Baker v. United States of America
REPORT AND RECOMMENDATIONS by Magistrate Judge Gregory B. Wormuth to DENY 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Vernon Lee Baker. Objections to R&R due by 12/29/2016. Add 3 days to th e 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).) (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
VERNON LEE BAKER,
Case No. 16‐cv‐715 PJK/GBW
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter is before the Court on Defendant’s Motion to Vacate, Set Aside, or
Correct Sentence under 28 U.S.C. § 2255. Doc. 1.1 Defendant seeks to have his
conviction and sentence set aside pursuant to the Supreme Court’s decision in Johnson v.
United States, which struck down the residual clause of the Armed Career Criminal Act
(ACCA) as unconstitutionally vague under the Fifth Amendment Due Process Clause.
135 S.Ct. 2551 (2015). See generally doc 1. Having reviewed the pleadings and record
before the Court, I recommend denying the Motion.
Defendant was convicted by a jury 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) on April 21, 2011. Cr.
docs. 30, 116. Ordinarily, this crime carries a maximum term of imprisonment of ten
Citations to “doc.” refer to docket numbers filed in Case No. 16‐CV‐715‐PJK/GBW. Citations to “cr. doc.”
refer to the attendant criminal docket, Case No. 08‐CR‐1680‐PJK. For filings made on both dockets, only
the civil docket number is given.
years. However, the ACCA provides that a defendant convicted of being a felon in
possession of a firearm faces an enhanced sentence where he has three or more previous
convictions for a “violent felony.” Id. at § 924(e)(2)(B). Specifically, defendants with
three prior convictions which satisfy the ACCA are subject to a maximum sentence of
life imprisonment and a minimum of fifteen years imprisonment. See Logan v. United
States, 552 U.S. 23, 27 (2007). At the time of Defendant’s sentencing, the ACCA defined
“violent felony” as any crime punishable by imprisonment for a term exceeding one
has as an element the use, attempted use, or threatened use
of physical force against the person of another; or
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). The italicized portion is known as “the
residual clause” of the ACCA, which the Supreme Court struck down as
unconstitutional under the void‐for‐vagueness doctrine in its Johnson decision. See 135
S. Ct. at 2557‐61.2
After modifications to the presentence report (PSR) based upon Defendant’s
objections,3 the Court concluded that Defendant had at least three prior “violent felony”
The Supreme Court has instructed that its Johnson decision is retroactively applicable to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257, 1265 (2016). Because Defendant filed his § 2255
petition within one year of the Supreme Court’s decision in Johnson, it is properly before the Court to
decide whether Johnson applies to—and justifies vacating—Defendant’s sentence, which was enhanced
under the ACCA. See Dodd v. United States, 545 U.S. 353, 357 (2005).
3 See cr. docs. 126, 127, 130.
convictions. See cr. docs. 127, 130; see also PSR ¶¶ 28, 87. Consequently, he qualified for
the increased statutory punishment under the ACCA and the sentencing guideline
enhancement under U.S.S.G. § 4B1.4(b). With a minimum required sentence of 180
months and a guideline range of 235‐293 months, Defendant was sentenced to 235
months of imprisonment and three years of supervised release. Cr. doc. 130.
Defendant’s past convictions that were classified in the PSR as “violent felonies”
justifying his designation as an armed career criminal include: (1) Robbery While
Armed with a Deadly Weapon (1st Judicial District Court, Santa Fe, New Mexico, case
number CR‐1977‐00179); (2) Armed Robbery with a firearm enhancement (2nd Judicial
District Court, Albuquerque, New Mexico, case number D‐202‐CR‐7932613); and (3)
Aggravated Battery, Deadly Weapon (2nd Judicial District Court, Albuquerque, New
Mexico, case number D‐202‐CR‐00004168).4 PSR ¶ 28. The PSR also reflects a
conviction for Aggravated Assault Against a Household Member (Deadly Weapon),
which contributed three criminal history points under U.S.S.G. §4A1.1(a). PSR ¶ 39. At
the time of sentencing, Defendant did not dispute any of the PSR findings. Cr. doc. 130.
