Yazzie v. United States of America

Filing 18

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge William P. Lynch re 3 MOTION to Vacate filed by Jerome Yazzie, 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Jerome Yazzie. Objections to PFRD due by 5/23/2017. 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).) (mej)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff,
v.

CV 16-0704 PJK/WPL
CR 11-3108 PJK

JEROME YAZZIE,
Defendant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
Jerome Yazzie filed, essentially, two petitions for relief pursuant to 28 U.S.C. § 2255 and
Johnson v. United States, 576 U.S. ---, 135 S. Ct. 2551 (2015): a petition filed through counsel
on June 24, 2016 (CV Doc. 1; CR Doc. 194)1, and an apparently pro se petition that was
docketed on June 30, 2016, but apparently placed in the prison mail system on June 22, 2016
(Doc. 3). After the Supreme Court’s decision in Beckles v. United States, --- U.S. ---, 137 S. Ct.
886 (2017), the parties agreed that Yazzie’s only remaining claim revolves around the term
“crime of violence” as used in 18 U.S.C. § 924(c). (Doc. 15.) Due to the parties’ stipulation, I
will not address any of the other claims Yazzie initially brought. Having reviewed the record and
the applicable law, I recommend that the Court deny Yazzie’s motion, dismiss this case with
prejudice, and grant a Certificate of Appealability.
After a jury trial, Yazzie was convicted on five counts: Count 1, Aggravated Burglary in
violation of 18 U.S.C. § 1153 and NMSA 1978 § 30-16-4(C); Count 2, Robbery in violation of
18 U.S.C. §§ 1153 and 2111; Count 3, Carrying, Using and Possessing a Firearm in Relation to a
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All citations to “CV Doc.” refer to documents filed in the civil case, CV 16-704 PJK/WPL. All
citations to “CR Doc.” refer to documents filed in the criminal case, CR 11-3108 PJK. Documents filed in
both cases are cited by reference to the corresponding document in the civil case.

Crime of Violence in violation of 18 U.S.C. § 924(c), in connection with the aggravated burglary
and the robbery; Count 4, Kidnapping in violation of 18 U.S.C. §§ 1153 and 1201(a)(2); and
Count 5, Using and Carrying a Firearm During and in Relation to a Crime of Violence in
violation of 18 U.S.C. § 924(c), in connection with the kidnapping. (CR Doc. 153 (Amended
Judgment).) Yazzie was sentenced to five years for the non § 924(c) counts, ten years for Count
3, and twenty-five years for Count 5, all to be served consecutively. (Id.) Yazzie received ten
years for Count 3, pursuant to 18 U.S.C. § 924(c)(1)(A)(iii), because the jury explicitly found
“beyond a reasonable doubt that [Yazzie] discharged the firearm while committing [robbery and
aggravated burglary.]” (CR Doc. 130.) The jury also found that Yazzie “brandished the firearm
while committing [kidnapping.]” (Id.) Yazzie received 25 years for Count 5 pursuant to 18
U.S.C. § 924(c)(1)(C)(i), because it was his second § 924(c) conviction.
Yazzie timely appealed, arguing that his sentence was incorrectly calculated and that
Count 5 should have been considered the first § 924(c) conviction, which would have reduced
his sentence by three years. See United States v. Yazzie, 559 F. App’x 667, 667-68 (10th Cir.
2014) (unpublished).
DISCUSSION
The United States contends that Yazzie procedurally defaulted on his argument pursuant
to 18 U.S.C. § 924(c) because his petition was submitted more than one year after Johnson was
decided. Section 2255(f) of Title 28 provides the relevant temporal limitations on filing habeas
corpus petitions. A 1-year period of limitations applies, and that time is calculated from the latest
of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United

