Dallas v. United States of America

Filing 15

PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION re 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Michael Dallas by Magistrate Judge Laura Fashing. Objections to PF&RD due by 5/17/2017. 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).) (LF)

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

Nos.

CR 05-1160 MV
CIV 16-0676 MV/LF

MICHAEL DALLAS,
Defendant/Movant.
PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Michael Dallas’s Expedited Motion to
Correct Sentence Pursuant to 28 U.S.C. § 2255. Doc. 66. 1 The Honorable Martha Vázquez
referred this case to me to recommend to the Court an ultimate disposition of the case. No. CIV
16-0676 MV/LF, Doc. 5. Having reviewed the submissions of the parties and the relevant law, I
recommend that the Court deny Dallas’s motion.
I.

Background Facts and Procedural Posture
On June 13, 2006, Dallas pled guilty to a one-count superseding indictment. See Docs.

27, 42, 43. The superseding indictment charged Dallas with being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). The probation
officer who prepared Dallas’s presentence report (“PSR”) determined that Dallas’s base offense
level was 24 under USSG 2 § 2K2.1(a)(2) because Dallas committed the offense after having
sustained at least two prior felonies that were crimes of violence. PSR ¶ 14. Dallas received a

1

Citations to “Doc.” are to the document number in the criminal case, case number CR 05-1160
MV, unless otherwise noted.

2

Dallas was sentenced using the 2005 version of the Sentencing Guidelines. See PSR ¶ 13. All
references to the Guidelines are to the 2005 version unless otherwise noted.

two-level enhancement pursuant to USSG § 3C1.2 for reckless endangerment during flight
because he fled from law enforcement officers and resisted being placed in handcuffs during his
arrest. PSR ¶ 18. However, because Dallas had three prior violent felony convictions, the
probation officer determined that Dallas was subject to an enhanced sentence as an armed career
criminal under USSG § 4B1.4 and 18 U.S.C. § 924(e). PSR ¶ 20. Consequently, Dallas’s
offense level became 33. Id. He received a three-level reduction for acceptance of responsibility
under USSG § 3E1.1. PSR ¶ 21. His total offense level was 30, and his history category was VI,
which resulted in an advisory guideline sentencing range of 168 to 210 months in prison. PSR
¶¶ 22, 35, 74. But because Dallas was considered an armed career criminal under 18 U.S.C.
§ 924(e)(1), he was subject to a mandatory minimum sentence of 180 months in prison, and his
guideline imprisonment range therefore was 180 to 210 months. PSR ¶ 74.
Neither party objected to the PSR. See Docs. 45, 46. On September 27, 2006, the Court
sentenced Dallas to the minimum mandatory sentence of 180 months in prison and entered its
judgment the same day. See Doc. 47 at 1. In October 2008, Dallas filed a Motion to Vacate
under 28 U.S.C. § 2255, which the Court dismissed as untimely. See Docs. 52, 59, 60. On June
6, 2016, the Tenth Circuit authorized Dallas to file a second or successive 28 U.S.C. § 2255
motion to raise a claim under the Supreme Court’s decision in Johnson v. United States, 135 S.
Ct. 2551 (2015). Doc. 64. On June 24, 2016, Dallas timely filed an Expedited Motion to Correct
Sentence Pursuant to 28 U.S.C. § 2255 (and Johnson v. United States). Doc. 66. The
government filed its response on August 29, 2016, Doc. 71, and Dallas filed his reply on
December 14, 2016, Doc. 78.

2

II.

Dallas’s Claims and the Government’s Response
Dallas raises a single issue in his motion. He argues that because the Supreme Court held

in Johnson that the Armed Career Criminal Act’s (ACCA’s) “residual clause” is
unconstitutionally vague, his three prior felony aggravated battery convictions under New
Mexico law no longer qualify as violent felonies. Doc. 66 at 2–7. This argument necessarily
depends on a determination that the only way that his prior aggravated battery convictions
qualified as violent felonies was because they fell within ACCA’s residual clause, and that they
did not qualify under the “elements clause.” In response, the government argues that Dallas has
not met his burden of establishing that the Court relied on the residual clause in sentencing him,
and that the Court should deny his motion on that basis. Doc. 71 at 3–5. The government further
argues that if the Court reaches the merits of Dallas’s claim, Dallas’s three prior aggravated
battery convictions qualify as violent felonies under ACCA’s “elements clause.” Id. at 5–14.
III.

