnson I, 559 U.S. at 140.
Conviction under § 30-3-5(C) requires proof that the defendant committed a battery
(1) that inflicted great bodily harm, (2) with a deadly weapon, or (3) in a manner whereby great

12

Neither party submitted documentation of his prior conviction beyond the PSR. In a footnote in his reply,
Manzanares cites Tenth Circuit case law providing that “a court may not use [a PSR] to resolve a conviction’s
ambiguities.” [Doc. 19] at 8 n.3 (citing United States v. Hays, 526 F.3d 674, 678 (10th Cir. 2008)). He concludes
that “nothing in the record shows a jury found—or that Manzanares pleaded guilty to—any other requirement of a
predicate offense.” Id. While he does not concede that his conviction was for felony aggravated battery, neither
does he argue that the Court must assume his conviction was a misdemeanor, thereby unable to serve as a predicate
violent felony under § 924(e)(2)(B).
13
See McCarthan, 811 F.3d at 1253–54.
14
See New Mexico Court Case Lookup, Case Number Search for D-1329-CR-200500216,
https://caselookup.nmcourts.gov/caselookup/app (showing that Manzanares pleaded guilty to “AGGRAVATED
BATTERY (DEADLY WEAPON) – A THIRD DEGREE FELONY”).

19

bodily harm could be inflicted. § 30-3-5(C); see also UJI 14-322 NMRA; UJI 14-323 NMRA
(essential elements instructions for felony versions of aggravated battery). “Great bodily harm,”
under New Mexico law, is “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.” NMSA 1978, § 30-1-12(A).
A “deadly weapon” is “any firearm,” “any weapon which is capable of producing death or great
bodily harm,” or “any other weapons with which dangerous wounds can be inflicted.”
§ 30-1-12(B). Aggravated battery with a deadly weapon requires the use of the deadly weapon.
UJI 14-322 (instructing that aggravated battery with a deadly weapon requires proof that the
defendant “touched or applied force to” the victim with a deadly weapon and that “[t]he
defendant used” a deadly weapon (emphasis added)).
The Tenth Circuit has not specifically addressed whether New Mexico felony aggravated
battery satisfies the force requirement set out in Johnson I. However, it has evaluated similar
statutes. In United States v. Treto-Martinez, the Tenth Circuit held that Kansas aggravated
battery satisfied the force clause of the Guidelines.15 421 F.3d 1156, 1160 (10th Cir. 2005).
15

Although Treto-Martinez pre-dates Johnson I, the court in Treto-Martinez did not apply a lesser standard of
“physical force” in interpreting the force clause. Compare Treto-Martinez, 421 F.3d at 1159 (holding that
“[a]lthough not all physical contact performed in a rude, insulting[,] or angry manner would rise to the level of
physical force,” (i.e., more than mere touching is required), such contact would satisfy the force clause if carried out
with a deadly weapon), with Johnson I, 559 U.S. at 140 (requiring more than mere touching to satisfy the force
clause). Therefore, it does not appear that the precedential value of Treto-Martinez was diminished by Johnson I.
In fact, it appears that Johnson I resolved a split among the circuits as to whether mere touching could satisfy the
force clause—essentially affirming the Tenth Circuit’s approach. See generally Hays, 526 F.3d at 677–81
(discussing the circuit split); id. at 684 n.4 (Ebel, J., dissenting) (also discussing the circuit split). The
Supreme Court held that mere touching was not enough, which is consistent with earlier Tenth Circuit decisions.
See, e.g., United States v. Venegas-Ornelas, 348 F.3d 1273, 1275 (10th Cir. 2003) (“Force, as used in the definition
of a crime of violence, is synonymous with destructive violent force.”); Hays, 526 F.3d at 681 (“[P]hysical force in a
crime of violence[] must, from a legal perspective, entail more than mere contact. Otherwise, de minimis touchings
could [suffice].” (internal quotation marks omitted)). Accordingly, it does not appear to me that Johnson I
necessarily changed the law in the Tenth Circuit nor made stale our circuit court’s earlier decisions on the scope of
the force clause.

20

Conviction under one prong of the statute required “physical contact . . . whereby great bodily
harm, disfigurement or death can be inflicted.” Id. “It is clear,” the court held, “that a violation
of this provision” suffices to satisfy the force clause. Id. “No matter what the instrumentality of
the contact, if the statute is violated by contact that can inflict great bodily harm, disfigurement
or death, it seems clear that, at the very least, the statute contains as an element the “threatened
use of physical force.” Id.
Recent Tenth Circuit cases interpreting assault statutes are also instructive.

