Manzanares v. United States of America

Filing 26

ORDER ADOPTING 21 REPORT AND RECOMMENDATIONS by District Judge William P. Johnson as further described herein. (kg)

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.
ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on the Magistrate Judge’s Proposed Findings and
Recommended Disposition [CR Doc. 53; CV Doc. 21] (“PF&RD”) issued September 6, 2017.
On reference by the undersigned, [CV Doc. 2], the Honorable Stephan M. Vidmar, United States
Magistrate Judge,1 recommended denying Defendant Archie Manzanares’s Motion to Correct
Sentence Pursuant to 28 U.S.C. § 2255 [CR Doc. 35; CV Doc. 1]. Manzanares objected to the
PF&RD on November 6, 2017. [CR Doc. 57; CV Doc. 25]. On de novo review of the portions
of the PF&RD to which Manzanares objects, the Court will overrule the objections, adopt the
PF&RD, deny Manzanares’s motion, and dismiss case number 16-cv-0599 WJ/SMV with
prejudice.
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).

1

Throughout his objections, Manzanares refers to Judge Vidmar as a “magistrate.” E.g., [CV Doc. 25] at 1, 2, 15,
16, 21, 23, 26, 28, 31. The appropriate title is “magistrate judge.” See 28 U.S.C. § 636.

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
whether he qualified as an armed career criminal under the Armed Career Criminal Act
(“ACCA”). If he was found to be an armed career criminal, Manzanares would stipulate to a
sentence of 180 months. 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. The PSR 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), or which were relied on as predicate offenses in
applying the ACCA enhancement. See id. at 8–12.
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].
Neither party objected to the PSR. See id. at 3. The Court accepted the plea agreement and

2

found that Manzanares qualified as an armed career criminal under the ACCA. Id. at 5. The
Court sentenced him to 180 months’ imprisonment pursuant to the plea agreement.

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.” Subsection (i) is referred to as the “force clause.”
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

3

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. Judge Vidmar found that Manzanares’s prior convictions qualified as
violent felonies irrespective of the now-invalidated residual clause
and recommended that his motion be denied.
Manzanares had 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. Manzanares challenged the application of the
ACCA sentencing enhancement. He argued that the government had waived the right to argue
that certain of his prior convictions qualified as violent felonies under those portions of
§ 924(e)(2)(B) that remained intact in the wake of Johnson II.

[Doc. 1]3 at 6–9.

In the

alternative, Manzanares contended that his prior New Mexico convictions for aggravated assault

2

The record showed a discrepancy as to the precise number of Manzanares’s prior felony convictions: his PSR
listed six, but his charging document listed five. Compare PSR at 5, with [CR Doc. 2] at 1. Judge Vidmar noted
that this discrepancy was immaterial because the conviction not listed in the indictment was not one of the three on
which the government relied for the ACCA sentencing enhancement. [CV Doc. 21] at 4 n.2.
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

with a deadly weapon, aggravated battery, and armed robbery4 could have qualified as violent
felonies (and thus, counted toward his armed career criminal designation) only under the
now-invalidated residual clause. [Doc. 1] at 9–24. He argued he was therefore entitled to be
resentenced without application of the ACCA enhancement.
The government responded that it had not waived the right to argue that Manzanares’s
prior felony convictions qualified under the still-extant clauses of § 924(e)(2)(B). [Doc. 10]
at 14–15. It contended that because Manzanares did not object to the PSR or imposition of the
ACCA enhancement at sentencing, “the Court must assume that it relied upon all” of his
qualifying prior convictions. Id. at 15 (emphasis added). The government further argued that
each of the three prior felony convictions qualified under the force clause of the ACCA. Id. at 3–
14.
Judge Vidmar found that (1) the government had not waived the right to argue that
Manzanares’s prior convictions qualified under those portions of § 924(e)(2)(B) that survived
Johnson II, and (2) Manzanares’s prior convictions for New Mexico aggravated assault with a
deadly weapon, aggravated battery, and armed robbery qualified as violent felonies, irrespective
of the unconstitutional residual clause. [Doc. 21]. Therefore, he recommended that Manzanares
not be resentenced and that his § 2255 motion be denied.

4

Though the PSR never indicated which three of his prior convictions were the qualifying felonies, the parties
apparently agreed that these were the three at issue. Additionally, 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

A. Judge Vidmar found that the United States had not waived the right to argue
that Manzanares’s prior convictions qualified as violent felonies
under the force clause of the ACCA.
Judge Vidmar first addressed the threshold issue raised by Manzanares—whether the
government had waived the right to argue that certain of his prior convictions still qualified as
violent felonies under § 924(e)(2)(B) in the wake of Johnson II. [Doc. 21] at 6–10. Neither the
PSR nor the Court at sentencing expressly stated which of Manzanares’s prior felony convictions
qualified as violent felonies, or 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”).

Id. at 6.

Manzanares contended that, by failing to object at the time of his sentencing, the government
waived the right to later identify which prior convictions were qualifying ACCA predicate
offenses. Id. Manzanares argued it would be “fundamentally unfair” to allow the government to
“swap out unidentified ACCA predicate offenses” on collateral review of his ACCA
enhancement. Id.
Judge Vidmar found that Manzanares had cited no case law in support of his argument
that the government could not rely on prior convictions not specifically referenced as ACCA
predicates in the PSR or at sentencing. The case from the Eleventh Circuit on which Manzanares
relied actually contravened his position. Id. at 6–7 (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)). The court in McCarthan had noted that, in
general, defendants are “entitled to know the specific convictions on which an ACCA
enhancement is recommended and imposed.” Id. at 7–8 (quoting McCarthan, 811 F.3d at 1253).
But where the defendant had failed to object to the PSR or at sentencing, the court reviewing his

6

§ 2254 petition “must . . . assume that the district court relied on all of [the defendant’s]
ACCA-qualifying

convictions

in

imposing”

his

ACCA

enhancement.