Discussion
As an initial matter, neither the PSR nor the sentencing Court specified whether it was

relying on the residual clause in concluding that Dallas was subject to ACCA. See generally
PSR; Doc. 57. Thus, the only way that Dallas can establish that the sentencing Court relied on
the residual clause is to establish that his prior aggravated battery convictions do not qualify as
violent felonies under ACCA in any other way. The Court consequently will address the merits
of Dallas’s motion.
A.

The Categorical and Modified Categorical Approach to Determining Whether a
Crime is a Violent Felony under ACCA

ACCA provides, in pertinent part, that “[i]n the case of a person who violates section
922(g) of this title and has three previous convictions . . . for a violent felony . . . committed on
occasions different from one another, such person shall be . . . imprisoned not less than fifteen

3

years . . . .” 18 U.S.C. § 924(e)(1). “[T]he 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 [the “elements clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [the “enumerated clause”], or
otherwise involves conduct that presents a serious potential risk of physical injury to another [the
“residual clause”] . . . .” 18 U.S.C. § 924(e)(2)(B). In Johnson v. United States, 135 S. Ct. 2551,
2563 (2015), the Supreme Court struck down the residual clause as unconstitutionally vague, but
it left intact the elements clause and the enumerated clause. The following year the Court held
that Johnson announced a substantive rule that applied retroactively on collateral review. Welch
v. United States, 136 S. Ct. 1257, 1268 (2016). Thus, the issue properly before the Court in this
case is whether Dallas’s prior convictions still qualify as violent felonies under ACCA.
The parties agree that Dallas has three prior felony convictions for aggravated battery
under N.M. STAT. ANN. §§ 30-3-5(A) and (C). See Doc. 66 at 1–2; Doc. 71 at 2, 9–10 & Exhs.
1–5. They also agree that these convictions do not fall within ACCA’s enumerated clause. See
Doc. 66 at 3; Doc. 71 at 5. Thus, to qualify as an armed career criminal, Dallas’s three prior
aggravated battery convictions must satisfy the elements clause, that is, the crime of aggravated
battery under N.M. STAT. ANN. §§ 30-3-5(A) and (C) must have “as an element the use,
attempted use, or threatened use of physical force against the person of another.” 18 U.S.C.
§ 924(e)(2)(B)(i).
The Court must apply the “categorical approach” to determine whether a prior conviction
falls within ACCA’s elements clause. Descamps v. United States, 133 S. Ct. 2276, 2283 (2013).
This means that the Court must look only to the elements of the statute under which the
defendant was convicted, not at the facts underlying the prior conviction. See Mathis v. United

4

States, 136 S. Ct. 2243, 2253 (2016); Descamps, 133 S. Ct. at 2283. If the “least of the acts
criminalized” by the statute does not have as an element the actual, attempted, or threatened use
of violent force or a substantial degree of force against another person, then the defendant’s
conviction under that statute is not a violent felony within the meaning of the elements clause.
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (quotation omitted and alteration adopted).
Thus, when applying the categorical approach, the Court must identify the least culpable conduct
prohibited by the statute of conviction and presume that the defendant’s conviction rested on
nothing more than this conduct. Id. To identify the least culpable conduct, the Court looks to
how state courts interpret the statute. See United States v. Harris, 844 F.3d 1260, 1264 (10th
Cir. 2017) (“state law defines the substantive elements of the crime of conviction”). As part of
this step, the Court must analyze “the version of state law that the defendant was actually
convicted of violating.” McNeill v. United States, 563 U.S. 816, 821 (2011).
The Supreme Court held in an earlier Johnson case—Johnson v. United States, 559 U.S.
133, 140 (2010) 3—that the term “physical force” as used in the elements clause of ACCA
“means violent force—that is, force capable of causing physical pain or injury to another
person.” (Emphasis in original.) Nonetheless, the force required to satisfy that element need not
be sufficient to cause serious injury—it “might consist . . . of only that degree of force necessary
to inflict pain—a slap in the face, for example.” Id. at 1272. Therefore, in evaluating whether
Dallas’s prior aggravated battery convictions under New Mexico law constitute violent felonies
under ACCA, the Court first must consider whether the state statute that he violated necessarily
proscribes conduct that “has as an element the use, attempted use, or threatened use of” violent

3

To avoid confusion, this case will be referred to as Johnson I to distinguish it from the 2015
Johnson opinion striking down the residual clause of ACCA (hereinafter referred to as Johnson
II).
5

force against the person of another. If so, it is categorically a “violent felony” under the
elements clause of ACCA.
If, however, the statutory definition of aggravated battery under New Mexico law is
broader than ACCA’s definition of “violent felony,” and if the statute is “divisible,” the Court
then will apply what is known as a “modified‐categorical approach.” United States v. Ramon
Silva, 608 F.3d 663, 669 (10th Cir. 2010); see also Mathis, 136 S. Ct. at 2249, 2256. Under this
approach, the Court should consult “charging documents and documents of conviction to
determine whether the defendant in a particular case was convicted of an offense that qualifies as
a violent felony.” Id.
B.

