Montes v. United States of America

Filing 19

MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Kirtan Khalsa regarding Defendant/Movant's Emergency Motion to Correct Sentence pursuant to 28 U.S.C. § 2255. Objections due by 6/5/2017. Add 3 days to the deadline 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).) (kmt) (Additional attachment(s) added on 5/22/2017: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (eh).

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

Civ. No. 16-606 MCA/KK
(Cr. No. 07-2236 MCA)

VICENTE A. MONTES,
Defendant/Movant.
MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Defendant/Movant Vicente A. Montes’
(“Defendant”) Emergency Motion to Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1)
(“Section 2255 Motion”), filed June 20, 2016. 1

Plaintiff/Respondent the United States of

America (“the Government”) responded in opposition to the motion on October 13, 2016, and
Defendant filed a reply in support of it on November 9, 2016. (Docs. 13, 16.) Chief United
States District Judge M. Christina Armijo referred this matter to me for proposed findings and a
recommended disposition on May 10, 2017. (Doc. 18.)
In June of 2009, Defendant pled guilty to being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (CR Docs. 2, 83, 84.) The
Court determined that Defendant had previously been convicted of three violent felonies, and
therefore imposed an enhanced sentence of 188 months’ imprisonment pursuant to the Armed
Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1). (CR Docs. 88, 89.) In his Section 2255

1

Defendant filed his Section 2255 Motion as an “emergency” motion because he claimed that the motion, if granted,
would result in his release on or about September 2, 2016. (Doc. 1 at 1.) However, Defendant later filed a notice
indicating that, in December 2015, he pled guilty to attempting to obtain a prohibited object in prison in violation of
18 U.S.C. § 1791, for which, in February 2016, he was sentenced to thirty months’ imprisonment, to run
consecutively with the sentence he challenges here. (Doc. 8 at 1; Doc. 8-1 at 1, 4.) As such, Defendant concedes
that his Section 2255 Motion “is no longer of an emergency nature.” (Doc. 16 at 1 n.1.)

Motion, Defendant claims that the Court should reduce his sentence because two of the prior
convictions on which the Court relied—i.e., his New Mexico convictions for armed robbery and
voluntary manslaughter—no longer qualify as convictions for violent felonies under the ACCA
in light of the United States Supreme Court’s decision in Johnson v. United States, — U.S. —,
135 S. Ct. 2551 (2015). 2 (Docs. 1, 16.) The Government opposes Defendant’s motion, arguing
that armed robbery and voluntary manslaughter remain violent felonies under the ACCA despite
the Samuel Johnson decision. (Doc. 13.)
The Court has meticulously reviewed the pleadings and attachments in this civil
proceeding and in the underlying criminal case, Cr. No. 07-2236 MCA. The Court has also
examined the Presentence Investigation Report (“PSR”) prepared by the United States Probation
Office (“USPO”) in Cr. No. 07-2236 MCA. 3 Because Defendant’s Section 2255 Motion raises
purely legal issues, an evidentiary hearing is unnecessary.

28 U.S.C. § 2255(b).

Having

carefully considered the parties’ submissions, the civil and criminal record, and the relevant law,
the Court recommends that Defendant’s Section 2255 Motion be DENIED, and that his claims
be DISMISSED WITH PREJUDICE.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On November 6, 2007, the Government charged Defendant by indictment with one count

of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2). (CR Doc. 2.) Defendant was initially represented by then-Assistant

2

The Court will refer to Johnson v. United States, — U.S. —, 135 S. Ct. 2551 (2015), as “Samuel Johnson,” to
distinguish it from Johnson v. United States, 559 U.S. 133 (2010), which the Court will refer to as “Curtis Johnson.”
Some courts refer to these cases as “Johnson II” and “Johnson I,” respectively; however, these captions could
suggest that the two decisions arise out of the same litigation or concern the same defendant, which they do not.

3

In this District, presentence investigation reports, though disclosed to the parties, are not generally filed of record
in criminal cases. Here, the Court adopted the PSR’s findings without objection in Cr. No. 07-2236 MCA, (CR Doc.
88 at 1), and both parties relied on it in their briefs in this Section 2255 proceeding. (Docs. 1, 13, 16.)

2

Federal Public Defender Phillip Medrano, but subsequently retained attorneys Robert Gorence
and Louren Oliveros to represent him. (CR Docs. 9, 18-21.) On December 21, 2007, the Court
ordered Defendant to be detained pending trial. (CR Doc. 10.) Defendant filed a motion to
suppress the evidence against him on September 26, 2008. (CR Doc. 37.) The Court held a twoday evidentiary hearing on the motion, and subsequently issued a memorandum opinion and
order denying it. (CR Docs. 51, 54, 64, 65, 67, 100.)
On June 23, 2009, Defendant pled guilty to the indictment pursuant to a conditional plea
agreement, in which he reserved the right to appeal the Court’s denial of his motion to suppress.
(CR Docs. 83, 84.) In the plea agreement, Defendant acknowledged his understanding that the
maximum penalty the Court could impose was
imprisonment for a period of not more than ten (10) years; however, the defendant
may be an armed career criminal which carries a minimum sentence of fifteen
(15) years[’] imprisonment.
(CR Doc. 83 at 2.)
In the PSR, which was disclosed on July 29, 2009, the USPO found that Defendant’s
sentence should be enhanced under the ACCA because he had at least three qualifying prior
convictions. (PSR at 2 & ¶ 22.) The PSR identified the qualifying prior convictions as: (1)
attempt to commit a felony (armed robbery), aggravated battery (deadly weapon), and
aggravated assault (deadly weapon), in Case No. D-202-CR-1996-02274; (2) armed robbery
(firearm enhancement), in Case No. D-1226-CR-1996-00142; and, (3) voluntary manslaughter
and conspiracy to commit murder in Case No. D-202-CR-1996-03913, all under New Mexico
law. (Id. ¶¶ 22, 27-29.) The PSR indicated that Case No. D-202-CR-1996-02274 and Case No.
D-202-CR-1996-03913 each involved multiple convictions arising out of the same incident. (Id.