Id.

at

8

(quoting McCarthan, 811 F.3d at 1254). McCarthan put the onus on the defendant, not the
government, to object to the PSR or at sentencing where the ACCA enhancement was applied
and the qualifying prior convictions not explicitly identified. Absent any such objection, the
reviewing court must presume that the sentencing court relied on all ACCA-qualifying
convictions.5 Judge Vidmar found that a recent decision from this District further compelled the
finding that the government had not waived the right to rely on Manzanares’s prior convictions.
Id. at 9–10 (citing United States v. Garcia, No. 16-cv-0240 JB/LAM, 2017 WL 2271421, at *19–
21 (D.N.M. Jan. 31, 2017) (“There is no dispute that [the defendant] 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.”)). The government was not foreclosed, Judge Vidmar found, from arguing that any
of the qualifying prior felony convictions listed in Manzanares’s PSR still qualified as ACCA
predicate offenses even absent the unconstitutional residual clause.
B. Judge Vidmar found that Manzanares’s predicate offenses qualified
as violent felonies under the force clause of the ACCA.
1. 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
5

Judge Vidmar noted that McCarthan did discuss the circumstances under which the government’s failure to object
to the PSR or at sentencing would constitute waiver. [Doc. 21] at 8 n.5 (citing McCarthan, 811 F.3d at 1250 n.8).
He found, however, that such circumstances were inapplicable to the facts of this case. Id.

7

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
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

8

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
(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

9

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.
2. Manzanares’s Prior Convictions
In Johnson v. United States (“Johnson I”), 559 U.S. 133, 138–40 (2010), the
Supreme Court interpreted “physical force” under the force clause of § 924(e)(2)(B) 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)).

10

Judge Vidmar considered whether each of Manzanares’s prior qualifying convictions
required the degree of force necessary to satisfy the “physical force” requirement of
§ 924(e)(2)(B)(i).6 He found that they did.
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 was no dispute that Manzanares was convicted of aggravated assault with a
deadly weapon, § 30-3-2(A). [Doc. 21] at 15.
Judge Vidmar found that Tenth Circuit precedent compelled the finding that § 30-3-2(A)
satisfied the “physical force” requirement of the force clause. Id. at 15–17. 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. Subsequently, in United States v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016),
the Tenth Circuit held that § 30-3-2(A), aggravated assault with a deadly weapon, was

6

The government did not contend that any of Manzanares’s prior convictions qualified under the enumerated clause
of § 924(e)(2)(B). The only issue, then, was whether each qualified under the force clause.

11

categorically a “crime of violence” under the force clause, no matter which theory of the
underlying simple assault applied.

Id. at 1250.

After determining that the New Mexico

aggravated assault statute was divisible, the court found that commission of aggravated assault
with a deadly weapon required the use (and not just the mere possession) of a deadly weapon in
carrying out the assault. Id. Employing a deadly 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 was categorically a crime of violence.7
Manzanares argued that a recent decision of the New Mexico Court of Appeals, State v.
Branch, 2016-NMCA-071, 387 P.3d 250, undercut the reasoning of Ramon Silva and
Maldonado-Palma and compelled a different outcome. [Doc. 21] at 17. Manzanares argued
that, per the reasoning of Branch, assault in New Mexico did 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. (citing [Doc. 19] at 2). He argued that the Tenth Circuit’s recent decisions were wrongly
decided because they rested on the principle that the use of physical force must be “intentional
against the person of another.” Id. (citing [Doc. 19] at 4). Judge Vidmar rejected this argument.
He found he was bound by the Tenth Circuit’s decisions in Ramon Silva and Maldonado-Palma.
Id.

Branch was decided before Maldonado-Palma and therefore did not undermine the

precedential value of that decision. Id.; see also 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
7

Although the court in Maldonado-Palma was evaluating the force clause of United States Sentencing Guidelines
§ 2L1.2, Judge Vidmar found that its holding applied equally to the identically worded force clause of the ACCA’s
definition of violent felony. [Doc. 21] at 16 (citing Maldonado-Palma, 839 F.3d at 1248; Ramon Silva, 608 F.3d
at 671; United States v. Mitchell, 653 F. App’x 639, 642 (10th Cir. 2016)).

12

concluding that the court “is not, however, free to disregard the majority’s conclusion that
aggravated assault with a deadly weapon in New Mexico is a violent felony” under the force
clause of the ACCA). Judge Vidmar concluded that New Mexico aggravated assault with a
deadline weapon, § 30-3-2(A), qualified as a violent felony under the force clause of the ACCA,
18 U.S.C. § 924(e)(2)(B).
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. Judge Vidmar first found that § 30-3-5 was divisible into its respective misdemeanor
and felony subsections because statutory alternatives carrying different penalties “must be
elements.”8 [Doc. 21] at 18 (quoting Mathis, 136 S. Ct. at 2256). Applying the modified

8

Manzanares challenged the government’s position that the divisibility question should be decided and the modified
categorical approach applied. He argued, “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.” [Doc. 19] at 8.
Judge Vidmar rejected this apparent suggestion that because simple battery is a component of aggravated battery,
the divisibility question is irrelevant, because simple battery does not require Johnson I-level physical force.
[Doc. 21] at 18 n.11. He found that Manzanares’s analysis was mistaken and the divisibility question necessarily

