Urena-Hernandez v. United States of America

Filing 9

ORDER ADOPTING REPORT AND RECOMMENDATIONS denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Edwin Vismar Urena-Hernandez ; adopting Report and Recommendations 7 and dismissing case with prejudice by District Judge William P. Johnson. (bap)

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

UNITED STATES OF AMERICA,
Plaintiff/Respondent,

v.

No.

CV 16-0710 WJ/LAM
CR 11-0670 WJ

EDWIN VISMAR URENA-HERNANDEZ,
Defendant/Movant.

ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Magistrate Judge Lourdes A. Martínez’ Proposed
Findings and Recommended Disposition (Doc. 7) 1 (hereinafter “PF&RD”), entered on
March 6, 2017.

On March 20, 2017, Defendant/Movant (hereinafter “Defendant”) filed

objections to the PF&RD. [Doc. 8]. The Government did not respond to Defendant’s objections
and the time for doing so has passed. The Court has conducted a de novo review of those portions
of the PF&RD to which Defendant objects and finds that the objections are without merit.
Accordingly, the Court will: (1) overrule the Defendant’s objections as meritless; (2) adopt the
PF&RD; (3) deny Defendant’s § 2255 motion [Doc. 1]; and (4) enter a final judgment dismissing
this case with prejudice.

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Hereinafter, all documents from Case No. CIV-16-0710 cited in this decision will be designated as “Doc.”
followed by their docket number, and all documents from Case No. CR-11-0670 cited in this decision will be
designated as “Cr.Doc.”

Background
As explained in the PF&RD, on June 13, 2011, pursuant to a Plea Agreement [Cr.Doc. 28],
Defendant pled guilty to an Information [Cr.Doc. 25] charging him with: (1) armed bank robbery,
in violation of 18 U.S.C. §§ 2113(a) and (d); and (2) carrying, possessing, and brandishing a
firearm “during and in relation to and in furtherance of a crime of violence . . . , namely armed bank
robbery, as charged in Count 1,” in violation of 18 U.S.C. § 924(c)(1)(A)(ii). See [Doc. 7 at 2].
On November 21, 2011, Defendant was sentenced to a term of 30 months as to Count 1, and 84
months as to Count 2, with the terms to run consecutively, for a total term of 114 months.
[Cr.Doc. 42 at 2]. The Court also imposed a total term of 5 years of unsupervised release. Id.
at 3. In his § 2255 motion, Defendant contends that his seven-year sentence for carrying a firearm
during a crime of violence, in violation of 18 U.S.C. § 924(c), is unconstitutional because armed
bank robbery no longer qualifies as a crime of violence following the holding of Johnson v.
United States, 135 S. Ct. 2551 (2015) (“Johnson 2015”). [Doc. 1 at 1]. Specifically, Defendant
contends that his sentence was improperly enhanced by seven years under § 924(c)(1)(A)(ii)
because armed bank robbery, §§ 18 U.S.C. § 2113(a) and (d), does not qualify as a crime of
violence under either the force clause of § 924(c)(3)(A) or the residual clause of § 924(c)(3)(B).
See id. at 1-2. Defendant contends that armed bank robbery is not a crime of violence under the
force clause because it does not require proof of the use or threatened use of violent, physical force
as that is defined in Johnson v. United States, 559 U.S. 133, 140 (2010) (“Johnson 2010”). See id.
at 7. In the alternative, Defendant contends that armed bank robbery cannot qualify as a crime of
violence under the residual clause of § 924(c)(3)(B) because that clause is void for vagueness
pursuant to the holding in Johnson 2015. See id. at 9-10.