3

¶¶ 27-29.) Thus, under the ACCA, the USPO could only have relied on one conviction from
each of these cases to justify the enhancement of Defendant’s sentence. 18 U.S.C. § 924(e)(1).
At a hearing on October 14, 2009, the Court adopted the findings in the PSR without
objection, enhanced Defendant’s sentence under the ACCA, and sentenced Defendant to 188
months’ imprisonment. (CR Doc. 88.) The Court entered a judgment of conviction against
Defendant on the same date. (CR Doc. 89.) Defendant timely appealed the Court’s denial of his
motion to suppress, and the United States Court of Appeals for the Tenth Circuit affirmed the
denial on October 29, 2010. (CR Doc. 106.) Defendant has been in federal custody since
December of 2007. (PSR at 1.)
On December 2, 2013, Defendant filed his first Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, (CR Doc. 108), which
the Court denied on January 14, 2014. (CR Doc. 110.) On July 7, 2014, the Tenth Circuit issued
an Order Denying Certificate of Appealability regarding this motion. (CR Doc. 120.)
Defendant filed the Section 2255 Motion presently before the Court on June 20, 2016,
less than one year after the Supreme Court struck down a portion of the ACCA in Samuel
Johnson, 135 S. Ct. at 2551. (Doc. 1.) On June 28, 2016, the Tenth Circuit Court of Appeals
granted him leave to file a second or successive motion under 28 U.S.C. § 2255. (CR Doc. 126.)
The Government responded in opposition to the Section 2255 Motion on October 13, 2016, and
Defendant filed a reply in support of it on November 9, 2016. (Docs. 13, 16.) In his motion,
Defendant asks the Court to reduce his sentence from 188 months’ to no more than ten years’
imprisonment, i.e., the maximum sentence he faced without enhancement under the ACCA.
(Doc. 1 at 1.) In support of this request, Defendant argues that the enhancement of his sentence
was unconstitutional, because: (1) the Court necessarily relied on the ACCA’s “residual clause”

4

to find that his prior armed robbery and voluntary manslaughter convictions were for violent
felonies under the Act; and, (2) the Samuel Johnson decision struck down the residual clause as
unconstitutionally vague. 4 (Doc. 1 at 6-23; Doc. 16 at 4-15.) In its response in opposition to
Defendant’s motion, the Government contends that the enhancement of Defendant’s sentence
was proper because New Mexico armed robbery and voluntary manslaughter qualify as violent
felonies under the ACCA’s “elements clause,” which Samuel Johnson left intact. 5 (Doc. 13 at 310.) Defendant’s Section 2255 Motion is now before the undersigned for proposed findings and
a recommended disposition.
II.

ANALYSIS
A.

New Mexico armed robbery with firearm enhancement is a violent felony under
the ACCA’s elements clause.

The ACCA provides that a person who violates 18 U.S.C. § 922(g) and has three prior
convictions for a “violent felony” or “serious drug offense” is subject to a minimum term of
fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1). Under the ACCA, the term “violent felony”
means
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

4

Defendant also claims that “[c]onspiracy can never constitute a violent felony under the ACCA,” presumably
referring to his prior conviction for conspiracy to commit murder. (Doc. 1 at 4, 23 (citing United States v. Fell, 511
F.3d 1035 (10th Cir. 2007) and United States v. Gonzalez-Ruiz, 794 F.3d 832 (7th Cir. 2015).) The Government did
not address this claim in its response. (See generally Doc. 13.) As discussed herein, the Court proposes to find that
Defendant still has three qualifying convictions under the ACCA post-Samuel Johnson, i.e., his convictions for
armed robbery with firearm enhancement and voluntary manslaughter, as well as the aggravated battery conviction
he has not challenged. Thus, at this time the Court need not address whether his conspiracy conviction would also
justify the enhancement of his sentence.
5

The Government also argues that New Mexico aggravated battery is a violent felony under the ACCA’s elements
clause. (Doc. 13 at 10-16.) Because Defendant has never claimed that this offense fails to qualify as a violent
felony, (see generally Docs. 1, 16), the Court need not consider the Government’s arguments on this point.

5

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.
18 U.S.C. § 924(e)(2)(B) (emphasis added). Subpart (i) of this definition is known as the
“elements clause”; the non-italicized portion of subpart (ii) is known as the “enumerated offenses
clause”; and, the italicized portion of subpart (ii) is known as the “residual clause.” Samuel
Johnson, 135 S. Ct. at 2556; United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017). In
Samuel Johnson, the Supreme Court held that the ACCA’s residual clause is unconstitutionally
vague, but left its elements and enumerated offenses clauses intact. 6 135 S. Ct. at 2557, 2563.
Armed robbery is not listed in the ACCA’s enumerated offenses clause.

18 U.S.C. §

924(e)(2)(B)(ii). Thus, to constitute a violent felony under the ACCA after Samuel Johnson,
New Mexico armed robbery with firearm enhancement must satisfy the elements clause.
To determine whether an offense “has as an element the use, attempted use, or threatened
use of physical force against the person of another” within the meaning of the ACCA’s elements
clause, courts must generally apply the “categorical approach,” which requires that they consider
only the offense’s statutory elements, and not the actual facts underlying the defendant’s prior
conviction. Harris, 844 F.3d at 1263; United States v. Duncan, 833 F.3d 751, 754 (7th Cir.
2016); United States v. Smith, 652 F.3d 1244, 1246 (10th Cir. 2011). Courts must presume that a
prior conviction “rested upon nothing more than the least of the acts criminalized” by the state
statute. Moncrieffe v. Holder, — U.S. —, 133 S. Ct. 1678, 1684 (2013) (internal punctuation
marks omitted). However, “in construing the minimum culpable conduct, such conduct only

6

In Welch v. United States, the Supreme Court held that Samuel Johnson announced a new substantive rule that
applies retroactively on collateral review. — U.S. —, 136 S. Ct. 1257, 1264-65 (2016). Defendant may therefore
challenge the enhancement of his sentence pursuant to the ACCA’s residual clause by way of a motion under 28
U.S.C. § 2255.

6

includes that in which there is a realistic probability, not a theoretical possibility the state statute
would apply.” Harris, 844 F.3d at 1264 (quoting Moncrieffe, 133 S. Ct. at 1685). Thus,
[t]o satisfy th[e] categorical approach, it is not necessary that every conceivable
factual offense covered by a statute fall within the ACCA. Rather, the proper
inquiry is whether the conduct encompassed by the elements of the offense, in the
ordinary case, qualifies under the ACCA as a violent felony.
Smith, 652 F.3d at 1246 (citation omitted). To identify the least culpable conduct a state statute
criminalizes in the ordinary case, courts look to “[d]ecisions from the state supreme court . . .
supplemented by decisions from the intermediate-appellate courts.” Harris, 844 F.3d at 1264.
In Curtis Johnson, the Supreme Court held that the term “physical force” as used in the
ACCA’s elements clause means “violent force—that is, force capable of causing physical pain or
injury to another person.” Curtis Johnson, 559 U.S. at 140 (emphasis in original); United States
v. Ramon Silva, 608 F.3d 663, 669 (10th Cir. 2010). The Supreme Court therefore concluded that
the force element of Florida battery, which can be satisfied by “the most nominal contact, such as
a tap on the shoulder without consent,” did not categorically rise to the level of physical force
under the ACCA. Curtis Johnson, 559 U.S. at 138-40 (internal punctuation marks and citation
omitted).