13

categorical approach, he found that Manzanares was convicted under subsection C, the felony
version of the statute.9 Id. at 19.
Having concluded that Manzanares was convicted of felony aggravated battery,
Judge Vidmar compared the elements of § 30-3-5(C) against the force clause of § 924(e)(2)(B).
Conviction under § 30-3-5(C) required 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 bodily
harm could be inflicted. Id. at 19–20 (citing § 30-3-5(C); UJI 14-322 NMRA; UJI 14-323
NMRA). “Great bodily harm,” under New Mexico law, was “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.”
Id. at 20 (citing NMSA 1978, § 30-1-12(A)). And a “deadly weapon” was defined as “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.” Id. (citing § 30-1-12(B)). Moreover,
aggravated battery with a deadly weapon in New Mexico required the use of the deadly weapon.
Id. (citing 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))).

preceded a comparison of the elements of the crime of conviction against the force clause. Id. (citing Mathis, 136 S.
Ct. at 2256 (characterizing the divisibility question (“elements or means?”) as the “threshold inquiry”)).
9
It was not clear to Judge Vidmar whether Manzanares genuinely contested that he was convicted of the felony,
rather than the misdemeanor, version of aggravated battery. [Doc. 21] at 19. Neither party had submitted
documentation of his prior conviction beyond the PSR, and Manzanares cited case law providing that “a court may
not use [a PSR] to resolve a conviction’s ambiguities.” Id. (quoting United States v. Hays, 526 F.3d 674, 678
(10th Cir. 2008)). To the extent Manzanares was contesting that he was convicted of felony aggravated battery,
Judge Vidmar took judicial notice of the public record of his conviction, which showed that he was convicted of
felony aggravated battery, § 30-3-5(C). Id. at 19 & n.14.

14

Judge Vidmar found that the least culpable conduct under § 30-3-5(C) necessarily
involved the use or threatened use of physical force—“force capable of causing physical pain or
injury to another person.” Id. (quoting Johnson I, 559 U.S. at 140). Although the Tenth Circuit
has not decided this specific question, it has evaluated similar statutes. Id. In United States v.
Treto-Martinez, the Tenth Circuit held that Kansas aggravated battery satisfied the force clause
of the Guidelines.10 421 F.3d 1156, 1160 (10th Cir. 2005). 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 is . . . sufficient 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.
Judge Vidmar also looked to recent Tenth Circuit decisions interpreting assault statutes. Id. at 21
(citing Maldonado-Palma, 839 F.3d at 1249–50 (the use of a weapon “capable of producing
death or great bodily harm” “necessarily threatens the use of physical force”); Ramon Silva, 608
F.3d at 670–71 (even though conviction could result without any actual physical contact against
the victim, the conduct criminalized “could always lead to . . . substantial and violent contact,
and thus . . . would always include as an element the threatened use of violent force” (internal
quotation marks omitted)); 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

10

Judge Vidmar acknowledged that Treto-Martinez pre-dated Johnson I but noted that the court in Treto-Martinez
did not apply a lesser standard of “physical force” in interpreting the force clause. [Doc. 21] at 20 n.15. Therefore,
it did not appear to Judge Vidmar that the precedential value of Treto-Martinez was diminished by Johnson I. Id.

15

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))).
Conviction under § 30-3-5(C), Judge Vidmar found, required more than de minimis
force—it required the intent to injure and commission in a manner whereby great bodily harm
was inflicted, where death or great bodily harm could have been inflicted, or where a deadly
weapon was used. Id. at 22. A battery committed in a manner that could inflict great bodily
harm necessarily required “force capable of causing physical pain or injury.”

Id. (citing

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.” Id. (quoting Taylor,
843 F.3d at 1224 (internal quotation marks omitted)). Judge Vidmar found that 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.
Manzanares’s arguments to the contrary were unpersuasive. Id. at 22–23. He argued that
conviction under the aggravated battery statute could 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 contended, any unlawful touch would satisfy the
battery element, and no more force was required for conviction of the greater offense of
aggravated battery. [Doc. 19] at 5. But Judge Vidmar noted that Manzanares cited no case that
supported his argument. [Doc. 21] at 22–23. His citations to cases analyzing “simple” battery,
rather than felony aggravated battery, were inapposite. Id. And the cases he cited that did

16

actually analyze the aggravated battery statute indisputably involved the use of physical force.
Id. at 23. Manzanares ignored the plain language of the statute, which explicitly required more
than mere touching, and cited no authority suggesting otherwise. Id.
Judge Vidmar likewise rejected Manzanares’s reliance on two Tenth Circuit cases,
finding that both cases were readily distinguishable. Id. (citing United States v. Hays, 526 F.3d
at 678 (Wyoming battery statute did not satisfy the force clause where conviction could result
from “unlawfully touching someone in a rude, insolent or angry manner”—i.e., “any contact,
however slight”); United States v. Barraza-Ramos, 550 F.3d 1246, 1249–51 (10th Cir. 2008)
(Florida aggravated battery statute, which criminalized battery against pregnant women, did not
satisfy the force clause because it could be violated by merely “touching” a pregnant woman
against her will)). Neither case 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 distinguished New Mexico aggravated battery from the statutes in those
cases. New Mexico felony aggravated battery, § 30-3-5(C), qualified as a violent felony under
the force clause of the ACCA.
Armed Robbery
Finally, Judge Vidmar considered Manzanares’s prior conviction for armed robbery. The
New Mexico 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.