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States is removed, if the movant was prevented from making a motion by such
governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f). Johnson was decided on June 26, 2015, and Yazzie’s pro se petition was
stamped as received by the Court on June 30, 2016 (Doc. 195).
The United States’s argument of procedural default fails for two reasons. First, this Court
previously determined that Yazzie’s pro se motion (Doc. 3) is a “supplement to [Yazzie’s] initial
§ 2255 motion,” which was filed on June 24, 2016. (Doc. 5.) Even if that determination is not
dispositive of the matter, the United States ignored the prison mailbox rule. “[A] federal inmate’s
initial filing of a motion to vacate his sentence pursuant to 28 U.S.C. § 2255” is “considered
timely if given to prison officials for mailing prior to the filing deadline, regardless of when the
court itself receives the documents.” Price v. Philpot, 420 F.3d 1158, 1164 (10th Cir. 2005)
(citing United States v. Gray, 182 F.3d 762, 764, 765 n.4 (10th Cir. 1999)). On the last page of
his petition, Yazzie certifies that he placed the pro se petition in the prison mailing system on
June 22, 2015 (Doc. 3 at 12). I recommend that the Court conclude that Yazzie timely raised his
claims challenging his convictions under 18 U.S.C. § 924(c).
Yazzie contends that he should be resentenced because the residual clause of § 924(c) is
unconstitutionally vague as applied and because his predicate offenses—aggravated burglary,
robbery, and kidnapping—are not categorically crimes of violence. (Doc. 17.) The United States
disagrees.
Section 924(c)(1)(A) provides for enhanced penalties when a firearm is used “during and
in relation to any crime of violence or drug trafficking crime.” A “crime of violence” means

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an offense that is a felony and-(A) has as an element the use, attempted use, or threatened use of physical force
against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.
18 U.S.C. § 924(c)(3). Because I recommend that the Court find that Johnson did not invalidate
§ 924(c)(3)(B), the residual clause, I do not address whether Yazzie’s predicate crimes qualify
under the force clause of § 924(c)(3)(A).
In Johnson, the Supreme Court held that the residual clause of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague. 135 S. Ct. at 2563. The
Supreme Court announced that Johnson would apply retroactively on collateral review in Welch
v. United States, reasoning that Johnson announced a substantive new rule. 578 U.S. ---, ---, 136
S. Ct. 1257, 1264-65 (2016). The ACCA defines a “violent felony” as:
[a]ny crime punishable by imprisonment for a term exceeding on 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 the 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). The Supreme Court struck down the latter half of subsection (ii),
which reads “…otherwise involves conduct that presents a serious potential risk of physical
injury to another.”
Yazzie argues that Johnson should be extended to apply to § 924(c)(3)(B). The Supreme
Court has not decided whether Johnson applies to invalidate § 924(c)’s residual clause. Indeed,
the Court indicated in Johnson that its ruling did not place the language of statutory provisions
like § 924(c)(3)(B) in constitutional doubt. See Johnson, 135 S. Ct. at 2561. The Tenth Circuit
has not yet weighed in. However, the lower courts that have addressed the issue have divided on

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how Johnson applies to § 924(c) and similar provisions. Contrast United States v. Taylor, 814
F.3d 340, 375-79 (4th Cir. 2016) (declining to find § 924(c) void for vagueness), with United
States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015) (finding language similar to § 924(c)
void for vagueness); see also In re Smith, --- F.3d ---, 2016 WL 3895243, at *2-3 (11th Cir.
2016) (noting the issue, but not deciding it in the context of an application for permission to file
a second or successive motion pursuant to 28 U.S.C. § 2255).
Courts that have addressed the issue cite several grounds to distinguish the ACCA’s
residual clause from § 924(c)(3)(B). First, § 924(c)(3)(B)’s statutory language more narrowly
defines “crime of violence” based on physical force rather than on physical injury. While the
ACCA’s residual clause requires conduct “that presents a serious potential risk of physical injury
to another,” § 924(c)(3)(B) requires the risk “that physical force against the person or property of
another may be used in the course of committing the offense.” By requiring that the risk of
physical force arise “in the course of committing the offense,” § 924(c)(3)(B)’s language
mandates that the person who may potentially use physical force be the charged offender. See
Taylor, 814 F.3d at 376-77.
Furthermore, § 924(c)(3)(B) requires that the felony be one which “by its nature”
involves the risk that the offender will use physical force, unlike § 924(e)(2)(B). In Johnson, the
Supreme Court was concerned with the wide judicial latitude that the language of the ACCA’s
residual clause permitted, which did not limit a court’s inquiry to the elements of the crime. See
135 S. Ct. at 2557. By contrast, § 924(c)(3)(B) does not allow a court to consider risk-related
conduct beyond the elements of the predicate crime. The phrase “by its nature” limits and
restrains the court’s analysis to the risk of force in the offense itself. United States v. Amos, 501
F.3d 524, 527 (6th Cir. 2007); see Leocal v. Ashcroft, 543 U.S. 1, 10 (2004) (construing 18