According to Curtis Johnson, such force consists of something more than mere

offensive touching, although it “might consist” of no more than “a slap in the face, for
example.” 7 Id. at 143; Harris, 844 F.3d at 1265.
To decide whether New Mexico armed robbery with firearm enhancement is a violent
felony under the ACCA’s elements clause, then, this Court must look to state law to determine
7

In United States v. Castleman, the Supreme Court left unresolved whether acts such as “[h]itting, slapping,
shoving, grabbing, pinching, biting, [and] hair pulling” rise to the level of “violent force, under [Curtis] Johnson’s
definition of that phrase.” — U.S. —, 134 S. Ct. 1405, 1411-12, 1414 (2014); but see id. at 1421-22 (Scalia, J.,
concurring) (“[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling” bear no “real resemblance
to mere offensive touching, and all of them are capable of causing physical pain or injury” within the meaning of
Curtis Johnson), and Harris, 844 F.3d at 1265 n.1 (Castleman did not categorize “pushing, grabbing, shoving,
slapping, and hitting” as non-violent force under Curtis Johnson).

7

whether the minimum culpable conduct allowing for a conviction in the ordinary case
necessarily includes the use of “physical force” as Curtis Johnson defined it. In other words, do
the elements of the offense categorically require the actual, threatened, or attempted use of force
capable of causing physical pain or injury to another person?
New Mexico’s robbery statute provides that
[r]obbery 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. 8
Whoever commits robbery is guilty of a third degree felony.
Whoever commits robbery while armed with a deadly weapon is, for the first
offense, guilty of a second degree felony and, for second and subsequent offenses,
is guilty of a first degree felony.
N.M. Stat. Ann. § 30-16-2.
This statutory language shows that armed robbery is not a distinct offense from
robbery; the offense is robbery whether or not armed, and whether or not one is an
accessory. “Armed robbery” is a way to commit “robbery” and, if done in that
way, the penalty is greater but the basic offense remains robbery.
New Mexico v. Roque, 1977-NMCA-094, ¶ 8, 91 N.M. 7, 569 P.2d 417. Thus, to determine
whether armed robbery is a violent felony under the ACCA, the Court must analyze the elements
of robbery, plus the additional element of commission of the offense “while armed with a deadly
weapon.” 9 N.M. Stat. Ann. § 30-16-2.

8 “[T]he words ‘or violence’” in Section 30-16-2 “refer to the unwarranted exercise of force and do not substantively
state an alternative means of committing the offense.” New Mexico v. Curley, 1997-NMCA-038, ¶ 4, 123 N.M. 295,
939 P.2d 1103; see also New Mexico v. Fuentes, 1994-NMCA-158, ¶ 14, 119 N.M. 104, 888 P.2d 986 (terms
“force” and “violence” are used synonymously in New Mexico robbery statute).

9

Although armed robbery is an aggravated form of robbery, robbery and armed robbery are two distinct offenses for
purposes of determining whether they are violent felonies under the ACCA, because they carry different
punishments. Mathis v. United States, — U.S. —, 136 S. Ct. 2243, 2256 (2016). Here, the parties agree that
Defendant was convicted of armed robbery. (Doc. 1 at 4; Doc. 13 at 3.)

8

In addition, Defendant’s armed robbery conviction included a firearm enhancement
pursuant to Section 31-18-16 of the New Mexico Statutes Annotated. (PSR ¶ 28.) Section 3118-16 provides that
[w]hen a separate finding of fact by the court or jury shows that a firearm was
used in the commission of a noncapital felony, the basic sentence of
imprisonment . . . shall be increased by one year [for a first offense and] by three
years [for a second or subsequent offense]. . . . If the case is tried before a jury
and if a prima facie case has been established showing that a firearm was used in
the commission of the offense, the court shall submit the issue to the jury by
special interrogatory. If the case is tried by the court and if a prima facie case has
been established showing that a firearm was used in the commission of the
offense, the court shall decide the issue and shall make a separate finding of fact
thereon.
N.M. Stat. Ann. § 31-18-16; see also N.M. U.J.I. 14-6013 (for firearm enhancement to apply,
state must prove beyond reasonable doubt that crime was committed “with the use of a firearm”).
That Defendant committed armed robbery with the use of a firearm was thus a fact, other than
the fact of a prior conviction, that increased the penalty for his offense beyond the prescribed
statutory maximum, and was constitutionally required to be charged, submitted to the jury, and
proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 476, 494-95 (2000).10
Whether it is characterized as an “element” or a “sentencing factor” does not matter. Id. at 494.
If, as here, “statutory alternatives carry different punishments, then under Apprendi they must be
elements.” Mathis, 136 S. Ct. at 2256.
10

In New Mexico v. Badoni, 2003-NMCA-009, 133 N.M. 257, 62 P.3d 348, the New Mexico Court of Appeals held
that the prosecution was not required to formally charge the defendant with a firearm enhancement under Section
31-18-16 where the enhancement was “premised upon a circumstance which itself was an element of the
[underlying] offense or a fact upon which such an element was established.” Id. at ¶¶ 17, 19 (emphasis omitted); cf.
New Mexico v. Barreras, 1975-NMCA-063, ¶ 7, 88 N.M. 52, 536 P.2d 1108 (“[A] defendant must be given notice,
in the criminal charge, that he used a firearm in committing the crime” but not “of the enhanced penalty for using a
firearm.”). In Defendant’s case, however, the prosecution complied with the clear dictates of Apprendi, and
specifically listed the firearm enhancement in the information by which Defendant was charged. See New Mexico v.
Montes, D-1226-CR-1996-00142, Criminal Information (12th Jud. Dist. Ct. filed Dec. 30, 1996), attached as Exhibit
A; see also New Mexico v. Montes, D-1226-CR-1996-00142, Plea and Disposition Agreement (12th Jud. Dist. Ct.
filed Feb. 20, 1998), attached as Exhibit B; New Mexico v. Montes, D-1226-CR-1996-00142, Judgment and
Sentence (12th Jud. Dist. Ct. filed Feb. 20, 1998), attached as Exhibit C; New Mexico v. Montes, D-1226-CR-199600142, Amended Judgment and Sentence (12th Jud. Dist. Ct. filed Dec. 21, 2000), attached as Exhibit D.

