Griego v. United States of America
ORDER by District Judge Judith C. Herrera Overruling Petitioner's Objections, Adopting Report and Recommendations 15 , and Denying Petitioner's Motion 1 (baw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
CV 16-682 JCH/GJF
CR 14-591 JCH
ORDER OVERRULING PETITIONER’S OBJECTIONS, ADOPTING MAGISTRATE
JUDGE’S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, AND
DENYING PETITIONER’S MOTION
This matter is before the Court on Petitioner’s Objections to the Magistrate Judge’s
Proposed Findings and Recommended Disposition. Doc. 16. To the extent explained herein, the
Court will overrule the objections, adopt the Proposed Findings and Recommended Disposition
(Doc. 15), and deny Petitioner’s Motion (Doc. 1).
On February 26, 2014, Petitioner and a co-defendant were charged by indictment with
one count of conspiring to distribute more than 5 grams of methamphetamine and two counts of
distributing more than 5 grams of methamphetamine. Cr. Doc. 1. The grand jury later returned a
Superseding Indictment against the original defendants and a third defendant, but the charges
against Petitioner remained the same. Cr. Doc. 19. On September 10, 2014, Petitioner pleaded
guilty to the conspiracy charge (Count 1) pursuant to a written plea agreement. Cr. Docs. 58, 65.
The parties stipulated pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) that the
“appropriate sentence in this case is 120 months” of imprisonment. Id. ¶ 10a.
The Presentence Investigation Report (hereafter “PSR”) recommended that the Court find
that Petitioner was a career offender under U.S.S.G. § 4B1.1. In making this recommendation,
the PSR emphasized that the instant offense was a controlled substance offense and that
Petitioner had a previous federal conviction for a controlled substance offense (CR 98-988 BB,
D.N.M.) and a previous state aggravated assault with a deadly weapon conviction
(D202CR201302614, 2nd Judicial District Court, NM). PSR ¶ 29. The PSR recommended an
adjusted offense level of 31, a criminal history category of VI, and a resulting guideline
imprisonment range of 188-235 months. PSR ¶¶ 37, 57-58, 101. In its final paragraph, the PSR
concluded that “[b]ased on the above factors, and in consideration of 18 U.S.C. § 3553(a)(1)-(7),
a sentence of 120 months custody in accordance with the Rule 11(c)(1)(C) plea agreement
appears to be an appropriate sentence in this case.” PSR ¶ 119. Petitioner filed no objections to
On March 10, 2015, the Court held a sentencing hearing (Cr. Doc. 90) at which it
accepted the Rule 11(c)(1)(C) plea agreement and sentenced Petitioner to a 120-month term of
imprisonment. Tr. 9, 11. The Court pronounced itself “satisfied that the agreed sentence is
justified,” even though it represented a substantial variance from the guideline imprisonment
range that Petitioner would otherwise have been subjected to as a career offender. Tr. 11. There
was no discussion at the hearing about how or why Petitioner’s current and prior convictions
qualified him as a career offender under § 4B1.1. The Court filed its Amended Judgment on
March 12, 2015. Cr. Doc. 94. Petitioner did not appeal his sentence.
In his Motion, Petitioner argues that his prior New Mexico state conviction for
aggravated assault against a household member with a deadly weapon no longer qualifies as a
“crime of violence” in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Doc. 1 at 3. He
further contends that Johnson should apply retroactively to reduce the adjusted guideline range
he would have faced from 188-235 months to 77-96 months. Id. at 4. He asserts that his 120month sentence should be vacated because he never would have agreed to a sentence that was 24
months longer than the top end of what should have been the appropriate range. Id. at 2.
In opposition, the United States contends that New Mexico’s aggravated assault with a
deadly weapon statute remains a crime of violence irrespective of Johnson, because it has “as an
element the use, attempted use, or threatened use of physical force against the person of
another.” Doc. 5 at 3 (quoting U.S.S.G. § 4B1.2(a)(1)). Furthermore, the United States asserts
that Johnson does not have retroactive application to Sentencing Guidelines cases pending on
collateral review. Doc. 5 at 5-13.
On January 20, 2017, the Magistrate Judge filed his Proposed Findings and
Recommended Disposition (PFRD). Doc. 15. He first concluded that the application of Johnson
to the guidelines would not have retroactive effect under the Teague analysis, because it would
be a non-watershed procedural rule. See id. 5-11. Therefore, he recommended denying
Petitioner’s motion on that ground. Nonetheless, in case the Court disagreed with the
recommendation regarding non-retroactivity, he considered whether Petitioner’s conviction for
New Mexico aggravated assault with a deadly weapon remains a “crime of violence” under
U.S.S.G. § 4B1.2(a)(1), even after redacting its residual clause. On that issue, he concluded that
a recent Tenth Circuit decision has definitively answered that question in a manner that binds
this Court. See id. 12-15. The Magistrate Judge recommended that Petitioner’s Motion be
denied for both separate and independent reasons.