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U.S.C. § 16(b)); United States v. Serafin, 562 F.3d 1105, 1109, 1114 (10th Cir. 2009) (discussing
§ 924(c)(3)(B) in light of Leocal).
A second distinguishing ground is that the Johnson Court was concerned that the
construction of the ACCA’s enumerated crimes provision with the residual clause caused
confusion and vagueness in the residual clause’s application. See 135 S. Ct. at 2561. None of the
Courts of Appeals have identified a similar concern with § 924(c)(3)(B). The ACCA uses the
word “otherwise” to link the enumerated clause and the residual clause. See Johnson, 135 S. Ct.
at 2558. By using the word “otherwise,” the Supreme Court explained, “the residual clause
forces courts to interpret ‘serious potential risk’ in light of the four enumerated crimes—
burglary, arson, extortion, and crimes involving the use of explosives.” Id. Gauging the level of
risk required was difficult because the four listed crimes “are ‘far from clear in respect to the
degree of risk each poses.’” Id. (quoting Begay v. United States, 553 U.S. 137, 143 (2008)).
Unlike the ACCA, § 924(c)(3)(B) does not link its “substantial risk” standard “to a confusing list
of examples.” Id. at 2561.
The Johnson Court addressed the fact that the ACCA residual clause requires the
application of a categorical approach to analysis of the predicate crime, but refrained from
invalidating the categorical analysis. Id. at 2557-58, 2561-62. The Court concluded that the
ordinary case analysis and the level-of-risk requirement “conspire[d] to make [the statute]
unconstitutionally vague,” and determined that the concern with the ACCA’s residual clause was
that it combined an overbroad version of the categorical approach with other vague elements. Id.
at 2557. Section 924(c)(3)(B)’s residual clause does not raise the same analytical concerns when
combined with the categorical approach. See id. at 2561.

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Third, the Court reached its void-for-vagueness conclusion only after deciding a number
of cases calling for interpretation of the ACCA’s residual clause and recognizing the Court’s
“repeated attempts and repeated failures to craft a principled and objective standard out of the
residual clause.” Id. at 2558. By contrast, the Supreme Court has not had occasion to create such
disparately precedential interpretations of § 924(c)(3)(B).
While neither the Supreme Court nor the Tenth Circuit have decided this precise use, I
recommend that the Court not extend Johnson’s reasoning to § 924(c)(3)(B)’s residual clause.
Based on this recommendation, it is unnecessary to determine whether Yazzie’s predicate
offenses come within the force clause rather than the residual clause.
I therefore recommend that the Court deny Yazzie’s motion pursuant to 28 U.S.C.
§ 2255, dismiss this case with prejudice, and grant Yazzie a Certificate of Appealability.

THE PARTIES ARE 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.

______________________________
WILLIAM P. LYNCH
UNITED STATES MAGISTRATE JUDGE

A true copy of this order was served
on the date of entry--via mail or electronic
means--to counsel of record and any pro se
party as they are shown on the Court’s docket.
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