9

Had Defendant been convicted of armed robbery without the firearm enhancement, the
Court would have proposed to find that his offense of conviction no longer qualifies as a violent
felony under the ACCA. See United States v. King, 2016 WL 8809051 (D.N.M. Dec. 1, 2016),
supplemented by United States v. King, 2017 WL 1506765 (D.N.M. Feb. 17, 2017), adopted by
United States v. King, — F. Supp. 3d —, 2017 WL 1506766 (D.N.M. Mar. 31, 2017). However,
as further explained below, with the firearm enhancement’s added requirement of use of a
firearm in the commission of the offense, the Court proposes to find that New Mexico armed
robbery categorically requires the actual, threatened, or attempted use of Curtis Johnson physical
force, and therefore remains a violent felony under the ACCA.
New Mexico robbery must always be committed by the use of some degree of “force,” or
by “intimidation,” that is, by the “threatened use of force.” N.M. Stat. Ann. § 30-16-2; New
Mexico v. Bernal, 2006-NMSC-50, ¶ 28, 140 N.M. 644, 146 P.3d 289. Indeed, “[t]he gist of the
offense of robbery is the use of force or intimidation.” Id.; see Fuentes, 1994-NMCA-158 at ¶
12, 119 N.M. 104, 888 P.2d 986 (“[R]obbery can be presented under alternative theories: (1)
robbery by threat of force; (2) robbery by use of force; (3) armed robbery by threat of force; or
(4) armed robbery by use of force.”). To support a robbery conviction, “[t]he use or threatened
use of force must be the lever by which the thing of value is separated from the victim.” New
Mexico v. Martinez, 1973-NMCA-120, ¶ 4, 85 N.M. 468, 513 P.2d 402 (internal ellipses and
citation omitted).
“Where [robbery by] force is charged, the issue is not how much force was used, but
whether the force was sufficient to compel the victim to part with his property.” New Mexico v.
Sanchez, 1967-NMCA-009, ¶ 11, 78 N.M. 284, 430 P.2d 781. The New Mexico Court of
Appeals elaborated on this point in Curley, holding that the force element of robbery is satisfied

10

when the defendant removes property from the victim with sufficient force to overcome some
type of resistance, including “the resistance of attachment.” Curley, 1997-NMCA-038 at ¶¶ 4, 7,
10, 123 N.M. 295, 939 P.2d 1103. “In our cases where we have not found sufficient force to be
involved, the victim did not resist the property being taken from his person.” Id. at ¶ 7 (emphasis
added). Similarly, where the threatened use of force is charged, the threat must be “such as to
cause a reasonable man to apprehend danger and that he could be reasonably expected to give up
his property in order to protect himself.” Sanchez, 1967-NMCA-009 at ¶ 12, 78 N.M. 284, 430
P.2d 781.
As discussed in King, New Mexico simple robbery does not categorically require the use
of Curtis Johnson physical force, because where the victim’s resistance is minimal, the
defendant’s use of force to overcome it may also be minimal, as illustrated by New Mexico’s
line of purse-snatching robbery cases. — F. Supp. 3d —, 2017 WL 1506766 at *5-*10; see also
United States v. Nicholas, — F. App’x —, 2017 WL 1429788, at *3-*5 (10th Cir. Apr. 24, 2017)
(Kansas robbery does not categorically require use of Curtis Johnson physical force where
snatching purse from victim’s arm is sufficient to satisfy force element of offense). 11 Further,
New Mexico armed robbery, absent a firearm enhancement, requires only that the defendant be
“armed with” a deadly weapon but not necessarily that he “use” it, and so fails to elevate the
offense’s force element to the level of Curtis Johnson physical force. 12 King, — F. Supp. 3d —,
2017 WL 1506766 at *11-*15.

11

Unpublished decisions are not binding precedent in the Tenth Circuit, but may be cited for their persuasive value.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005).

12

The New Mexico Court of Appeals recently equated the terms “armed with a gun” and “use of a firearm” in the
context of armed robbery with firearm enhancement in New Mexico v. Cordova, an unpublished opinion. 2017 WL
1381935, ¶¶ 2-3 (N.M. Ct. App. Mar. 14, 2017). However, in Cordova, the court gave no indication that any party
had asked it to reconsider the published New Mexico cases indicating that the two terms are distinct, nor did the
court do so on its own initiative. See generally id. In general, cases are not authority for propositions not

11

Here, however, Defendant was convicted of the use of a firearm in the commission of an
armed robbery pursuant to Section 31-18-16. (PSR ¶ 28); N.M. Stat. Ann. § 31-18-16. In New
Mexico v. Trujillo, 1978-NMCA-041, 91 N.M. 641, 578 P.2d 342, the court explained that
“‘[u]se’ means, among other things, ‘to carry out a purpose or action by means of,’ to ‘make
instrumental to an end or process,’ and to “apply to advantage.’” Id. at ¶ 12. The Trujillo court
gave the following examples of “use” of a firearm:
The intentional firing of the gun is use of the firearm. The display of the gun in a
menacing manner as a means of accomplishing a robbery or the employment of
the gun to strike or “pistol whip” the victim is certainly “use” of the gun in the
commonly accepted definition of that term.
Id. at ¶ 13 (internal punctuation marks and citation omitted). Accordingly, the Trujillo court held
that the defendant in that case used a firearm within the meaning of the firearm enhancement
statute “when he used [a] shotgun as a club in committing aggravated battery.” Id. at ¶ 14.
The New Mexico Court of Appeals defined the outer limits of “use” of a firearm in New
Mexico v. Chouinard, 1979-NMCA-145, 93 N.M. 634, 603 P.2d 744.
While this court has previously held that the idea of “use” in this statute should be
construed broadly to include the use of a gun as a club, we do not stretch the
meaning of “use” to include “non-use.” . . . . The use of a firearm is something
beyond mere possession of it. . . . If the Legislature had intended the firearm
enhancement provision to apply whenever a person committing a felony was
armed, it would have written such a provision into the statute. Compare the New
Mexico armed robbery statute, s 30-16-2, N.M.S.A. (1978) (applicable to anyone
who “commits robbery while armed with a deadly weapon”).

considered. New Mexico v. Lucero, 2017-NMSC-008, ¶ 31, — N.M. —, 389 P.3d 1039. Moreover, the Cordova
court equated these two terms in the context of a double jeopardy analysis, in which the court compared armed
robbery and the firearm enhancement based on the prosecution’s “theory of the crime” in the case at issue, which in
Cordova involved the use of a firearm. New Mexico v. Gutierrez, 2011-NMSC-024, ¶¶ 57-59, 150 N.M. 232, 258
P.3d 1024. The categorical approach applicable here, in contrast, is concerned solely with the elements of these
crimes in the abstract. Moncrieffe, 133 S. Ct. at 1684; Harris, 844 F.3d at 1263.