Dallas’s Three Prior Convictions for Aggravated Battery are Violent Felonies
under ACCA.

New Mexico’s aggravated battery 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.
N.M. STAT. ANN. § 30‐3‐5.
The minimum culpable conduct under this statute requires the unlawful touching of
another with the intent to injure that person. N.M.S.A. § 30‐3‐5(A). One could conclude that the
unlawful touching of a person with the intent to injure that person qualifies under Johnson I as
the threatened use of “force capable of causing physical pain or injury to another person.” 559
U.S. at 140; see State v. Vallejos, 2000-NMCA-075, ¶ 18, 129 N.M. 424, 430, 9 P.3d 668, 674
(“The aggravated battery statute is directed at preserving the integrity of a person’s body against
6

serious injury.”). However, because Dallas was convicted of the more serious felony version of
aggravated battery under subsection C, the Court need not decide that question.
Because the statute differentiates between misdemeanor offenses in subsection B and
third degree felonies in subsection C, it is divisible. Mathis, 136 S. Ct. at 2256 (“If statutory
alternatives carry different punishments, then under Apprendi they must be elements.”). Dallas
was convicted of aggravated battery in violation of N.M. STAT. ANN. § 30‐3‐5(C). See Doc. 71-2
(plea agreement listing offenses to which Dallas pled guilty). Section 30-3-5(C) requires proof
of one of the following: (i) that the battery caused great bodily harm; (ii) that the battery was
accomplished with the use of a deadly weapon; or (iii) that the battery was accomplished in a
manner whereby great bodily harm could be inflicted. N.M. STAT. ANN. § 30-3-5(C); see also
N.M. R. ANN., CRIM. UJI 14-322, 14-323 (essential elements instructions for felony versions of
aggravated battery). Although state court documents specify that Dallas’s aggravated battery
convictions involved either great bodily harm or the use of a deadly weapon, or both, see Docs.
71-1 to 71-5, it is unclear whether subsection C is itself divisible under Mathis, or whether the
three options listed in § 30-3-5(C) are merely alternative means of committing third degree
aggravated battery. 4 The Court need not decide that question because no matter how committed,
a third degree aggravated battery in violation of N.M. STAT. ANN. § 30‐3‐5(C) qualifies as a
violent felony under Johnson I.
First, an unlawful touching of a person with the intent to injure that person, and that
either causes great bodily harm to the person or is otherwise accomplished in a manner whereby
great bodily harm could be inflicted, is a violent felony. State law defines “great bodily harm” as
“an injury to the person which creates a high probability of death; or which causes serious
4

Indeed, the government takes the position that the subsection C is not divisible under Mathis.
Doc. 71 at 11.
7

disfigurement; or which results in permanent or protracted loss or impairment of the function of
any member or organ of the body.” N.M. STAT. ANN. § 30‐1‐12(A). Because the battery caused
great bodily harm or was done in a manner whereby great bodily harm could be inflicted, the
battery necessarily involved “force capable of causing physical pain or injury to another person”
as required by Johnson I. 559 U.S. at 140.
The Tenth Circuit’s decision in United States v. Maldonado‐Palma, 839 F.3d 1244 (10th Cir.

Aggravated battery with a deadly weapon also qualifies as a violent felony under ACCA.

2016) is determinative on this point. In Maldonado‐Palma, the court considered whether a New
Mexico conviction for aggravated assault with a deadly weapon categorically constituted a

“crime of violence” for the purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). 5 Id. at 1246–50. The
sentencing guidelines definition of “crime of violence” is identical to the relevant ACCA
See United States v. Ventura‐Perez, 666 F.3d 670, 673 (10th Cir. 2012). In Maldonado‐Palma,
provision and also is interpreted pursuant to the modified categorical approach outlined above.

the court first confirmed that, under New Mexico law, aggravated assault with a deadly weapon
requires use of the deadly weapon—mere possession does not suffice to satisfy the elements.
839 F.3d at 1249–50. After reviewing the New Mexico definition of “deadly weapon,” the court
concluded that employing such a weapon “necessarily threatens the use of physical force, i.e.,
‘force capable of causing physical pain or injury to another person.’” Id. at 1250 (quoting
Johnson I, 559 U.S. at 140); see also Ramon Silva, 608 F.3d. at 669–71.