Defendant was convicted of this offense under Count 3 of the indictment in the matter. Defendant was
also convicted of Count 5, Bribery of a Witness (Threats or Bribes‐ Reporting; Felony) in the same matter,
and the PSR lists both convictions as predicate offenses justifying the ACCA enhancement. PSR ¶ 28.
Defendant argues that the bribery offense does not qualify as a “violent felony” under the ACCA. Doc. 1
at 13‐16. The United States does not dispute that assertion and instead argues that the other three felonies
enumerated in the PSR as the basis for the ACCA enhancement are rightly considered “violent felonies.”
Doc. 7 at 2 n.2. I therefore recommend that the Court decline to consider whether the bribery conviction
qualifies as a violent felony under the ACCA and assume, for purposes of deciding the motion, that it
Whether the underlying criminal convictions of Defendant’s ACCA
enhancement qualify as “violent felonies” depends on whether they satisfy the
definition of “violent felony” under the remaining clauses of the ACCA, now that the
residual clause has been struck down as unconstitutional. See 18 U.S.C. § 924(e)(2)(B).
In making its determination, the Court should consider the offense “generically, that is
to say, . . . in terms of how the law defines the offense and not in terms of how an
individual offender might have committed it on a particular occasion.” Begay v. U.S.,
553 U.S. 137, 141 (2008). This “categorical approach” requires the Court to “consult
only the fact of conviction and the statutory definition of the prior offense, and  not
generally consider the particular facts disclosed by the record of conviction.” United
States v. Ramon Silva, 608 F.3d 663, 669 (10th Cir. 2010) (internal quotations omitted); see
also Mathis v. United States, 136 S. Ct. 2243, 2248 (2016).
The Supreme Court explained in Johnson v. United States, 559 U.S. 133, 140 (2010)5
that the term “physical force” as used in the 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
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 the ACCA (hereinafter referred to as Johnson II).
Defendant’s past convictions under New Mexico law constitute violent felonies under
the ACCA, the Court must first consider whether each state statute that he violated
necessarily proscribes conduct that “has as an element the use, attempted use, or
threatened use of” violent force against the person of another. If so, it is categorically a
“violent felony” under the force clause of the ACCA.
If, however, the statutory definition of any of Defendant’s prior offenses is
broader than the ACCAʹs definition of “violent felony” and the prior offense is
“divisible,” the Court will then apply what is known as a “modified‐categorical
approach.” Ramon Silva, 608 F.3d at 669; 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. Any three such felonies may validly
underlie the application of the ACCA enhancement. 18 U.S.C. § 924(e)(2)(B)(i).
Defendant challenges his sentence on the basis that, after Johnson II, his past
criminal convictions identified in the PSR as predicate offenses compelling the ACCA
enhancement no longer qualify as “violent felonies” under the remaining clauses of the
ACCA. Doc. 1 at 8‐16. He argues that he therefore does not qualify as an armed career
criminal and is entitled to be resentenced without the ACCA enhancement. Id. at 16.
Each of Defendant’s predicate criminal convictions for his armed career criminal
designation will be addressed in turn to determine whether the ACCA enhancement
was properly applied in light of Johnson II.
As a preliminary matter, Defendant’s past convictions clearly do not qualify
under the clause enumerating the specific felonies of “burglary, arson, or extortion,” or
those “involv[ing] use of explosives.” Id. at (e)(2)(B)(ii); see also PSR ¶ 28. Therefore, the
only question before the Court is whether at least three of Defendant’s past convictions
qualify as violent felonies under the “force clause”—that is, whether each conviction
“has as an element the use, attempted use, or threatened use of physical force against
the person of another[.]” Id. at (e)(2)(B)(i).
i. Robbery While Armed with a Deadly Weapon
Defendant does not dispute that he was convicted of Robbery While Armed with
a Deadly Weapon pursuant to N.M.S.A. § 40A‐16‐2 (1953), later recodified as N.M.S.A. §
30‐16‐2 (1978). Doc. 7 at 4 n.4; doc. 1 at 12. That statute sets forth the elements of the
crime as follows:
Robbery 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.