12

Id. at ¶¶ 5-6 (internal citations omitted); see also Trujillo, 1978-NMCA-041 at ¶ 14, 91 N.M.
641, 578 P.2d 342 (“Similarly to the California courts, we have distinguished between armed
with a firearm and use of a firearm.”).
The foregoing authority demonstrates that, to support a conviction for armed robbery
with firearm enhancement, the state must prove that a defendant used or threatened to use
physical force to overcome a victim’s resistance to the defendant’s taking of her property from
her person or immediate control by means of a firearm. Curley, 1997-NMCA-038 at ¶¶ 4, 7, 10,
123 N.M. 295, 939 P.2d 1103; Trujillo, 1978-NMCA-041 at ¶ 12, 91 N.M. 641, 578 P.2d 342.
The Court proposes to find that such conduct always entails the use or threatened use of force
capable of causing physical pain or injury to another. Curtis Johnson, 559 U.S. at 140. Even if a
defendant merely displays a firearm in a menacing manner, rather than firing at or striking the
victim with it,
[t]hreatening or engaging in menacing conduct toward a victim, with a weapon
capable of producing death or great bodily harm, threatens the use of ‘violent
force’ because by committing such an act, the aggressor communicates to his
victim that he will potentially use ‘violent force’ against the victim in the nearfuture.
Ramon Silva, 608 F.3d at 670 (emphasis in original); see also United States v. MaldonadoPalma, 839 F.3d 1244, 1250 (10th Cir. 2016) (“Employing a weapon that is capable of producing
death or great bodily harm or inflicting dangerous wounds in an assault necessarily threatens the
use of physical force, i.e., ‘force capable of causing physical pain or injury to another person.’”).
The Court’s proposed finding is consistent with federal appellate decisions holding that
armed robbery is a violent felony under the ACCA’s elements clause where the actual or
threatened use of a dangerous or deadly weapon during the robbery is an element of the offense.
See, e.g., United States v. Redrick, 841 F.3d 478, 484 (D.C. Cir. 2016) (Maryland armed robbery

13

is a violent felony under ACCA’s elements clause; offense has as an element “use of a dangerous
or deadly weapon”); United States v. Smith, 638 F. App’x 216, 219 (4th Cir. 2016) (North
Carolina armed robbery is a violent felony under ACCA’s elements clause; offense has as an
element “use or threatened use” of dangerous weapon); United States v. Johnson, 530 F. App’x
528, 531-33 (6th Cir. 2013) (Tennessee armed robbery is a violent felony under ACCA’s
elements clause; offense has as an element use of or threat to use deadly weapon). As the
Redrick court explained, the
element of “use” of a dangerous or deadly weapon supplies at minimum a “threat”
of physical force against the person of another. And because the means employed
is a “dangerous or deadly weapon,” the required degree of force—that is, “violent
force”—is present.
841 F.3d at 484; cf. United States v. Parnell, 818 F.3d 974, 979-80 (9th Cir. 2016)
(Massachusetts armed robbery is not a violent felony under ACCA’s elements clause where
defendant “must possess a dangerous weapon” during the robbery but need not “generally or
openly display[]” or otherwise use it). For all of the above reasons, the Court proposes to find
that New Mexico armed robbery with firearm enhancement is a violent felony under the ACCA’s
elements clause, and recommends that Defendant’s claim to the contrary be dismissed with
prejudice.
B.

New Mexico voluntary manslaughter is a violent felony under the ACCA’s
elements clause.

Like armed robbery, voluntary manslaughter is not listed in the ACCA’s enumerated
offenses clause, and can no longer qualify as a violent felony under the Act’s residual clause. 18
U.S.C. § 924(e)(2)(B)(ii); Samuel Johnson, 135 S. Ct. at 2557, 2563. Thus, to constitute a
violent felony under the ACCA, New Mexico voluntary manslaughter must categorically have

14

“as an element the use, attempted use, or threatened use of physical force against the person of
another” within the meaning of the ACCA’s elements clause. 18 U.S.C. § 924(e)(2)(B)(i).
Under New Mexico law,
[m]anslaughter is the unlawful killing of a human being without malice.
A. Voluntary manslaughter consists of manslaughter committed upon a sudden
quarrel or in the heat of passion. Whoever commits voluntary manslaughter is
guilty of a third degree felony resulting in the death of a human being.
B. Involuntary manslaughter consists of manslaughter committed in the
commission of an unlawful act not amounting to a felony, or in the commission of
a lawful act which might produce death in an unlawful manner or without due
caution and circumspection. Whoever commits involuntary manslaughter is
guilty of a fourth degree felony.
N.M. Stat. Ann. § 30-2-3. 13
“[V]oluntary manslaughter is second-degree murder committed with sufficient
provocation.” New Mexico v. Jernigan, 2006-NMSC-003, ¶ 18, 139 N.M. 1, 127 P.3d 537.
“The difference between second degree murder and voluntary manslaughter is that voluntary
manslaughter requires sufficient provocation. Otherwise, the elements for both offenses are the
same.” New Mexico v. Gaitan, 2001-NMCA-004, ¶ 11, 130 N.M. 103, 18 P.3d 1056; see also
N.M. U.J.I. 14-220 (“The difference between second degree murder and voluntary manslaughter
is sufficient provocation. . . . Sufficient provocation reduces second degree murder to voluntary
manslaughter.”).
To convict of voluntary manslaughter, the jury must have evidence that there was
a sudden quarrel [or] heat of passion at the time of the commission of the crime,
to show that the killing was the result of provocation sufficient to negate the
presumption of malice.
New Mexico v. Reynolds, 1982-NMSC-091, ¶ 8, 98 N.M. 527, 650 P.2d 811.
13

Voluntary manslaughter and involuntary manslaughter not only have significantly different elements, but also
carry different punishments, and as such are two distinct offenses for purposes of determining whether they are
violent felonies under the ACCA. Mathis, 136 S. Ct. at 2256. In the present matter, the parties agree that
Defendant’s prior conviction was for voluntary manslaughter. (Doc. 13 at 7-8; Doc. 16 at 9 n.4.)