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As further explained in the PF&RD (see Doc. 7 at 4), in Johnson 2015, the Supreme Court
held that the residual clause of the ACCA, is unconstitutionally vague (135 S. Ct. at 2557).
However, the Magistrate Judge noted that Defendant’s sentence was not enhanced under the
ACCA, but, instead, was enhanced under § 924(c), which mandates an enhanced sentence for “any
person who, during and in relation to any crime of violence or drug trafficking crime . . . , uses or
carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” [Doc. 7 at 4]
(quoting § 924(c)(1)(A)). A “crime of violence” is defined in this subsection as:
[A]n 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.
§ 924(c)(3)(A)-(B). The Magistrate Judge noted that “[t]he issue of whether the holding of
Johnson 2015 applies to the residual clause of § 924(c)(3)(B) is unsettled,” that appellate courts
have divided on this question, and that the issue is currently pending before the Tenth Circuit in
United States v. Hopper, 10th Cir. No. 15-2190. [Doc. 7 at 5]. Regardless, the Magistrate Judge
found that the Court need not determine in this case whether Johnson 2015 should apply to the
residual clause of § 924(c)(3)(B) because Defendant’s armed bank robbery conviction is a crime of
violence under the force or elements clause, § 924(c)(3)(A). See id.
Applying the modified categorical approach set forth in Mathis, the Magistrate Judge
determined that Defendant was convicted of the first set of elements under 18 U.S.C. § 2113(a),
which provides:
(a) Whoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another, or obtains
or attempts to obtain by extortion any property or money or any

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other thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any
savings and loan association . . .
Shall be fined under this title or imprisoned not more than twenty
years, or both.
See id. at 6. The Magistrate Judge further noted that Defendant was also convicted under
§ 2113(d), which states:
Whoever, in committing, or in attempting to commit, any offense
defined in subsections (a) and (b) of this section, assaults any
person, or puts in jeopardy the life of any person by the use of a
dangerous weapon or device, shall be fined under this title or
imprisoned not more than twenty-five years, or both.
See id.

The Magistrate Judge rejected Defendant’s contention that his conviction under

§§ 2113(a) and (d) does not satisfy the definition of “physical force” as set forth in Johnson 2010,
noting that Johnson 2010 addressed the definition of “physical force” under the ACCA, and
Defendant provided no support for his contention that this holding also applies to the definition of
“physical force” under § 924(c)(3)(A). See id. at 7-8. Nevertheless, the Magistrate Judge found
that Defendant’s conviction for armed bank robbery under §§ 2113(a) and (d) meets
Johnson 2010’s definition of “physical force” “because armed bank robbery requires that, in
committing or attempting to commit the offense, the defendant ‘assault[ed] any person, or put[] in
jeopardy the life of any person, by the use of a dangerous weapon or device.’” Id. at 8 (quoting
§ 2113(d), emphasis added). Because the force clause of § 924(c)(3)(A) applies to crimes that
have “as an element the use, attempted use, or threatened use of physical force against the person
or property of another” (emphasis added), and the definition set forth in Johnson 2010 includes
“force capable of causing physical pain or injury to another person” (559 U.S. at 140, emphasis
added), the Magistrate Judge found that “intimidation, even through the use of an unloaded and
inoperable firearm, constitutes the threatened use of force that is capable of causing physical pain

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or injury” (Doc. 7 at 8), and, therefore, found that armed bank robbery under §§ 2113(a) and (d)
satisfies the force clause of § 924(c)(3)(A).
In addition, the Magistrate Judge rejected Defendant’s contention that armed bank robbery
does not meet the force clause of § 924(c)(3)(A) because a defendant can be convicted of armed
bank robbery even without a finding of intent. See id. at 8-9. The Magistrate Judge explained
that “[b]ank robbery is a ‘general intent’ crime and, thus, requires proof that the crime ‘was done
voluntarily and intentionally, and not because of mistake or accident.’” Id. at 8-9 (quoting
United States v. Taylor, 454 F.3d 1075, 1081 (10th Cir. 2006), and citing United States v. Foppe,
993 F.2d 1444, 1451 (9th Cir. 1993), which explains that bank robbery in § 2113(a) “is a general
intent crime”). The Magistrate Judge, therefore, found that Defendant’s reliance on Leocal v.
Ashcroft, 543 U.S. 1 (2004) was unpersuasive because the crime in Leocal did not require any
finding of intent. See id. at 9 (citing Leocal, 543 U.S. at 6 and 9, which found that offenses such
as the DUI conviction at issue, “which either do not have a mens rea component or require only a
showing of negligence in the operation of a vehicle,” do not qualify as crimes of violence, and
explaining that “[t]he key phrase in § 16(a) -- the ‘use . . . of physical force against the person or
property of another’ -- most naturally suggests a higher degree of intent than negligent or merely
accidental conduct”). Therefore, the Magistrate Judge concluded that Defendant’s conviction for
armed bank robbery under §§ 2113(a) and (d) constitutes a violent crime under § 924(c)(3)(A)’s
force clause, and without resort to § 924(c)(3)(B)’s residual clause. See id. at 9-10 (citing Lloyd
v. United States, No. CIV-16-513 JB/WPL (Document 8 at 11) (finding that armed bank robbery
under §§ 2113(a) and (d) is a crime of violence under § 924(c)(3)(A)); Hyatt v. United States,
No. CIV-16-758 LH/WPL (Document 4 at 8) (finding that bank robbery under § 2113(a) is a crime
of violence under § 924(c)(3)(A)); and United States v. Adkins, 937 F.2d 947, 950 n.2