5

The guideline amendments made effective November 1, 2016 eliminated the relevant text of
this portion of the guidelines, which previously instructed the sentencing court to increase a
defendant’s base offense level if “the defendant previously was deported, or unlawfully remained
in the United States, after a conviction for a felony that is . . . a crime of violence . . . .” See
Amendment 802, USSG App. C, Supp. (Nov. 1, 2016). The amendment does not affect this
analysis.

8

As with aggravated assault with a deadly weapon, aggravated battery with a deadly
weapon under New Mexico law requires proof of the use of a deadly weapon, not mere
possession. See N.M. STAT. ANN. § 30‐3‐5(C); see also N.M. R. ANN., CRIM. UJI 14‐322
(instructing that aggravated battery with a deadly weapon requires proof that the defendant
deadly weapon (emphasis added)). The logic in Maldonado‐Palma therefore compels the

“touched or applied force to” the victim with a deadly weapon and that “[t]he defendant used” a

conclusion that a New Mexico conviction for aggravated battery with a deadly weapon

categorically qualifies as a violent felony under ACCA. 6 The fact that the Supreme Court itself
in Johnson I cited with approval Black’s definition of “violent felony” as “a crime characterized
by extreme physical force, such as . . . assault and battery with a dangerous weapon” in parsing
the meaning of the ACCA’s force clause further supports this conclusion. 559 U.S. at 140–41
(emphasis added).
Thus, all three of the means by which one can violate N.M. STAT. ANN. § 30‐3‐5(C)
satisfy the force requirement set out in Johnson I. As such, Dallas’s three prior convictions
under N.M. STAT. ANN. § 30‐3‐5(C) categorically constitute violent felonies under the ACCA.
Dallas argues that the Tenth Circuit’s decision in United States v. Barraza-Ramos, 550
F.3d 1246 (10th Cir. 2008) compels a different result. Doc. 66 at 6–7. In that case, the court
evaluated whether a Florida aggravated battery statute that prohibited “actually and intentionally
touching a pregnant woman against her will, actually and intentionally striking a pregnant
woman against her will, or intentionally causing a pregnant woman bodily harm” constituted a
crime of violence under the guidelines. Id. at 1249. Because the least culpable conduct in that
statute involved merely “touching” a pregnant woman against her will, it did not necessarily

In fact, given that Maldonado‐Palma involved only an assault, and Dallas’s conviction involved
a completed battery, the logic applies with even greater force here.
6

9

involve the use of “physical force.” See id. at 1251. As the government points out, see Doc. 71
at 13–14, the statute at issue here is quite different. It requires the unlawful touching of another
person with the intent to injure that person, and that the touching either causes great bodily harm;
(ii) is accomplished with the use of a deadly weapon; or (iii) is accomplished in a manner
whereby great bodily harm could be inflicted. Thus, the unlawful touching required under New
Mexico’s aggravated battery statute necessarily involves the use of violent, physical force.
Dallas also argues that New Mexico’s aggravated battery statute is not divisible, and that
the Court may not look beyond § 30-3-5(A) to determine the elements of the crime. Doc. 78 at
9–11. This argument simply cannot be squared with the Supreme Court’s statement in Mathis
that “[i]f statutory alternatives carry different punishments, then under Apprendi they must be
elements.” 136 S. Ct. at 2256. Because subsection 30-3-5(B) defines a misdemeanor violation
of the aggravated battery statute, and subsection 30-3-5(C) defines the third degree felony
violation of the statute, those “alternatives carry different punishments” and “they must be
elements.” Mathis, 136 S. Ct. at 2256. Therefore, the modified categorical approach is
applicable, and the Court must evaluate the least culpable conduct that would satisfy subsections
A and C, together. Under the modified categorical approach, Dallas’s three prior convictions for
aggravated battery under N.M. Stat. Ann. §§ 30-3-5(A) and (C) are violent felonies under
ACCA.
IV.

Recommendation
I recommend that the Court DENY Dallas’s motion. All of Dallas’s three prior

aggravated battery convictions under New Mexico law are violent felonies under ACCA. He
therefore is subject to ACCA’s fifteen-year mandatory minimum sentence, which is the sentence
he received.

10

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.

_______________________
Laura Fashing
United States Magistrate Judge

11