15

Like second degree murder, voluntary manslaughter is at a minimum a general intent
crime, though it may also be committed with specific intent. Jernigan, 2006-NMSC-003 at ¶ 18,
139 N.M. 1, 127 P.3d 537; New Mexico v. Campos, 1996-NMSC-043, ¶ 38, 122 N.M. 148, 921
P.2d 1266. “A general intent crime . . . requires . . . a conscious wrongdoing, or the purposeful
doing of an act that the law declares to be a crime.” New Mexico v. Brown, 1996-NMSC-073, ¶
22, 122 N.M. 724, 931 P.3d 69 (internal quotation marks omitted), not followed as dicta on other
grounds by New Mexico v. Suazo, 2017-NMSC-011, ¶¶ 17-23, — N.M. —, 390 P.3d 674. In
addition, second degree murder and voluntary manslaughter have a knowledge requirement, i.e.,
the defendant must actually know that his acts create a strong probability of death or great bodily
harm. Suazo, 2017-NMSC-011 at ¶ 16, — N.M. —, 390 P.3d 674. Consequently, “[a] negligent
or accidental killing could not satisfy the elements of second-degree murder” or voluntary
manslaughter. Id. at ¶ 23. Moreover, although the New Mexico courts have sometimes used the
word “reckless” to describe the mens rea of second degree murder and voluntary manslaughter,
they do so to describe the defendant’s state of mind regarding the result of his actions, i.e., the
victim’s death, and not his state of mind with respect to the actions themselves. See, e.g., New
Mexico v. Carrasco, 2007-NMCA-152, ¶ 7, 143 N.M. 62, 172 P.3d 611.
Accordingly, New Mexico’s Uniform Jury Instructions identify the following elements of
voluntary manslaughter:
1. The defendant killed _____________ (name of victim);
2. The defendant knew that his acts created a strong probability of death or great
bodily harm to [him] _____________ (name of victim) [or any other human
being];
3. The defendant acted as a result of sufficient provocation;
4. This happened in New Mexico on or about the ___ day of __________,
______.

16

N.M. U.J.I. 14-221. Sufficient provocation is defined as
[a]ny action, conduct or circumstances which arouse anger, rage, fear, sudden
resentment, terror or other extreme emotions. The provocation must be such as
would affect the ability to reason and to cause a temporary loss of self control in
an ordinary person of average disposition. The “provocation” is not sufficient if
an ordinary person would have cooled off before acting.
N.M. U.J.I. 14-222.
In addition, the relevant Use Notes indicate that Instruction 14-141 regarding general
criminal intent must be given when voluntary manslaughter is charged. N.M. U.J.I. 14-210, Use
Note 4; N.M. U.J.I. 14-221, Use Note 6. That instruction states:
[i]n addition to the other elements of ___________ (identify crime or crimes), the
state must prove to your satisfaction beyond a reasonable doubt that the defendant
acted intentionally when he committed the crime. A person acts intentionally
when he purposely does an act which the law declares to be a crime[, even though
he may not know that his act is unlawful]. Whether the defendant acted
intentionally may be inferred from all of the surrounding circumstances, such as
the manner in which he acts, the means used, [and] his conduct [and any
statements made by him].
N.M. U.J.I. 14-141.
In light of the authority just described, the Court proposes to find that New Mexico
voluntary manslaughter remains a violent felony under the ACCA post-Samuel Johnson. To be
convicted of voluntary manslaughter in New Mexico, a defendant must engage in intentional acts
by which he kills a human being, knowing that his acts create a strong probability of death or
great bodily harm, on a sudden quarrel or in the heat of passion with sufficient provocation.
N.M. Stat. Ann. § 30-2-3; Reynolds, 1982-NMSC-091 at ¶ 8, 98 N.M. 527, 650 P.2d 811; N.M.
U.J.I. 14-141; N.M. U.J.I. 14-221; N.M. U.J.I. 14-222. In the Court’s view, to satisfy these
elements, a defendant must necessarily “use physical force” within the meaning of the ACCA’s
elements clause.

17

[P]roof that a person caused the death of another human being under
circumstances which would otherwise be murder [absent serious provocation]
necessarily requires proof that the individual used force capable of causing
physical pain or injury.
United States v. Jackson, 655 F. App’x 290, 292-93 (6th Cir. 2016) (internal citations and
punctuation marks omitted).
Defendant asserts two arguments in opposition to this conclusion. First, Defendant
contends that New Mexico voluntary manslaughter does not require the use of “physical” force
because it is possible to kill someone without directly applying force to his body, for example, by
poisoning him. (Doc. 1 at 20-21; Doc. 16 at 10-13); cf. Curtis Johnson, 559 U.S. at 138 (“The
adjective ‘physical’ . . . refers to force exerted by and through concrete bodies,” as distinct from
“intellectual force or emotional force.”). The Supreme Court rejected a functionally identical
argument in Castleman:
[The defendant] errs in arguing that although poison 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 “sprink[ling]” 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.
134 S. Ct. at 1415 (internal citations and quotation marks omitted). In Castleman, the Supreme
Court was called upon to decide whether the Tennessee crime of assault against a family or
household member had as an element the use or attempted use of “physical force,” and therefore
qualified as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922. Id. at 1409.
Thus, the decision does not directly address whether an offense has as an element the actual,