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(4th Cir. 1991) (“Armed bank robbery is unquestionably a crime of violence, because it ‘has as an
element the use, attempted use, or threatened use of physical force against the person or property
of another.’”) (quoting 18 U.S.C. § 924(c)(3)(A)).
Defendant’s Objections
Defendant first contends that armed bank robbery is not a crime of violence under either
the categorical or modified categorical approach. [Doc. 8 at 2-3]. Defendant contends that
“§ 2113(a) does not necessarily and inevitably involve the use of force,” and that “because the
offense can be committed by intimidation and because, as here, the threat of force does not always
involve violence [sic] force, the offense cannot qualify as a crime of violence under 18 U.S.C.
§ 924[(c)(3)(A)].” Id. at 3. Defendant objects to the Magistrate Judge’s finding that armed bank
robbery meets the definition of physical force because Defendant contends that such a finding is
“inconsistent with the limitations of the modified categorical approach.” Id. at 5. Defendant
also contends “that because bank robbery can be satisfied by intimidation, it simply does not meet
the physical force requirements under the categorical approach.” Id. Defendant states that “he
did not hurt anyone when he robbed the bank and no actual force was ever used.” Id. at 6.
The Court agrees with the Magistrate Judge that a conviction for armed bank robbery under
§§ 2113(a) and (d) meets Johnson 2010’s definition of “physical force” because it requires that, in
committing or attempting to commit the offense, the defendant “assault[ed] any person, or put[] in
jeopardy the life of any person, by the use of a dangerous weapon or device.” [Doc. 7 at 8]
(quoting § 2113(d), emphasis added). The Court further agrees that, because the force clause of
§ 924(c)(3)(A) applies to crimes that have “as an element the use, attempted use, or threatened use
of physical force against the person or property of another” (emphasis added), and the definition
set forth in Johnson 2010 includes “force capable of causing physical pain or injury to another

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person” (559 U.S. at 140, emphasis added), even intimidation constitutes the threatened use of
force that is capable of causing physical pain or injury. In addition, the Court notes that
Defendant’s counsel states that his “duty of candor to the Court compels him to acknowledge that
the weight of authority is against [Defendant] and that most courts which have considered the issue
have held that Johnson [2015] did not abrogate extant precedent which held that armed bank
robbery categorically satisfies the physical-force clause of 924[(c)(3)(A)].” [Doc. 8 at 6, n.1]
(citations omitted). The Court, therefore, finds that this objection is without merit and shall be
overruled.
Next, Defendant objects on the grounds that the residual clause of § 924(c)(3)(B) is
unconstitutionally vague pursuant to the holding of Johnson 2015. See id. at 7-8. The Court
finds that this objection is without merit because the Court agrees with the Magistrate Judge that
armed bank robbery under § 2113(a) and (d) constitutes a violent crime under the force clause
(§ 924(c)(3)(A)) and without resort to the residual clause (§ 924(c)(3)(B)). See [Doc. 7 at 9].
Therefore, the Court shall overrule this objection as well.
IT IS THEREFORE ORDERED, for the reasons stated above, that:
1. Defendant’s objections to the PF&RD [Doc. 8] are OVERRULED;
2. The Proposed Findings and Recommended Disposition (Doc. 7) are ADOPTED;
3. Defendant’s § 2255 motion [Doc. 1] is DENIED; and
4. This case shall be DISMISSED with prejudice, and a final judgment will be entered
concurrently with this order.
IT IS SO ORDERED.
__________________________________________
UNITED STATES DISTRICT JUDGE

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