17

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. Judge Vidmar found that the statute was divisible into simple robbery, a third degree
felony, and armed robbery, a first degree felony. [Doc. 21] at 24. Manzanares was convicted of
armed robbery. Id.
Judge Vidmar then evaluated whether New Mexico armed robbery required the degree of
physical force necessary to satisfy the force clause of the ACCA. Id. at 24–32. Without
resolving whether the additional requirement of being armed with a deadly weapon during the
commission of a robbery necessitates the use of force, he found that New Mexico robbery
necessarily required the use of Johnson I-level physical force, irrespective of whether the
defendant was armed.
Judge Vidmar found that the New Mexico robbery statute contained a force element: the
theft must be committed “by use or threatened use of force or violence.” Id. at 25 (quoting
§ 30-16-2). “The use of force, violence, or intimidation is an essential element of robbery.” Id.
(quoting 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, he found, courts must
consider the degree of force employed in the commission of the theft in evaluating conviction
under the statute. Id. (citing 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.”)).

18

Judge Vidmar concluded that New Mexico robbery required more than mere de minimis
force. Id. at 25–26. He was guided by the reasoning of two New Mexico state court decisions
distinguishing robbery from the less serious crime of larceny.

In State v. Curley, the

New Mexico Court of Appeals noted that theft constitutes robbery only where it is accomplished
using “force necessary to overcome any resistance.” Id. at 25 (quoting Curley, 1997 NMCA038, ¶ 18, 123 N.M. 295). The court noted that courts should construe the “resistance of
attachment” requirement “in light of 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. at 25–26 (quoting Curley, 1997-NMCA-038, ¶ 11).
The “reason for the distinction” between robbery and larceny—and the increased punishment—
“is the increased danger to the person.”

Id.

(quoting Curley, 1997-NMCA-038, ¶ 13).

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. (quoting Curley,

1997-NMCA-038, ¶ 13).
The Supreme Court of New Mexico clarified this rationale in State v. Bernal,
2006-NMSC-050. As the Court found, “robbery is a crime designed to punish the use of
violence” and “to protect citizens from violence.”

[Doc. 21] at 26 (quoting Bernal,

2006-NMSC-050, ¶¶ 27–28). In other words, Judge Vidmar found, 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. Id. The rationale behind the force element of New Mexico
robbery, he found, tracks that identified by the Tenth Circuit in defining a violent felony in

19

Ramon Silva—the prohibited conduct constitutes a violent felony because it “could always lead
to . . . substantial and violent contact.” Id. (quoting Ramon Silva, 608 F.3d at 672).
Judge Vidmar found that the Tenth Circuit’s decision in United States v. Harris, 844 F.3d
1260, further compelled his findings. [Doc. 21] at 26–28. In evaluating the force element of
Colorado robbery, the Harris court weighed heavily the language of a recent decision of the
Colorado Supreme Court that discussed the distinction between larceny and robbery. Id. at 27
(citing Harris, 844 F.3d at 1266–67).

The additional requirement of violence—of

“circumstances involving a danger to the person as well as a danger to property”—distinguished
Colorado robbery from the “property crime of larceny.” Id. (quoting Harris, 844 F.3d at 1266–
67).

To the extent that earlier decisions of the Colorado appellate courts upheld robbery

convictions on less-than-violent force, such case law was not controlling. Id. Judge Vidmar
found that the rationale of the Colorado Supreme Court distinguishing robbery from larceny, on
which the Harris court relied, mirrored that of the New Mexico courts in Curley and Bernal. Id.
at 27–28. The crime of robbery in New Mexico, as in Colorado, was designed to “punish the use
of violence” and “protect citizens from violence.” Id. at 28 (quoting Bernal, 2006-NMSC-050,
¶¶ 27–28). New Mexico robbery, Judge Vidmar found, qualified as a violent felony under the
force clause of the ACCA.
Judge Vidmar analyzed Manzanares’s authorities and arguments to the contrary and
found them to be inapposite or otherwise unpersuasive. Id. at 28–32. Manzanares relied, for
example, on language in New Mexico case law that referred not to the degree of force used, but
rather to the time at which the force or violence was deployed. Id. at 28–29 (citing State v.
Martinez, 1973-NMCA-120, ¶¶ 4–5, 513 P.2d 402; Lewis, 1993-NMCA-165, ¶ 12). Such

20

language was not pertinent to the consideration of the degree of force required to commit
robbery in New Mexico.
Judge Vidmar likewise found that the authorities Manzanares cited for the proposition
that New Mexico robbery can be accomplished with de minimis force were unavailing. Id.
at 29–30 (citing Curley, 1997-NMCA-038; Martinez, 1973-NMCA-120; State v. Segura,
1970-NMCA-066, 81 N.M. 673; State v. Verdugo, 2007-NMCA-095, ¶ 26, 142 N.M. 267; State
v. Pitts, 1985-NMCA-045, ¶ 16, 102 N.M. 747). He found that none of the cases Manzanares
cited actually upheld a robbery conviction on de minimis force, and that any dicta in the cases
suggesting as much ran counter to the principles set out in Curley and Bernal. Id. Finally,
Judge Vidmar was not persuaded by the case law Manzanares cited from outside the
Tenth Circuit. Id. at 30–31; 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).
Judge Vidmar found that Manzanares’s prior convictions for New Mexico aggravated
assault with a deadly weapon, aggravated battery, and armed robbery all qualified as violent
felonies irrespective of the unconstitutional residual clause. He therefore recommended that
Manzanares’s motion be denied.
IV. Standard of Review for Objections to Magistrate Judge’s PF&RD
A district judge must “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.”