18

attempted, or threatened use of “physical force” within the meaning of the ACCA’s elements
clause. However, its reasoning applies with equal force in this context.
In his reply, Defendant tacitly concedes that Castleman’s reasoning may foreclose his
argument as it applies to killings by means of “physical acts” of “indirect force.” (Doc. 16 at
10); but compare United States v. Armijo, 651 F.3d 1226, 1233 (10th Cir. 2011) (“[S]urreptitious
drugging of a victim does not involve the use of physical force.”) with De Leon Castellanos v.
Holder, 652 F.3d 762, 766 (7th Cir. 2011) (use of deceit to induce victim to take drug is “a fraud
on his will equivalent to force”) (citation omitted). However, Defendant maintains that New
Mexico’s voluntary manslaughter statute “allows for other possibilities,” specifically, killings by
means of “emotional or psychological manipulation, guile, or deception.” (Id. at 11 (citing
United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005).)
In so arguing, Defendant overlooks the significance of the requirement that voluntary
manslaughter be committed “upon a sudden quarrel or in the heat of passion” and “as a result of
sufficient provocation.” N.M. Stat. Ann. § 30-2-3; N.M. U.J.I. 14-221. In theory, it may be
possible to invent a scenario in which a defendant uses emotional manipulation, guile, or trickery
to kill someone without engaging in any physical acts, even though the defendant is in the throes
of an “extreme emotion[]” that “affect[s his] ability to reason” and from which “an ordinary
person would [not] have cooled off before acting.” N.M. U.J.I. 14-222. However, in the Court’s
view, this is at most a remote theoretical possibility, not a realistic probability. See Harris, 844
F.3d at 1264 (quoting Moncrieffe, 133 S. Ct. at 1685) (“[I]n construing the minimum culpable
conduct, such conduct only includes that in which there is a realistic probability, not a theoretical
possibility the state statute would apply.”). Realistically, a person in the grip of an emotion so
extreme that it impairs his ability to reason and causes him to lose self-control will not devise

19

and execute the kind of plan that would be necessary to kill someone solely by means of
intellectual or emotional force. Certainly, Defendant has cited to no New Mexico case involving
such a scenario.
Defendant’s reliance on Massachusetts v. Carter, 52 N.E.3d 1054 (Mass. 2016), does not
alter the Court’s conclusion on this point.

In Carter, the Supreme Judicial Court of

Massachusetts held that a juvenile could be charged with Massachusetts involuntary
manslaughter where the prosecution alleged that she engaged in a months-long “systematic
campaign” of verbal “coercion” that caused the victim to commit suicide. Id. at 1057-59, 1064.
Carter is clearly inapposite.

Most obviously, it addressed Massachusetts involuntary

manslaughter, not New Mexico voluntary manslaughter.

As a Massachusetts court’s

interpretation of a Massachusetts crime with elements quite distinct from New Mexico voluntary
manslaughter, see id. at 1060 & n.9, Carter sheds no light on what conduct would support a
voluntary manslaughter conviction in New Mexico.
Further, a defendant like the juvenile in Carter, who did not actively participate in an
overt act directly causing the victim’s suicide, could not properly be convicted of second degree
murder in New Mexico. See New Mexico v. Sexson, 1994-NMCA-004, ¶¶ 10, 17, 117 N.M. 113,
869 P.2d 301 (“[T]he difference between murder and aiding suicide [under N.M. Stat. Ann. § 302-4] generally hinges upon whether the defendant actively participates in the overt act directly
causing death, or whether he merely provides the means of committing suicide.”) (emphasis in
original). 14 Finally, the Carter scenario clearly does not involve a killing on a sudden quarrel or
in the heat of passion as a result of sufficient provocation. The juvenile in Carter, even if she
had initially been adequately provoked, could not have committed the extensive emotional

14

“Assisting suicide consists of deliberately aiding another in the taking of his own life. Whoever commits assisting
suicide is guilty of a fourth degree felony.” N.M. Stat. Ann. § 30-2-4.

20

manipulation alleged in that case before “an ordinary person would have cooled off.” N.M.
U.J.I. 14-222. In short, there is virtually no probability that the facts in Carter would support a
voluntary manslaughter conviction in New Mexico. Harris, 844 F.3d at 1264; Moncrieffe, 133
S. Ct. at 1685.
Defendant also contends that New Mexico voluntary manslaughter is not a violent felony
under the ACCA’s elements clause because it requires only reckless, rather than intentional or
purposeful, conduct. (Doc. 1 at 21-23; Doc. 16 at 13-15.) In so arguing, Defendant relies on
Armijo, in which the Tenth Circuit held that Colorado manslaughter was not a crime of violence
under Section 4B1.2 of the United States Sentencing Guidelines. 651 F.3d at 1233-37; see also
United States v. Rivera-Muniz, 854 F.3d 1047, 2017 WL 1404193, at *3 (9th Cir. Apr. 20, 2017)
(California voluntary manslaughter is not a crime of violence under elements clause of U.S.S.G.
§ 2L1.2 because “California permits a conviction for voluntary manslaughter with a mens rea of
recklessness”); Perez-Vargas, 414 F.3d at 1285-87 (Colorado third degree assault, which has a
mens rea of recklessness or criminal negligence, is not a crime of violence under elements clause
of U.S.S.G. § 2L1.2). As Defendant observes, the Armijo court held that “in interpreting the
language of, or language identical to that used in § 4B1.2(a), this court has specifically held that
only those crimes with a mens rea of intent or purpose qualify as crimes of violence.” 15 Id. at
1234. More specifically, the Armijo court held that “only those versions of manslaughter that
involve intentional or purposeful behavior qualify as crimes of violence for purposes of §
4B1.2(a).” Id. at 1237.
In so holding, the Armijo court relied, inter alia, on its earlier decision in United States v.
Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008), which in turn relied on Leocal v. Ashcroft, 543 U.S.

15

In Armijo, the Tenth Circuit noted that “[t]he definition of ‘violent felony’ under the first-prong of the ACCA and
‘crime of violence’ under § 4B1.2(a) are nearly identical.” Id. at 1231 n.3.