In

Maldonado-Palma, as noted supra, the court held that New Mexico aggravated assault with a
deadly weapon was categorically a crime of violence under the Guidelines’ force clause.
839 F.3d at 1249. The use of a weapon “capable of producing death or great bodily harm”
“necessarily threatens the use of physical force.” Id. at 1250. Similarly, in Ramon Silva, the
court held that New Mexico’s “apprehension causing” aggravated assault statute qualified under
the force clause of the ACCA. 608 F.3d at 670–71. Even though the assault statute could be
violated without any actual physical contact or violence perpetrated against the victim, the
conduct it criminalized “‘could always lead to . . . substantial and violent contact, and thus . . .
would always include as an element’ the threatened use of violent force. Id. at 672 (quoting
Treto-Martinez, 421 F.3d at 1160); see also United States v. Taylor, 843 F.3d 1215, 1224
(10th Cir. 2016) (noting that “regardless of the type of dangerous weapon that is employed by a
particular defendant, the use of a dangerous weapon during an assault or battery always
constitutes a sufficient threat of force to satisfy the [force] clause” (internal quotation marks
omitted)).

21

Based on these cases, I find that New Mexico felony aggravated battery requires the use
of Johnson I-level physical force. Conviction under this provision requires more than mere
de minimis force (i.e., physical touching, no matter how slight). It requires the intent to injure
and commission in a manner whereby great bodily harm is inflicted, where death or great bodily
harm could be inflicted, or where a deadly weapon is used. See § 30-3-5(C). A battery
committed in a manner that could inflict great bodily harm necessarily requires “force capable of
causing physical pain or injury.” Johnson I, 559 U.S. at 140; Treto-Martinez, 421 F.3d at 1160.
Likewise, given the holding of Maldonado-Palma and its predecessors, a battery committed with
the use of a deadly weapon “always constitutes a sufficient threat of force to satisfy the [force]
clause.”

Taylor, 843 F.3d at 1224 (internal quotation marks omitted).

The additional

requirements of felony aggravated battery—essentially, that serious bodily injury did or could
have occurred—put the statute squarely in the range of conduct that the Tenth Circuit has found
to satisfy the physical force requirement of the force clause. Several other decisions of this
District to decide the issue have reached the same conclusion.16
Manzanares’s arguments to the contrary are unpersuasive. He argues that conviction
under the aggravated battery statute can result from mere “unlawful touching, however slight.”
[Doc. 19] at 6; see also [Doc. 1] at 22–23. Because “[s]imple battery is a necessary element of
aggravated battery,” he contends, any unlawful touch will satisfy the battery element, and no
more force is required for conviction of the greater offense of aggravated battery. [Doc. 19] at 5.
But Manzanares cites no case that supports his argument. His citations to cases analyzing
16

E.g., United States v. Pacheco, 16-cv-0341 WJ/CG, [Doc. 15] at 8–9 (D.N.M. Aug. 1, 2017); United States v.
Sanchez, 16-cv-0659 JAP/GBW, [Doc. 20] at 24–27 (D.N.M. July 5, 2017); United States v. Dallas, 16-cv-0676
MV/LF, [Doc. 15] at 6–10 (D.N.M. May 3, 2017); United States v. Sedillo, 16-cv-0426 MCA/LAM, [Doc. 18]
at 13–16 (D.N.M. Mar. 6, 2017); United States v. Vasquez, 16-cv-0678 JAP/WPL, [Doc. 11] at 8 (D.N.M. Jan. 10,
2017).

22

“simple” battery, rather than felony aggravated battery, are inapposite. See State v. Ortega,
1992-NMCA-003, 113 N.M. 437; State v. Seal, 1966-NMSC-123, 76 N.M. 461; State v. Hill,
2001-NMCA-094, 131 N.M. 195. And the cases he cites that do evaluate the aggravated battery
statute indisputably involve the use of physical force. See State v. Traeger, 2001-NMSC-022,
130 N.M. 618 (defendant used baseball bat to beat victim). Manzanares ignores the plain
language of the statute, which explicitly requires more than mere touching. He cites no authority
suggesting otherwise.
Manzanares also cites to two Tenth Circuit cases he believes control the outcome here.
See [Doc. 1] at 23–24; [Doc. 19] at 7–9. But both cases discuss statutes that are readily
distinguishable from the statute at issue. In United States v. Hays, the court held that a Wyoming
battery statute did not satisfy the force clause. 526 F.3d 674. However, the underlying statute
could be violated by “unlawfully touching someone in a rude, insolent or angry manner.” Id. at
678. Because that provision could be violated by “any contact, however slight,” the court held
that it did not satisfy the force clause. Likewise, in United States v. Barraza-Ramos, the Tenth
Circuit held that a Florida aggravated battery statute, which criminalized battery against pregnant
women, did not satisfy the force clause. 550 F.3d 1246, 1250–51 (10th Cir. 2008). The statute
could be violated by merely “touching” a pregnant woman against her will. Id. at 1249. Neither
Hays nor Barraza-Ramos contemplated a battery statute with the additional requirements of the
intent to injure and commission (1) in a manner that causes great bodily harm, (2) with the use of
a deadly weapon, or (3) in a manner whereby great bodily harm could be inflicted. These
additional requirements distinguish New Mexico aggravated battery from the statutes in those