28 U.S.C.

§ 636(b)(1)(C). “[O]bjections to the magistrate judge’s report must be both timely and specific
to preserve an issue for de novo review by the district court[.]” United States v. 2121 E. 30th St.,

21

73 F.3d 1057, 1060 (10th Cir. 1996). To preserve an issue, a party’s objections to a PF&RD
must be “sufficiently specific to focus the district court’s attention on the factual and legal issues
that are truly in dispute.” Id. Moreover, “theories raised for the first time in objections to the
magistrate judge’s report are deemed waived.” United States v. Garfinkle, 261 F.3d 1030, 1030–
31 (10th Cir. 2001).
V. Analysis
Manzanares objects to Judge Vidmar’s proposed findings and recommended disposition.
[Doc. 25]. He objects to the findings that each of his three prior New Mexico convictions for
aggravated assault with a deadly weapon, aggravated battery, and armed robbery requires the use
of Johnson I-level force, such that they qualify as violent felonies under the force clause of
§ 924(e)(2)(B).11 On de novo review, the Court agrees with Judge Vidmar that all three prior
convictions qualify as violent felonies under the force clause of § 924(e)(2)(B). Manzanares’s
objections will be overruled and his motion will be denied.
Aggravated Assault with a Deadly Weapon
Manzanares objects to Judge Vidmar’s finding that New Mexico aggravated assault with
a deadly weapon, § 30-3-2(A), qualifies as a violent felony under the force clause of
§ 924(e)(2)(B). As discussed supra, Judge Vidmar found that the Tenth Circuit’s recent decision
in Maldonado-Palma controlled the outcome here. [Doc. 21] at 15–17.
Manzanares urges in his objections, as he did in his briefing on the motion, that
Maldonado-Palma is not controlling.

He suggests that Maldonado-Palma and the

Tenth Circuit’s earlier decision in Ramon Silva misinterpreted § 30-3-2(A) in two material ways
11

Manzanares did not object to Judge Vidmar’s finding that the government had not waived the right to argue that
these prior convictions qualified as violent felonies under the force clause of § 924(e)(2)(B).

22

that bear on whether the statute satisfies the force clause of § 924(e)(2)(B). First, he contends
that conviction under § 30-3-2(A) can result from no more than a person insulting another (i.e.,
committing an assault) while possessing a weapon, and that the provision does not require that
the weapon actually be used in the commission of the assault. [Doc. 25] at 2, 6–8 (discussing
New Mexico case law). Because the court in Maldonado-Palma interpreted § 30-3-2(A) to
require that the deadly weapon be “actively employed in committing the assault”—and it was
this use of the deadly weapon that satisfied the physical force requirement of the force clause—
that case was wrongly decided, Manzanares argues. Id. at 3–6 (quoting Maldonado-Palma,
839 F.3d at 1250). He suggests that the Tenth Circuit failed to follow the categorical approach
set out in Mathis by improperly reading “beyond the statute’s plain language” to find that § 30-32(A) required “use” of the weapon. Id. at 4. Second, Manzanares maintains that § 30-3-2(A)
does not require “any intent with respect to the victim,” and thus does not require the use of force
“against the person of another.” Id. at 8; see also id. at 8–11 (citing Branch, 2016-NMCA-071;
State v. Manus, 1979-NMSC-035, 93 N.M. 95, overruled on other grounds by Sells v. State,
1982-NMSC-125, 98 N.M. 786). He argues that Ramon Silva and Maldonado-Palma rest on “an
incorrect idea of the elements” of § 30-3-2(A). Id. at 13.
Manzanares’s objections are without merit and will be overruled. As an initial matter, the
court in Maldonado-Palma did not, as Manzanares suggests, sidestep the categorical approach
mandated by the Supreme Court. The categorical approach directs courts to “focus solely on . . .
the elements of the crime of conviction” to determine whether the crime of conviction qualifies
as a violent felony—in the context of the force clause, whether the crime of conviction
necessarily requires the use of Johnson I-level “physical force.” See Mathis, 136 S. Ct. at 2248.

23

Courts are directed to look at the statutory elements only and not to consider the underlying facts
of the crime. This direction away from examining the record of a particular conviction is the
raison d’être of the categorical approach. In employing the categorical approach, courts must
look to state law to interpret the statutory elements. Harris, 844 F.3d at 1264. Interpreting the
meaning of a statutory element is different than looking behind the elements to the facts
surrounding conviction. Manzanares seems to conflate these analyses, only the latter of which is
at odds with the categorical approach. See [Doc. 25] at 4–5. In evaluating “what proof is
necessary” for conviction under § 30-3-2(A), the Tenth Circuit in Maldonado-Palma was merely
interpreting the meaning of the statutory requirement that the assault be committed “with a
deadly weapon.” 839 F.3d at 1249. This process is not inconsistent with the categorical
approach; the categorical approach demands it.
Moreover, Manzanares’s arguments that Maldonado-Palma misinterpreted New Mexico
law are beside the point. Whatever Manzanares thinks of Maldonado-Palma, it is binding
Tenth Circuit law which this Court must follow. Manzanares urges that Tenth Circuit precedent
interpreting state law “can be overruled by a later declaration[] to the contrary by that state’s
courts.” [Doc. 25] at 13 (internal quotation marks omitted) (quoting United States v. Badger,
818 F.3d 563 (10th Cir. 2016)). Manzanares argues that Branch is the contrary authority that
renders the holding of Maldonado-Palma non-binding. But, as Judge Vidmar pointed out,
Branch was decided before Maldonado-Palma.

It is not contrary intervening authority.

Moreover, as Manzanares himself notes, the Branch court relied on the reasoning of a
New Mexico Supreme Court case decided in 1979. See [Doc. 25] at 13. The Court is bound by
the Tenth Circuit’s recent decision in Maldonado-Palma. New Mexico aggravated assault with a

24

deadly weapon, § 30-3-2(A), qualifies as a violent felony under the force clause of
§ 924(e)(2)(B).
Aggravated Battery
Manzanares also objects to Judge Vidmar’s finding that New Mexico aggravated battery,
§ 30-3-5(C), qualifies as a violent felony under the force clause of § 924(e)(2)(B).