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.S.A. § 30‐16‐2 (formerly N.M.S.A. § 40A‐16‐2 (1953)) (emphasis added).
New Mexico courts have made clear that the “use or threatened use of force”
must be against the person of another to satisfy this element. See, e.g., State v. Bernal, 146
P.3d 289, 296 (N.M. 2006); State v. Curley, 939 P.2d 1103, 1106 (N.M. Ct. App. 1997). For
example, the New Mexico Supreme Court has instructed that, in contrast to the statute
criminalizing larceny, the robbery statute “is clearly designed to protect citizens from
violence . . . . Robbery is not merely a property crime, but a crime against a person.”
Bernal, 146 P.3d at 296. The New Mexico Court of Appeals has similarly explained that
the requirement that property be taken with sufficient force “so as to overcome the
resistance of attachment” before larceny is elevated to robbery is intended to reflect “the
increased danger to the person that robbery involves over the offense of larceny.”
Curley, 939 P.2d at 1106.
Defendant argues to the contrary that armed robbery “may be accomplished . . .
without the use, threatened use, or attempted use of physical force against the person of
another.” Doc. 1 at 10‐11. In support, he cites to various examples given in the official
Committee Commentary to New Mexico’s Uniform Jury Instruction on the essential
elements of robbery. Doc. 1 at 10‐11 (citing N.M. R. CR. UJI 14‐1620, Committee
Commentary). However, this argument mistakenly conflates the force element of the
offense of robbery in New Mexico with the “immediate control” element, which can be
satisfied even when the property taken is not located on the person of the victim. See,
e.g., Osborne v. State, 38 S.E.2d 558, 559 (1946) (both force and “immediate control”
elements of robbery are established where “two men strike and beat another with their
hands, strike him in the face with a blunt instrument, and then immediately take his
money from the pocket of his trousers which are . . . eight or ten feet away from the
victim[.]”); People v. Day, 63 Cal. Rptr. 677, 678 (Cal. Ct. App. 1967) (finding that a
defendant “took personal property from the possession of another against the will of
that person and by means of force” where he “stuck a knife toward [the victim’s] ribs”
and directed the victim to lie down while the defendant removed cash from the
register); State v. Cottone, 145 A.2d 509, 513, 512 (N.J. Super. Ct. App. Div. 1958) (finding
both the elements of “taking of the property of another from his person or presence”
and “by violence or putting him in fear” were met where a servant was held at
gunpoint, ordered to lie on the floor, bound, and gagged, while three men stole
property from an area upstairs). In each of the cases cited by Defendant and referenced
by the UJI Committee, the element at issue was the “immediate control” element, and
the use or threatened use of force against the person of another was met beyond dispute
in each instance. See Doc. 1 at 10‐11; N.M. R. CR. UJI 14‐1620, Committee Commentary.
Defendant’s argument on this point is therefore without merit.
Having established that the use or threatened use of force must be against the
person of another, the question still remains whether the amount of force required
under the New Mexico robbery statute is categorically sufficient to meet the standard
outlined in Johnson I—that is, “force capable of causing physical pain or injury to
another person.” 559 U.S. at 140.
The state law jurisprudence regarding the statute instructs that “[t]he use of
force, violence, or intimidation is an essential element of robbery.” State v. Lewis, 867
P.2d 1231, 1233 (N.M. Ct. App. 1993). “The force or intimidation is the gist of the
offense.” State v. Sanchez, 430 P.2d 781, 782 (N.M. Ct. App. 1967). The phrase “or
violence,” as used in the statute, “do[es] not substantively state an alternative means of
committing the offense[.]” Curley, 939 P.2d at 1104. State courts in New Mexico thus
use the terms “force” and “violence” interchangeably when discussing whether the
force element of the statute has been met by an offense. See id.