23

cases. New Mexico felony aggravated battery, § 30-3-5(C), qualifies as a violent felony under
the force clause of the ACCA.
3. Armed Robbery
Finally, I consider Manzanares’s prior conviction for armed robbery. The New Mexico
armed robbery statute 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.
§ 30-16-2. The statute is divisible into simple robbery, a third degree felony, and armed robbery,
a first degree felony.17 See id.; Mathis, 136 S. Ct. at 2256 (statutory alternatives carry different
penalties “must be elements” (citing Apprendi, 530 U.S. at 466)). There is no dispute that
Manzanares was convicted of armed robbery rather than simple robbery. See [Doc. 1] at 21–22;
[Doc. 10] at 13–14; see also PSR at 5, 10. Therefore, I consider whether New Mexico armed
robbery requires the degree of physical force necessary to satisfy the force clause of the ACCA.
I find that it does. Though the parties dispute whether the additional requirement of
being armed with a deadly weapon during the commission of the robbery necessitates the use of
force, I find that New Mexico robbery necessarily requires the use of Johnson I-level physical
force irrespective of whether the defendant was armed.

17

Neither party explicitly argues the divisibility or indivisibility of the statute.

24

The New Mexico robbery statute contains a force element: it requires that the theft be
committed “by use or threatened use of force or violence.” NMSA 1978, § 30-16-2. Indeed,
“[t]he use of force, violence, or intimidation is an essential element of robbery.” State v. Lewis,
1993-NMCA-165, ¶ 8, 116 N.M. 849. The force must be exercised against the person of
another. State v. Bernal, 2006-NMSC-050, ¶ 28, 140 N.M. 644 (“Robbery is not merely a
property crime, but a crime against a person.”). Further, courts must consider the degree of force
employed in the commission of the theft in evaluating conviction under the statute. State v.
Clokey, 1976-NMSC-035, ¶ 3, 89 N.M. 453 (“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.”).
New Mexico robbery requires more than mere de minimis force. The reasoning of two
New Mexico state court decisions distinguishing robbery from the less serious crime of larceny
makes this clear. In State v. Curley, the New Mexico Court of Appeals held that the defendant
was entitled to the lesser included offense of larceny, because a jury could have found that he
took a purse by surprise from a victim who was not resisting. 1997 NMCA-038, ¶ 18, 123 N.M.
295. The court held that “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.” Id. ¶ 6.
Theft constitutes robbery only where it is accomplished using “force necessary to overcome any
resistance.” Id. ¶ 18.
The force element of New Mexico robbery rests on the principle that robbery is not
merely a property crime; it is a crime against a person. This distinguishes it from larceny. Id.
¶ 11. Therefore, courts should construe the “resistance of attachment” requirement “in light of
25

the idea that robbery is an offense against the person, and something about that offense should
reflect the increased danger to the person that robbery involves over the offense of larceny.” Id.
In determining whether the force requirement of robbery has been satisfied, courts should not
focus exclusively on the “[s]ubtle differences in the amount of force used.” Id. ¶ 13. The
“reason for the distinction” between robbery and larceny—and the increased punishment—“is
the increased danger to the person.” Id. Therefore, “an increase in force that makes the victim
aware that her body is resisting could lead to the dangers that the crime of robbery was designed
to alleviate.” Id.
The reasoning of the Supreme Court of New Mexico in State v. Bernal is also instructive.
2006-NMSC-050. In that case, the Court held that the Double Jeopardy Clause is not offended
by allowing, for a single act, separate charges for each victim “against whom violence or the
threat of violence is separately used.” Id. ¶¶ 27–28. As the Court found, “robbery is a crime
designed to punish the use of violence” and “to protect citizens from violence.” Id. In other
words, the force used to commit a robbery is that which puts the victim on notice of the theft and
creates the possibility of a dangerous and violent confrontation. The rationale behind the force
element of New Mexico robbery tracks that identified by the Tenth Circuit in defining a violent
felony in Ramon Silva—the prohibited conduct constitutes a violent felony because it “could
always lead to . . . substantial and violent contact.” 608 F.3d at 672.
A recent decision of the Tenth Circuit, United States v. Harris, 844 F.3d 1260 (10th Cir.
2017), further compels my finding here. In Harris, the Tenth Circuit held that Colorado’s
robbery statute qualified as a violent felony under the force clause of the ACCA. Id. at 1262. In
evaluating the ACCA’s physical force requirement, the court found, “[i]t is important to keep in