His

objections expound on the argument he made in his briefing on the motion. The force element of
aggravated battery, he argues, is the “unlawful touching or application of force” to the person of
another. Aggravated battery thus requires for conviction no more force than that required to
commit simple battery—unlawful touching, no matter how slight—and such de minimis force
does not satisfy the force requirement of § 924(e)(2)(B). Although felony aggravated battery
additionally requires that the battery either inflict great bodily harm, be done in a manner
whereby great bodily harm or death could be inflicted, or be committed with a deadly weapon,
this additional requirement concerns the risk of injury and does not bear on the degree of force
required to accomplish the battery. Manzanares contends that Judge Vidmar erred by rejecting
the proposition that New Mexico aggravated battery includes as an element common law battery
and thus can be accomplished with de minimis force. [Doc. 25] at 15. He further suggests that
Judge Vidmar’s consideration of the divisibility question and application of the modified
categorical approach were unnecessary. Id. at 26–27.
Manzanares’s objections are without merit and will be overruled. First, Judge Vidmar
correctly applied the modified categorical approach at the outset of his analysis, finding that
§ 30-3-5 was divisible into its misdemeanor and felony versions.

[Doc. 21] at 18–19.

Manzanares argues that application of the modified categorical approach is unnecessary.

25

[Doc. 25] at 26–27.

He contends that the divisibility question “is irrelevant because both

[misdemeanor and felony aggravated battery] require proof of an unlawful touch,” and thus
neither can satisfy the force clause. Id. at 26. For the reasons set out in the PF&RD and
discussed further infra, Manzanares’s analysis is flawed. The additional requirements of felony
aggravated battery bear on the question of whether that crime qualifies as a violent felony under
the force clause. It is not sufficient to point out that both versions include the “unlawful
touching” requirement of simple battery.

The divisibility analysis and application of the

modified categorical approach necessarily precede a comparison of the elements against the
force clause, because a statute’s divisibility vel non will determine what the elements of the
statute are.12 See Mathis, 136 S. Ct. at 2256 (characterizing the divisibility question as the
“threshold inquiry”). I adopt Judge Vidmar’s finding that Manzanares was convicted of felony
aggravated battery, § 30-3-5(C).
As to the substantive analysis of § 30-3-5(C), Manzanares misapprehends
Judge Vidmar’s findings in the PF&RD.

He suggests that Judge Vidmar “refuses to

acknowledge” that unlawful touching is an element of aggravated battery. [Doc. 25] at 15.
Judge Vidmar did not refuse to acknowledge the “unlawful touching” requirement. He found,
instead, that the “unlawful touching” element could not be considered in isolation, as
Manzanares urges, in comparing that statute to the force clause. Judge Vidmar found that the
additional alternative requirements that elevate simple battery to felony aggravated battery—the
infliction of great bodily harm, commission in a manner whereby great bodily harm could be
12

As Judge Vidmar pointed out in the PF&RD, resolution of the divisibility of § 30-3-5 is an essential first step in
this case for a more fundamental reason. See [Doc. 21] at 19 & n.12. Section 30-3-5 is divisible into a
misdemeanor, § 30-3-5(B), and a felony, § 30-3-5(C). If Manzanares had been convicted of the misdemeanor
version, that would be the end of the analysis. A misdemeanor conviction would not qualify as a violent felony
under § 924(e)(2)(B) irrespective of whether the statute of conviction satisfied the force clause.

26

inflicted, or commission with a deadly weapon—put the statute within the range of conduct that
satisfies the force clause. See [Doc. 21] at 20–22. In other words, a battery committed in a
manner that could inflict great bodily harm necessarily requires the use or threat of Johnson Ilevel physical force. Id. at 22 (citing Johnson I, 559 U.S. at 140; Treto-Martinez, 421 F.3d
at 1160).
The Court adopts the reasoning set out in the PF&RD. Contrary to Manzanares’s urging,
the additional alternative requirements of bodily injury (or use of a deadly weapon) render § 303-5(C) a qualifying predicate felony under the force clause. As the Tenth Circuit set out in
Treto-Martinez, “[n]o 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.’” 421 F.3d
at 1160. The “unlawful touching” requirement cannot be evaluated independently of the bodily
injury requirement in determining whether the crime requires Johnson I-level force.

As

Judge Vidmar found, Manzanares’s reliance on case law analyzing simple battery is unavailing.
See [Doc. 21] at 22–23; see also, e.g., United States v. Barraza-Ramos, 550 F.3d at 1250–51
(Florida aggravated battery statute did not satisfy force clause because it could be violated by
merely “touching” a pregnant woman against her will; the statute elevated simple battery to
aggravated battery based only on the status of the victim, rather than any additional force or
injury requirement).
Manzanares does cite to two Tenth Circuit cases holding that certain state statutes,
despite having a bodily injury element, failed to satisfy the force clause of the Guidelines.
[Doc. 25] at 19–21 (citing United States v. Perez-Vargas, 414 F.3d 1282, 1285 (10th Cir. 2005)

27

(assault statute requiring that the defendant “knowingly or recklessly causes bodily injury to
another person or with criminal negligence he causes injury to another person by means of a
deadly weapon”); United States v. Rodriguez-Enriquez, 518 F.3d 1191, 1195 (10th Cir. 2008)
(statute criminalizing the “nonconsensual administration of a drug, substance, or preparation”
that causes harm to the victim (internal quotation marks omitted)).

In those cases, the

Tenth Circuit rejected the view that the word “physical” in the context of “physical force” could
“relate[] to the effect of the force”; instead, it “must refer to the mechanism by which the force is
imparted to the ‘person of another.’”

Rodriguez-Enriquez, 518 F.3d at 1194.