The force or fear required under the state robbery statute “must be the moving
cause inducing the victim to part unwillingly with his property. It must overcome the
victim’s resistance. It must compel one to part with his property. It must be such that
the power of the owner to retain his property is overcome.” Sanchez, 430 P.2d at 782
(internal citations omitted). The “use of force to retain property or to facilitate escape
does not satisfy the force element necessary for the crime of robbery.” Lewis, 867 P.2d at
1233‐34. Rather, “the use or threatened use of force must be the factor by which the
property is removed from the victim’s possession.” Id. at 1233. For example, the Curley
court concluded that the defendant was entitled to an instruction on the lesser included
offense of larceny even though he shoved the victim before taking her purse, because
the jury could have found that the shove was accidental and independent of the taking,
and that the defendant thus “took the purse by surprise from a person who was not
resisting, and not by force necessary to overcome any resistance.” 939 P.2d at 1107.
Whether the force employed during a larceny is sufficient to elevate the offense
to robbery requires an evaluation by the fact‐finder. See State v. Clokey, 553 P.2d 1260,
1260 (“The question of whether or not the snatching of the purse from the victim was
accompanied by sufficient force to constitute robbery is a factual determination, within
the province of the juryʹs discretion.”). De minimis force will not do to sustain a robbery
conviction. See Curley, 939 P.2d at 1105 (“[W]hen no more force is used than would be
necessary to remove property from a person who does not resist, then the offense is
larceny, and not robbery.”). Mere “touching or jostling,” or even the more overtly
forceful act of pressing a fist into the victim’s back while stealing his property, are all
insufficient to establish the force element; such circumstances support only the lesser
conviction of larceny. Sanchez, 430 P.2d at 782.
In older cases, New Mexico courts have said “in dictum that even a slight
amount of force, such as jostling the victim or snatching away the property is sufficient”
force for a robbery conviction. Curley, 939 P.2d at 1104 (citing State v. Martinez, 513 P.2d
402, 403 (N.M. Ct. App. 1973)). However, the Curley opinion makes clear that the
property must be taken with sufficient force to “overcome the resistance of attachment.”
Id. at 1105‐06. Importantly, the Curley court explained that the distinction between
robbery and larceny does not hinge on “[s]ubtle differences in the amount of force used,
alone[.]” Rather, the court explained that “if we remember that the reason for the
distinction is the increased danger to the person” accompanying the crime of robbery,
“then an increase in force that makes the victim aware that her body is resisting could
lead to the dangers that the crime of robbery was designed to alleviate[,]” such as
violent altercations or confrontations. Curley, 939 P.2d at 1103.
Consequently, under New Mexico law, the essential purpose of the robbery
statute is to prevent the possibility of dangerous and violent altercations that arises
when enough force is used to create an occasion for confrontation. As the Supreme
Court of New Mexico has explained, “robbery is a crime designed to punish the use of
violence” and “to protect citizens from violence.” Bernal, 146 P.3d at 296.
The analysis set forth by the Curley court regarding the force element of New
Mexico robbery directly parallels the rationale in Ramon Silva, in which the Tenth
Circuit Court of Appeals held that “apprehension causing” aggravated assault is
categorically a “violent felony” under the “threatened use of force” prong of the ACCA
force clause. 608 F.3d at 670‐71. There, the court reasoned that the conduct proscribed
by the offense “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 near‐future,” and because such conduct “always has the
potential” to lead to violent force. Id. (emphasis added). Therefore, the force required in
New Mexico to establish the crime of simple robbery must at the very least satisfy the
“threatened use” prong of the ACCA force clause, given that state law has established
that the elements of the statute require actual or potential violent force. See 18 U.S.C. §
924(e)(2)(B)(i). It thus qualifies as a violent felony under the ACCA.6 See also Contreras
v. United States, Magistrate Judge’s Proposed Findings and Recommended Disposition,
doc. 12 at 8‐18 in 16‐cv‐0671 RB/SMV (D.N.M. Dec. 6, 2016) (concluding that New
Mexico robbery qualifies as a predicate conviction under the force clause of the ACCA).