26

mind why it was necessary for the Court [in Johnson I] to use the language” of “‘violent force’”
and “‘strong physical force.’” Id. at 1264–65 (quoting Johnson I, 559 U.S. at 140–41). The
Supreme Court, it noted, was “rejecting the government’s argument that physical force means
‘force’ known in common law battery parlance”—that is, “even the slightest offensive touching.”
Id. at 1265.

Though Johnson I described the force required to satisfy the physical force

requirement as “‘a substantial degree of force,’” or “‘strong physical force,’” it did so in service
of differentiating between mere de minimis force (the force required to violate the state law at
issue in that case) and the greater degree of force required to satisfy the force clause. Id.
Turning to its evaluation of the force element of the Colorado robbery statute, the Harris
court weighed heavily the language of a recent decision of the Colorado Supreme Court that
discussed the distinction between larceny and robbery.
Borghesi, 66 P.3d 93, 99–100 (Colo. 2003)).

Id. at 1266–67 (citing People v.

The additional requirement of violence—of

“circumstances involving a danger to the person as well as a danger to property”—distinguishes
Colorado robbery from the “property crime of larceny.” Id. (internal quotation marks omitted).
The Harris court further found that pre-Borghesi case law in the Colorado appellate courts, to the
extent the cases upheld robbery convictions on less-than-violent force, was not controlling. Id.
Based on its analysis, the Tenth Circuit also declined to follow several other circuits that have
concluded that robbery does not meet the physical force requirement. Id. at 1267–68.
Harris illuminates the requisite analysis and reassures the result in the present case. The
rationale of the Colorado court distinguishing larceny from robbery, on which the Tenth Circuit
relied, mirrors that of the New Mexico courts in Curley and Bernal. Robbery is the more serious
offense because, by requiring a taking from the person of another and requiring force sufficient
27

to put the victim on notice, it necessarily puts the victim at risk of a dangerous confrontation with
the thief. The crime of robbery in New Mexico, as in Colorado, is designed to “punish the use of
violence” and “protect citizens from violence.” Bernal, 2006-NMSC-050, ¶¶ 27–28. True, the
Colorado Supreme Court has supplied more explicit language on which the Tenth Circuit could
base its interpretation of Colorado robbery’s force element. Though Colorado robbery is perhaps
the easier case, Harris provides additional support for the outcome in this case. New Mexico
robbery qualifies as a violent felony under the force clause of the ACCA.

Several other

decisions of this District have reached the same conclusion.18
Manzanares’s arguments to the contrary are not persuasive.

He cites to state

jurisprudence suggesting that “[t]he amount or degree of force is not the determinative factor”
and “[t]he amount of force is immaterial.” [Doc. 1] at 14–15 (quoting State v. Martinez,
1973-NMCA-120, ¶ 4, 513 P.2d 402; UJI 14-1620 NMRA, committee commentary). However,
this language refers to the requirement that the force or violence be employed in the act of taking
away the property. “The use or threatened use of force . . . . ‘must be the lever by which the
thing of value is separated’ from the victim.” Martinez, 1973-NMCA-120, ¶ 4 (quoting State v.
Baca, 1971-NMCA-142, ¶ 5, 83 N.M. 184, 184). In Martinez, for example, the court did not
need to consider the force employed during a fight between the defendant and victim that
followed the theft in question because “the ripping of the [victim’s] jacket pocket in grabbing the
money, and knocking the victim against the railing, was a showing of sufficient use of force to

18

E.g., Garcia, 2017 WL 2271421, at *53–57; United States v. Serrano, 16-cv-0670 RB/WPL, [Doc. 16] at 4
(D.N.M. May 9, 2017); United States v. Dean, 16-cv-0289 WJ/LAM, [Doc. 17] at 6 (D.N.M. May 3, 2017); Rhoads
v. United States, 16-cv-0325 JCH/GBW, [Doc. 20] at 11 (D.N.M. Apr. 5, 2017); Hurtado v. United States, 16-cv0646 JAP/GJF, [Doc. 17] (D.N.M. Jan. 11, 2017). But see United States v. King, 16-cv-0501 MV/KK, [Doc. 18]
at 29 (D.N.M. Mar. 31, 2017) (finding that New Mexico armed robbery does not qualify as a violent felony under
the ACCA’s force clause).