Thus,

“intentionally exposing someone to hazardous chemicals,” for example, would not constitute
“physical force,” though it could cause significant bodily harm. Id. at 1195. Relying on those
cases, Manzanares argues that a person could be convicted of felony aggravated battery by, for
example, intentionally exposing someone to an allergen that results in serious bodily injury.
[Doc. 25] at 20. He argues that under the logic of Perez-Vargas and Rodriguez-Enriquez, such
conduct would not satisfy the physical force requirement.
After Perez-Vargas and Rodriguez-Enriquez were decided, however, the Supreme Court
decided United States v. Castleman, 134 S. Ct. 1405 (2014). In that case, the Court evaluated
whether conviction for an offense involving knowingly or intentionally causing bodily injury to
another satisfied the force clause of the definition of a “misdemeanor crime of domestic
violence” under 18 U.S.C. § 922(g)(9).

The Court held that “the knowing or intentional

causation of bodily injury necessarily involves the use of physical force.” 134 S. Ct. at 1414. “A
‘bodily injury,’” the Court held, “must result from ‘physical force.’” Id. This is true whether or
not the force is applied directly:

28

[A]s we explained in [Johnson I], “physical force” is simply “force
exerted by and through concrete bodies,” as opposed to
“intellectual force or emotional force.” And the common-law
concept of “force” encompasses even its indirect application. . . .
It is impossible to cause bodily injury without applying force in the
common-law sense.
Second, the knowing or intentional
application of force is a “use” of force. [The defendant] is correct
that under Leocal v. Ashcroft, the word “use” “conveys the idea
that the thing used (here, ‘physical force’) has been made the
user’s instrument.” But he errs in arguing that although “[p]oison
may have ‘forceful physical properties’ as a matter of organic
chemistry, . . . no one would say that a poisoner ‘employs’ force or
‘carries out a purpose by means of force’ when he or she sprinkles
poison in a victim’s drink[.]” The “use of force” in [the
defendant’s] example is not the act of “sprinkl[ing]” the poison; it
is the act of employing poison knowingly as a device to cause
physical harm. That the harm occurs indirectly, rather than
directly (as with a kick or punch), does not matter. Under [the
defendant’s] logic, after all, one could say that pulling the trigger
on a gun is not a “use of force” because it is the bullet, not the
trigger, that actually strikes the victim. Leocal held that the “use”
of force must entail “a higher degree of intent than negligent or
merely accidental conduct”; it did not hold that the word “use”
somehow alters the meaning of “force.”
Id. at 1414–15 (internal citations omitted).
It is true that the Court in Castleman was evaluating the physical force requirement of a
misdemeanor crime of domestic violence, rather than the physical force requirement of a violent
felony. And the majority opinion in Castleman acknowledged that it was not deciding whether
“causation of bodily injury necessarily entails violent force.” 134 S. Ct. at 1413 (emphasis
added). But see id. at 1417 (Scalia, J., concurring) (“[I]ntentionally or knowingly caus[ing]
bodily injury categorically involves the use of force capable of causing physical pain or injury to
another person.” (second alteration in original) (internal citation and quotation marks omitted)).
Nevertheless, the Court’s reasoning with respect to the meaning of “use of force”—namely, its
determination that such use of force may be effectuated through direct or indirect means—
29

extends to an interpretation of an identically-worded phrase appearing in a similar context.13 The
Court’s logic—i.e., that the use of physical force lies in the act of causing physical harm and not
necessarily in the physical exertion required to create the harm—applies equally to the force
clause of § 924(e)(2)(B). Castleman thus undercuts the logic of Perez-Vargas and RodriguezEnriquez and forecloses Manzanares’s argument on this point.
Battery that inflicts or could have inflicted great bodily harm necessarily entails the
violent force required by Johnson I—the use or threat of force “capable of causing physical pain
or injury to another person.” 559 U.S. at 140. New Mexico felony aggravated battery, § 30-35(C), qualifies as a violent felony under the force clause of § 924(e)(2)(B).14
Armed Robbery
Finally, Manzanares objects to Judge Vidmar’s finding that New Mexico armed robbery,
§ 30-16-2, qualifies as a violent felony under the force clause of § 924(e)(2)(B). Though he
found that § 30-16-2 was divisible into simple robbery and armed robbery, Judge Vidmar found
that New Mexico robbery requires Johnson I-level physical force irrespective of whether the
defendant was armed with a deadly weapon. [Doc. 21] at 24–32. In his objections, Manzanares
re-asserts the arguments and authorities he cited in his original briefing. [Doc. 25] at 28–32.
Citing the same body of New Mexico case law, he maintains that New Mexico robbery can be

13

Other courts in the Tenth Circuit have reached the same conclusion. See Miller v. United States, 2016 WL
7256875, at *5–7 (D. Wyo. Dec. 15, 2016) (unpublished) (Wyoming robbery statute requiring that the defendant
inflict bodily injury upon another person in the commission of the crime satisfied the Guidelines’ force clause);
Pikyavit v. United States, 2017 WL 1288559, at *4–7 (D. Utah Apr. 6, 2017) (applying the reasoning of Castleman
to hold that Utah’s assault by prisoner statute qualified under the ACCA’s force clause).
14
Several other judges in this District have reached the same conclusion. E.g., United States v. Pacheco, 16-cv0341 WJ/CG, [Doc. 15] at 8–9 (D.N.M. June 1, 2017); United States v. Sanchez, 16-cv-0659 JAP/GBW, [Doc. 26]
at 14–16 (D.N.M. Sept. 27, 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).

30

accomplished through the application of de minimis force to the victim. Id. at 28–29. He cites a
large volume of case law from other federal courts in support of his position. Id. at 31–32.
On de novo review, the Court adopts the reasoning set out by Judge Vidmar in the
PF&RD and finds that New Mexico robbery requires Johnson I-level physical force.