On February 1, 2017, Petitioner timely filed his objections to the PFRD. Doc. 16. First,
Petitioner objects to the PFRD’s recommendation that Johnson be held not to apply retroactively
to collateral attacks on sentences imposed under the Sentencing Guidelines. Id. at 2-11. He also
objects to the PFRD’s recommendation that the Court hold that the New Mexico aggravated
assault with a deadly weapon statute remains a crime of violence under U.S.S.G. § 4B1.1 even
after Johnson. On that point, Petitioner essentially concedes that this Court is bound by a recent
Tenth Circuit decision, but persists in his objection to preserve his ability to further appeal that
decision. Id. at 11-12. The United States filed no objections.
II. LEGAL STANDARD APPLICABLE TO OBJECTION
Petitioner’s Motion (Doc. 1) was referred to Magistrate Judge Fouratt pursuant to 28
U.S.C. § 636(b)(1)(B). See Doc. 9. Under that referral provision, the Court’s standard of review
of any objections to a magistrate judge’s PFRD is de novo. See 28 U.S.C. § 636(b)(1)(C). When
resolving objections to a PFRD, “[t]he district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.” Fed. R. Civ. P. 72(b)(3). The Tenth Circuit has held
“that a party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve an issue for de novo review by the district court or for appellate
review.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). “[A]n objection
must be sufficiently specific to focus the district court’s attention on the factual and legal issues
that are truly in dispute[.]” Id. at 1060. When neither party objects to a finding or
recommendation, no further review by the district court is required. See Thomas v. Arn, 474 U.S.
140, 151-52 (1985). “Issues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).
III. PETITIONER’S CLAIM IS NO LONGER COGNIZABLE UNDER 28 U.S.C. § 2255
After Petitioner filed his objections to the PFRD, the United States Supreme Court issued
its decision in Beckles v. United States, 580 U.S. ___ (2017).1 In holding that “void for
vagueness” claims under the Due Process Clause may not be levied against the United States
No. 15-8544, 2017 WL 855781 (U.S. Mar. 6, 2017).
Sentencing Guidelines, the Supreme Court has effectively barred Petitioner’s claims. This Court
will deny his motion on the basis of Beckles.
III. NEW MEXICO’S AGGRAVATED ASSAULT WITH DEADLY WEAPON STATUTE
REMAINS A “CRIME OF VIOLENCE”
In addition, and in its discretion, the Court will deny the motion on the alternative ground
that New Mexico’s aggravated assault with a deadly weapon statute remains a crime of violence
even after Johnson. In United States v. Maldonado-Palma, a case decided after the principal
briefing on Petitioner’s Motion was completed, the Tenth Circuit held that New Mexico’s
aggravated assault with a deadly weapon statute (N.M.S.A. § 30-3-2(A)) is categorically a crime
of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015). 839 F.3d 1244, 1248-50 (10th Cir.
2016). Specifically, the court held that this statute “has as an element the use, attempted use, or
threatened use of physical force against the person of another.” Id. at 1244 (quoting U.S.S.G. §
2L1.2 (cmt. n.1(B)(iii)).2
In his objections, Petitioner essentially concedes that Maldanado-Palma has foreclosed
his argument that his state conviction is no longer a crime of violence. Doc. 16 at 11-12.
Petitioner acknowledges that he persists in this objection only “to preserve this issue for future
litigation[.]” Id. at 12. For obvious reasons, the Court is bound to follow Maldanado-Palma.
Consequently, even if sentenced again post-Johnson, Petitioner would remain a career offender
under U.S.S.G. § 4B1.1 because he has at least three qualifying convictions as chronicled in his
PSR. Petitioner would still be subject to a sentencing range substantially in excess of the 120month term to which he and the Government agreed.
For the foregoing reasons, the Court holds that the Supreme Court’s decision in Beckles
That language is identical to that used in the force clause of § 4B1.2(a)(1) that applies to career offenders like
has barred Petitioner’s claim that the residual clause under U.S.S.G. § 4B1.2(a)(2) is void for
vagueness. The Court further holds that New Mexico’s statute that prohibits aggravated assault
against a household member with a deadly weapon remains a crime of violence under U.S.S.G. §
4B1.2(a)(1). Therefore, Petitioner remains a career offender under § 4B1.1. Accordingly, the
Court overrules Petitioner objections to the contrary and orders that Petitioner’s motion is
DENIED WITH PREJUDICE.
JUDITH C. HERRERA
United States District Judge
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