28

sustain the conviction.” Id. ¶ 5. It is not that the court did not consider the degree of force used
by the defendant; rather, in stating that the degree of force was not the “determinative factor,” the
court meant that it must evaluate when the force or violence was deployed by the defendant. Id.
¶¶ 4–5; see also Lewis, 1993-NMCA-165, ¶ 12 (the defendant’s use of a weapon to “hold [the]
victim at bay as he escaped” was not sufficient to satisfy the force requirement of the
New Mexico robbery statute because the money itself had been “removed and separated from his
person by stealth”).
He cites Curley for the proposition that snatching an article of clothing, such as a pin,
with just the amount of force required to remove it constitutes robbery; he subsequently cites the
same case as holding that shoving a victim’s shoulder suffices for robbery. [Doc. 1] at 15 (citing
Curley, 1997-NMCA-038). The thrust of the holding in Curley is described supra; in finding
that the defendant was entitled to an instruction on larceny, the court held that the force
requirement hinged on the degree of force required to overcome resistance. 1997-NMCA-038,
¶ 18. Further, the court in Curley explicitly stated that applying only the force necessary to
remove the item does not satisfy the force requirement of New Mexico robbery. Id. ¶ 6.
Manzanares also cites a number of cases for the proposition that a pickpocket’s “jostling”
of a victim in order to divert the victim’s attention constitutes the force necessary to commit
robbery. [Doc. 1] at 15. In fact, jostling a victim to divert his or her attention runs contrary to
the definition of robbery that New Mexico courts set out in Curley and Bernal. As those cases
make clear, the distinguishing feature of robbery under New Mexico law—as opposed to mere
larceny—is the use of force necessary to overcome any resistance; where there is no possibility
of resistance (as in pickpocket cases), there is no robbery. See Curley, 1997-NMCA-038, ¶ 18.
29

Furthermore, neither of the New Mexico cases Manzanares cites to support this point involved
mere “jostling” to divert the victim’s attention. In State v. Martinez, the defendant ripped the
victim’s pocket and knocked the victim against a railing. 1973-NMCA-120, ¶ 5. And in State v.
Segura, the defendant grabbed the victim’s bag and, while the victim held on to the bag as they
engaged in an altercation, the victim lost her balance and fell to the ground. 1970-NMCA-066,
¶¶ 2–3, 81 N.M. 673. While the court noted in Segura that “evidence of jostling or causing the
victim to fall” may constitute sufficient force for robbery, it did so in the context of a case in
which the victim resisted and a physical confrontation ensued.
Finally, the other New Mexico cases Manzanares cites also demonstrate force or violence
used in the defendants’ confrontations with the victims. See [Doc. 1] at 15; State v. Verdugo,
2007-NMCA-095, ¶ 26, 142 N.M. 267 (holding, in a single sentence without further analysis,
sufficient evidence of force existed where the defendant attempted to grab the victim’s purse
from around her arm and the victim “struggled to retain control” until the purse strap broke);
State v. Pitts, 1985-NMCA-045, ¶ 16, 102 N.M. 747 (the defendant grabbed the victim and
locked her into a cell).
Manzanares cites to a number of cases outside the Tenth Circuit holding that various state
statutes, which he alleges are similar to the New Mexico robbery statute, do not meet the
“physical force” requirement of § 924(e)(2)(B)(i).

[Doc. 1] at 15–17.