As

discussed at length supra, there is no question that the force clause of the ACCA requires more
than de minimis force. See Harris, 844 F.3d at 1264–65 (the Court in Johnson I used the
language of “violent force” and “strong physical force” in the course of “rejecting the
government’s argument that physical force means . . . . even the slightest offensive touching”
(internal quotation marks omitted)). New Mexico robbery requires more than such minimal
force. See, e.g., Clokey, 1976-NMSC-035, ¶ 3 (“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.”); Lewis, 1993-NMCA-165, ¶ 15
(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)).
As Judge Vidmar noted in the PF&RD, the language of the Supreme Court of
New Mexico in State v. Bernal provides the strongest indication that New Mexico robbery
requires Johnson I-level violent physical force. New Mexico robbery, as opposed to larceny,
“requires, and is designed to punish, the element of force.” 2006-NMSC-050, ¶ 28. “Since
robbery generally carries a heavier punishment than larceny, the robbery statute clearly is
designed to protect citizens from violence.” Id. Robbery “is not merely a property crime, but a

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crime against a person.”15 Id.; see also Harris, 844 F.3d at 1264 (looking to language from the
Colorado Supreme Court distinguishing between robbery and larceny in deciding that Colorado
robbery satisfied the force clause); United States v. Garcia, 2017 WL 2271421, at *24 (D.N.M.
Jan. 31, 2017) (relying on Bernal to find that New Mexico robbery satisfies the force clause).
Manzanares fails to address Judge Vidmar’s analysis of Bernal in his objections. His other
arguments regarding case law purporting to provide that New Mexico robbery can be committed
with no more than de minimis force were soundly rejected by Judge Vidmar in the PF&RD.
See [Doc. 21] at 28–30; see also Garcia, 2017 WL 2271421, at *23 n.12 (“[A]s applied, the
Court is convinced that Court of Appeals of New Mexico’s standard results in robbery
convictions only where a defendant utilizes Johnson I violent force.”).

His citations to

Tenth Circuit case law in support of his position are unavailing because the cases he cites address
statutes whose force elements are satisfied by de minimis force. E.g., United States v. Ama,
684 F. App’x 736, 741 (10th Cir. 2017) (federal statute criminalizing “forcibl[e]” assault of a
federal employee did not satisfy force clause, where “[e]ven minor contact, such as lay[ing]
one’s finger on another person without lawful justification” was “forcible” (last alteration in
original) (internal quotation marks omitted)); United States v. Lee, 2017 WL 2829372, at *4
(10th Cir. June 30, 2017) (unpublished) (holding that Florida statute that could be violated by
“wiggling and struggling” to avoid arrest or “clipping an officer’s hand while fleeing” did not
15

In the PF&RD, Judge Vidmar noted, based on the above-quoted language in Bernal, that the force required to
commit robbery is that which puts the victim on notice and creates the possibility of a dangerous and violent
confrontation. [Doc. 21] at 26. He noted that this looming potential for a violent altercation—on which the force
requirement of New Mexico robbery is based—was similar to the threat of violence created by the force element of
the assault statute analyzed by the Tenth Circuit in Ramon Silva. Id. The Tenth Circuit found that the assault statute
satisfied the force clause because it “could always lead to . . .substantial and violent contact.” Id. (quoting Ramon
Silva, 608 F.3d at 672). In his objections, Manzanares suggests that this reference to the possibility of violent
contact is somehow a reference to the invalid residual clause. [Doc. 25] at 29–30. In fact, the language on which
Judge Vidmar was relying came from the Tenth Circuit’s analysis of the force clause.

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satisfy the force clause, though it was a “close call”); United States v. Nicholas, 686 F. App’x
570, 574 (10th Cir. 2017) (Kansas robbery “requires nothing more than de minimis physical
contact”). Likewise, his citations to other federal court decisions analyzing similar statutes are
unavailing. Again, most of the cases he cites address statutes whose force requirement can be
satisfied through de minimis force. See id. at 31–32.
New Mexico robbery qualifies as a violent felony under the force clause of
§ 924(e)(2)(B). Several judges, including the undersigned, have reached the same conclusion in
other cases.16
Conclusion
Manzanares’s prior convictions for New Mexico aggravated assault with a deadly
weapon, § 30-3-2(A), aggravated battery, § 30-3-5(C), and armed robbery, § 30-16-2, qualify as
violent felonies under the force clause of the ACCA’s definition of “violent felony,”
§ 924(e)(2)(B).

His prior convictions qualify as violent felonies irrespective of the

now-invalidated residual clause. His motion under § 2255 will be denied.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Manzanares’s
Objections to the Magistrate Judge’s Proposed Findings and Recommended Disposition
[CR Doc. 57; CV Doc. 25] are OVERRULED.
IT IS FURTHER ORDERED that the Magistrate Judge’s Proposed Findings and
Recommended Disposition [CR Doc. 53; CV Doc. 21] are ADOPTED.

16

See United States v. Barela, 2017 WL 3142516 (D.N.M. July 25, 2017); see also, 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-cv0325 JCH/GBW, [Doc. 20] at 11 (D.N.M. Apr. 5, 2017); Hurtado v. United States, 16-cv-0646 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).

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IT IS FURTHER ORDERED that Defendant Archie Manzanares’s Motion to Correct
Sentence Pursuant to 28 U.S.C. § 2255 [CR Doc. 35; CV Doc. 1] is DENIED. Case number
16-cv-0599 WJ/SMV is DISMISSED with prejudice.
IT IS SO ORDERED.

__________________________________
WILLIAM P. JOHNSON
UNITED STATES DISTRICT JUDGE

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