Though its decision predates Johnson I, the Tenth Circuit Court of Appeals has
reached the same conclusion. See United States v. Lujan, 9 F.3d 890, 891‐92 (10th Cir.
1993). In Lujan, the Court of Appeals confronted a defendant convicted of
manslaughter in California and robbery in New Mexico, under the same statute at issue
here. Id. at 891. In holding that both convictions constitute “violent felonies” under the
ACCA, the court explained: “[The California manslaughter statute] has ‘as an element
This conclusion is also supported by the textual history of the ACCA and the Supreme Court’s
interpretation of its general scope. “Prior to the enactment of the current language, the [ACCA] applied
its enhanced sentence to offenders with ‘three previous convictions for robbery or burglary.’” Begay v.
United States, 553 U.S. 137, 143 (2008). The Supreme Court has explained that Congress changed the
language of the statute in order “to expand that definition to include both crimes against the person
(clause (i)) and certain physically risky crimes against property (clause (ii)).” Id. at 143‐44 (emphasis
added); see also Taylor v. United States, 495 U.S. 575, 582 (1990) (describing a 1986 amendment to the ACCA
as one that “expanded the predicate offenses triggering the sentence enhancement from ‘robbery or
burglary’ to ‘a violent felony or a serious drug offense[.]”). Certainly, if generic robbery was originally
included and the definition was subsequently expanded, generic robbery would remain within the ambit
of the ACCA. Moreover, as generic robbery is a crime against the person, it would fall within clause (i) of
the ACCA – the “force” clause. Notably, New Mexico’s robbery statute is narrower than the uniform
generic definition of robbery. New Mexico still requires that a defendant “must use force before or
during the taking itself” in order to commit robbery. United States v. Garcia‐Caraveo, 586 F.3d 1230, 1235
(10th Cir. 2009). This requirement is a relic of the strict common law to which only five states, including
New Mexico, still adhere. Id. In contrast, generic robbery incorporates the more lenient “continuing
offense theory”—an act of force or violence committed to facilitate escape suffices to satisfy the force
element of robbery. See id. at 1234‐37. Therefore, as generic robbery should remain within the force
clause of the ACCA after its expansion, so should New Mexico’s narrower version.
the use, attempted use, or threatened use of physical force against the person of
another’ and thus is a violent felony under the ACCA. The New Mexico robbery statute
also contains the required element of force[.]” Id. at 892 (quoting and italicizing for
emphasis the force element of N.M.S.A. § 30‐16‐2).
While I conclude that simple robbery under New Mexico law constitutes a
violent felony under the ACCA, Defendant was convicted of the more serious offense of
robbery while armed with a deadly weapon. This fact further bolsters the conclusion
that his conviction constitutes a violent felony under the ACCA. The robbery statute
defines the three separate crimes of first degree, second degree, and third degree felony
robbery by listing elements in the alternative. See N.M.S.A. § 30‐16‐2. Unlike third
degree (simple) robbery, Defendant’s conviction required proof of the element of being
“armed with a deadly weapon” during commission of the offense. See id. It is thus a
divisible statute, and the Court should employ the modified categorical approach in
determining whether armed robbery is a “violent felony” under the ACCA force clause.
Ramon Silva, 608 F.3d at 669; see also Mathis, 136 S. Ct. at 2249, 2256 (explaining that
“divisible” statutes are those that “list elements in the alternative, and thereby define
multiple crimes,” and later instructing that “[i]f statutory alternatives carry different
punishments, then under Apprendi they must be elements.”).
The New Mexico Criminal Code provides the uniform definition of “deadly
weapon” as “any firearm, whether loaded or unloaded; or any weapon which is capable
of producing death or great bodily harm,” followed by a list of examples of weapons
that meet this definition. N.M.S.A. § 30‐1‐12(B). The same statute sets forth the uniform
definition of “great bodily harm” as “an injury to the person which creates a high
probability of death; or which causes serious disfigurement; or which results in
permanent or protracted loss or impairment of the function of any member or organ of
the body.” Id. § 30‐1‐12(A).