Again, I am not

persuaded. Nearly all the cases to which Manzanares cites evaluate a state law, the force element
of which is satisfied by the use of de minimis force. Id. (citing United States v. Castro-Vazquez,
802 F.3d 28, 37–38 (1st Cir. 2015) (robbery statute requires only “the slightest use of force”);
United States v. Dominguez-Maroyoqui, 748 F.3d 918 (9th Cir. 2014) (prior assault conviction
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did not qualify as a crime of violence under the force clause where conviction of assault could be
obtained when the defendant “use[d] any force whatsoever against a federal officer”) (emphasis
in original); United States v. Hollins, 514 F. App’x 264, 267–68 (3d Cir. 2013) (Pennsylvania
robbery statute was satisfied by “any amount of force applied to a person while committing a
theft”) (internal quotation marks omitted); In re Sealed Case, 548 F.3d 1085, 1090 (D.C. Cir.
2008) (robbery statute could be satisfied by using “the minimal level of force necessary to obtain
property by sudden or stealthy seizure or snatching”) (internal quotation marks omitted);
United States v. Moncrieffe, 2016 WL 913391, at *16–19 (E.D.N.Y. Mar. 10, 2016) (New York
robbery statute under which “any amount of force” satisfies the force element); United States v.
Bell, 2016 WL 344749, at *9–10 (N.D. Cal. Jan. 28, 2016) (robbery statute required only as
much force as required to snatch an item from the victim or the victim’s clothes); United States
v. Litzy, 2015 WL 5895199, at *4–5 (S.D.W. Va. Oct. 8, 2015) (force element of state statute
could be satisfied “by a mere uninvited touch”)).
Manzanares does cite to circuit decisions that have held that state statutes requiring
comparable or more force than is required under the New Mexico robbery statute do not satisfy
the “physical force” standard. [Doc. 1] at 16–17 (citing United States v. Bilal, 610 F. App’x 569,
569–70 (6th Cir. 2015) (assessing Ohio aggravated attempted robbery statute); United States v.
Montes-Flores, 736 F.3d 357, 368–39 (4th Cir. 2013) (assessing South Carolina assault and
battery of a high and aggravated nature); United States v. Carmichael, 408 F. App’x 769, 770
(4th Cir. 2011) (assessing North Carolina common law robbery)). As to the Ohio aggravated
attempted robbery statute, however, as discussed supra, the Tenth Circuit has already reached a
contrary opinion with respect to a similar statute. Ramon Silva, 608 F.3d at 670–71. In any
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event, this Court is not bound by decisions from other circuits. See also Harris, 844 F.3d at 1262
(recognizing that the circuits “have reached varying results” on the question of whether robbery
statutes satisfy the force clause).
New Mexico robbery requires more than de minimis force—it requires force sufficient to
put the victim on notice, thereby creating the possibility of a violent confrontation. The conduct
it criminalizes “always has the potential to lead to ‘violent force,’” Ramon Silva, 608 F.3d
at 670–71, and therefore it satisfies the physical force requirement of the force clause. The
additional requirement of a deadly weapon only bolsters this finding, though I need not consider
whether conviction for armed robbery requires the use (as opposed to the mere possession) of a
deadly weapon19 to reach this conclusion. New Mexico armed robbery qualifies as a violent
felony under the force clause of the ACCA.
VII. Conclusion
I find that Manzanares’s prior convictions for New Mexico aggravated assault with a
deadly weapon, aggravated battery, and armed robbery all satisfy the force clause of the ACCA,
§ 924(e)(2)(B)(i). There is no realistic probability that the statutes would be applied to conduct
falling outside the scope of the force clause. Therefore, they qualify as violent felonies under the
ACCA irrespective of the now-invalidated residual clause. Any reliance on the unconstitutional
residual clause was harmless. Manzanares is not entitled to resentencing. His motion should be
denied.

19

Judges within this district have reached different conclusions on this question. Compare, e.g., Rhoads v.
United States, 16-cv-0325 JCH/GBW, [Doc. 17] at 19–21 (D.N.M. Jan. 25, 2017) (finding support in New Mexico
case law for the proposition that conviction for armed robbery requires use of the weapon in the commission of the
robbery), with United States v. King, 16-cv-0501 MV/SMV, [Doc. 12] at 17–20 (D.N.M. Dec. 1, 2016) (finding that
conviction for armed robbery requires only possession, and not necessarily use, of the deadly weapon during
commission of the crime).

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IT IS THEREFORE RECOMMENDED that Defendant Archie Manzanares’s Motion
to Correct Sentence Pursuant to 28 U.S.C. § 2255 [CR Doc. 35; CV Doc. 1] be DENIED and
that case No. 16-cv-0599 WJ/SMV be DISMISSED with prejudice.

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN FOURTEEN 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 written 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. See D.N.M.LR-Civ. 10.1. If no objections are
filed, no appellate review will be allowed.

_____________________________
STEPHAN M. VIDMAR
United States Magistrate Judge

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