21

1 (2004). Armijo, 651 F.3d at 1234; Zuniga-Soto, 527 F.3d at 1123-24. In Leocal, the Supreme
Court held that, to constitute a crime of violence under the elements clause of 18 U.S.C. § 16(a),
an offense must require proof of “a higher degree of intent than negligent or merely accidental
conduct.” 543 U.S. at 9. The Tenth Circuit quoted Leocal at some length in Zuniga-Soto:
[n]oting that a crime of violence must be one that involves the “use of physical
force,” the [Supreme] Court observed that “‘use’ requires active employment.”
The Court explained
While one may, in theory, actively employ something in an
accidental manner, it is much less natural to say that a person
actively employs physical force against another person by
accident. Thus a person would ‘use physical force against’ another
when pushing him; however, we would not ordinarily say a person
‘uses physical force against’ another by stumbling and falling into
him.
527 F.3d at 1123 (emphases, internal citations, and internal punctuation marks omitted) (quoting
Leocal, 543 U.S. at 9). The Zuniga-Soto court determined that “recklessness falls into the
category of accidental conduct that the Leocal Court described as failing to satisfy the use of
physical force requirement under either of § 16’s definitions of ‘crime of violence.’” Id. at 1124.
As such, the Court agrees with Defendant that, under Tenth Circuit law, New Mexico voluntary
manslaughter must categorically require “intentional” or “purposeful” conduct to qualify as a
violent felony under the ACCA’s elements clause. But see Voisine v. United States, — U.S. —,
136 S. Ct. 2272, 2280 (2016) (“A person who assaults another recklessly ‘use[s]’ force, no less
than one who carries out that same action knowingly or intentionally,” within the meaning of 18
U.S.C. § 921(a)(33)(A)).
However, the Court disagrees with Defendant’s contention that New Mexico law permits
less than “intentional” conduct to support a voluntary manslaughter conviction. The Court finds
Ramon Silva instructive on this point. In Ramon Silva, the Tenth Circuit held that New Mexico

22

“apprehension causing” aggravated assault qualifies as a violent felony under the ACCA’s
elements clause.

608 F.3d at 672-73.

In so holding, the Ramon Silva court rejected the

defendant’s argument that the offense did not satisfy the elements clause because it did not “have
as an element an intent to assault, injure or frighten.” Id. The Ramon Silva court concluded that
the defendant had been convicted of “intentional conduct” because New Mexico
“‘[a]pprehension causing’ aggravated assault requires proof of general criminal intent.” Id. at
673.
That aggravated assault does not require proof of a specific intent to assault the
victim, or of a specific intent to injure or even frighten the victim, only confirms
that aggravated assault is not a specific intent crime, but rather is a general intent
crime.
Id. (internal citations and punctuation marks omitted).
As noted above, New Mexico voluntary manslaughter requires proof of at least general
criminal intent. Jernigan, 2006-NMSC-003 at ¶ 18, 139 N.M. 1, 127 P.3d 537; Campos, 1996NMSC-043 at ¶ 38, 122 N.M. 148, 921 P.2d 1266. In other words, to be convicted of New
Mexico voluntary manslaughter, a defendant must intentionally engage in the acts by which he
kills the victim. N.M. U.J.I. 14-141. According to Ramon Silva, proof of such general criminal
intent is sufficient to satisfy the ACCA’s elements cause; specific intent is not required. 608
F.3d at 672-73.
Justice Thomas’ dissenting opinion in Voisine, in which Justice Sotomayor joined,
provides a useful framework for understanding the mens rea of New Mexico voluntary
manslaughter, and why the Tenth Circuit held that an equivalent mens rea was sufficient to
satisfy the elements clause in Ramon Silva. According to Justice Thomas, there are
[t]hree different types of intentional and reckless force resulting in physical
injury. . . . The first category includes all cases where a person intentionally
creates force and desires or knows with a practical certainty that that force will

23

cause harm. . . . The second category involves a person who intentionally
unleashes force that recklessly causes injury. . . . Finally . . . a person could
recklessly unleash force that recklessly causes injury.
136 S. Ct. at 2285-87. Justices Thomas and Sotomayor agreed with the Voisine majority that the
first two categories should constitute the “use” of physical force within the meaning of 18 U.S.C.
921(a)(33)(A). 16 Id. As the majority explained,
[d]ictionaries consistently define the noun “use” to mean the “act of employing”
something. On that common understanding, the force involved in a qualifying
assault must be volitional; an involuntary motion, even a powerful one, is not
naturally described as an active employment of force. But the word “use” does
not demand that the person applying force have the purpose or practical certainty
that it will cause harm, as compared with the understanding that it is substantially
likely to do so. Or, otherwise said, that word is indifferent as to whether the actor
has the mental state of intention, knowledge, or recklessness with respect to the
harmful consequences of his volitional conduct.
Id. at 2278-79 (internal citations and quotations omitted). This reasoning is equally meaningful
in the context of the ACCA’s elements clause, which also requires the “use” of physical force.
18 U.S.C. § 924(e)(2)(B)(i).
At a minimum, New Mexico voluntary manslaughter falls into the second category
Justice Thomas identified in Voisine, in which a defendant “intentionally employ[s] force, but
recklessly cause[s] physical injury with that force.” 17 Id. at 2286 (emphases in original). To
commit voluntary manslaughter, the defendant must intentionally engage in acts that kill
someone, and must do so knowing of the strong probability that his acts will in fact kill or
gravely injure. According to Ramon Silva, and consistent with the reasoning in Voisine, such

16

As previously noted, the majority in Voisine held that “[a] person who assaults another recklessly ‘use[s]’ force,
no less than one who carries out that same action knowingly or intentionally,” within the meaning of 18 U.S.C. §
921(a)(33)(A). 136 S. Ct. at 2280. The dissent disagreed that recklessly creating force that recklessly causes injury
should constitute the “use” of force within the meaning of Section 921(a)(33)(A). Id. at 2286.
17

Where second degree murder and voluntary manslaughter are committed with specific intent, i.e., the intent to kill
or gravely injure, Jernigan, 2006-NMSC-003 at ¶ 18, 139 N.M. 1, 127 P.3d 537, however, they fall into Justice
Thomas’ first category, in which “a person intentionally creates force and desires or knows with a practical certainty
that that force will cause harm.” 136 S. Ct. at 2285.

24

conduct constitutes an intentional “use” of physical force under the ACCA. Ramon Silva, 608
F.3d at 672-73; Voisine, 136 S. Ct. at 2280, 2286. For these reasons, the Court proposes to reject
Defendant’s arguments that New Mexico voluntary manslaughter does not require the intentional
use of physical force within the meaning of the ACCA’s elements clause, and to find that New
Mexico voluntary manslaughter remains a violent felony under the ACCA post-Samuel Johnson.
III.

CONCLUSION
The Court proposes to find that New Mexico armed robbery with firearm enhancement

and New Mexico voluntary manslaughter qualify as violent felonies under the ACCA’s elements
clause, and thus, that the application of the ACCA to Defendant’s sentence based on his prior
convictions for these offenses remains proper after Samuel Johnson.

Consequently, the

undersigned recommends that the Court DENY Defendant’s Section 2255 Motion and DISMISS
this case WITH PREJUDICE.

______________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 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 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. If no objections are filed, no appellate review will be allowed.

25