There can be no doubt that, if use of a deadly weapon during the robbery were
required for a conviction for armed robbery, armed robbery would constitute a violent
felony under the ACCA. However, some New Mexico cases suggest that no use of the
weapon is required. See, e.g., State v. Duran, 570 P.2d 39, 40‐41 (N.M. 1977) (rejecting as
“not necessarily true” the State’s contention that a jury’s finding of guilt on a New
Mexico armed robbery charge “necessarily determined that defendant used a firearm,”
as required to justify a firearm enhancement); see also State v. Chouinard, 603 P.2d 744,
745 (N.M. 1979) (distinguishing a statute providing for a sentence enhancement where a
firearm is “used” in the commission of a felony from statutes allowing punishment of
mere possession and non‐use, including the New Mexico armed robbery statute as a
specific example, and citing Duran for the proposition that “‘[u]se is different from
‘possession.’ This court has previously noted this distinction with respect to firearms.”).
However, the New Mexico Court of Appeals has made clear that whether the
element of having been “armed with a deadly weapon” during the commission of a
robbery is satisfied requires more than a simple inquiry into whether defendant merely
possessed such a weapon. See State v. Hamilton, 6 P.3d 1043 (N.M. Ct. App. 2000); see
also Lewis, 867 P.2d at 1232‐33 (Use of a weapon solely to facilitate escape does not
constitute armed robbery where no force is used or threatened to obtain a victim’s
property prior to escape.). In Hamilton, the defendant broke into the victim’s home, and
began demanding and taking property. Id. at 1045. When he entered the home, he did
not possess a firearm. Id. However, during the course of his initial thefts, he found and
took a firearm:
After finding the handgun, Defendant told Means to give him all of her
money. She again told Defendant that she did not have any money, but
Defendant reached in Meansʹs purse and found a twenty dollar bill, which
he took. Next, Defendant pointed the gun at Means’s abdomen then
moved the gun quickly to one side and fired, narrowly missing Means but
putting a hole in the couch.
Id. The defendant argued that he could not be convicted of armed robbery because he
acquired the firearm during the course of the robbery. Id. In its review of relevant
cases, the court reasoned that “the determination of whether a defendant who seizes a
weapon during the commission of a robbery is armed ‘while’ committing the robbery is
highly fact sensitive. When the defendant acquires the weapon and how he uses it after
its acquisition are paramount.” Id. (emphasis added). The Hamilton holding could be
read as focusing on the meaning of “while.” Under this interpretation, the crucial
question would be whether the defendant possessed the firearm at the time the robbery
was occurring. However, if true, “how he uses it after its acquisition” would not be
relevant, let alone “paramount.” The court would have considered only when the
firearm was acquired and whether the robbery was still in progress. Instead, Hamilton
supports the conclusion that mere possession of the firearm during the robbery without
any use whatsoever is insufficient for the crime of armed robbery under New Mexico
Even assuming without deciding that armed robbery can be committed where a
defendant never uses a deadly weapon during the commission of the offense,
Defendant’s conviction is categorically a violent felony under the ACCA. This is so,
first of all, because simple robbery alone satisfies the requirements of the force clause, as
discussed above. Secondly, in light of the relevant state law, Defendant was necessarily
convicted of (1) using or threatening the use of force against the person of another, (2)
such that the victim’s resistance to parting with his property was overcome, (3) while
armed with a weapon capable of producing death or great bodily harm. See N.M.S.A. §
30‐16‐2; Bernal, 146 P.3d at 296; Sanchez, 430 P.2d at 782; N.M.S.A. § 30‐1‐12(B).
Particularly given the possession of a deadly weapon, there is categorically no way for
Defendant to have engaged in such conduct without at the very least “communicat[ing]
to his victim that he will potentially use ‘violent force against the victim in the near 
future.” See Ramon Silva, 608 F.3d. at 670 (quoting Johnson I, 559 U.S. at 140). Such an
act thus always threatens the use of “force capable of causing physical pain or injury to
another person” and therefore meets the Johnson I standard.
ii. Armed Robbery with a Firearm Enhancement
Defendant’s 1979 conviction for Armed Robbery with a Firearm Enhancement
stemmed from another violation of the same statute discussed above. The statute was
recodified in 1978, but the text of the statute was not altered. See N.M.S.A. § 30‐16‐2
(1978). Therefore, this offense is also a “violent felony” under the ACCA for the same
reasons explained above regarding Defendant’s Robbery While Armed with a Deadly
iii. Aggravated Battery, Deadly Weapon
The third predicate offense underlying the application of the ACCA
enhancement to Defendant’s conviction for felon in possession of a firearm is
Aggravated Battery, Deadly Weapon, in violation of N.M.S.A. § 30‐3‐5. That statute
A. Aggravated battery consists of the unlawful touching or application of
force to the person of another with intent to injure that person or
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
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.S.A. § 30‐3‐5. Defendant argues that his conviction of aggravated battery with a
deadly weapon does not constitute a violent felony because “unlawful touching could
suffice to constitute an offense under this statute, but will not suffice to qualify as a
‘violent felony’ under the ACCA.” Doc. 1 at 13. This argument is without merit.
As an initial matter, Defendant ignores an important element which is present
even in the misdemeanor version of aggravated assault – the intent to injure. One
certainly could conclude that the application of force to the person of another with the
intent to injure the 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, 9 P.3d 668, 674 (N.M. Ct. App. 2000) (“The aggravated battery statute is
directed at preserving the integrity of a person’s body against serious injury.”).
However, because Defendant was convicted of a more serious felony version of
aggravated battery, the Court need not decide that question.
Defendant was convicted of Aggravated Battery, Deadly Weapon, in violation of
N.M.S.A. § 30‐3‐5(C). As explained by the government and undisputed by Defendant,
the felony versions of the crime are divisible from the misdemeanor version. See doc. 7
at 7‐9 (applying Mathis test of divisibility). In short, a conviction under N.M.S.A. § 30‐3‐
5(C) enhances the maximum punishment and requires proof of one of the following: (i)
that the battery caused great bodily harm; (ii) that the battery was accomplished by the
use of a deadly weapon; or (iii) that the battery was accomplished in a manner whereby
great bodily harm could be inflicted. Certainly, if the battery caused great bodily harm
or was done in a manner whereby great bodily harm could be inflicted, the battery
involved “force capable of causing physical pain or injury to another person” as
required by Johnson I. 559 U.S. at 140. With respect to a battery in which a deadly
weapon was used, the answer is dictated by the Tenth Circuit’s recent decision in United
States v. Maldonado‐Palma, 839 F.3d 1244 (10th Cir. 2016).
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).7 Id. at 1246‐50. The
sentencing guidelines definition of “crime of violence” is identical to the relevant ACCA
provision and is also interpreted pursuant to the modified categorical approach
outlined herein. See United States v. Ventura‐Perez, 666 F.3d 670, 673 (10th Cir. 2012). In
Maldonado‐Palma, 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.
As with aggravated assault with a deadly weapon, aggravated battery with a
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[.]” The revision does not affect the present analysis.
deadly weapon requires proof of use of the deadly weapon under New Mexico law. See
N.M.S.A. § 30‐3‐5(C); see also N.M. R. CR. 14‐322 (instructing that aggravated battery
with a deadly weapon requires proof that the defendant “touched or applied force to”
the victim with a deadly weapon and that “[t]he defendant used” a deadly weapon
(emphasis added)). Consequently, the logic in Maldonado‐Palma compels the conclusion
that a New Mexico conviction for aggravated battery with a deadly weapon
categorically qualifies as a violent felony under the ACCA.8 This conclusion is further
supported by the fact that the Supreme Court in the Johnson I opinion itself 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” while parsing the
meaning of the ACCA’s force clause. 559 U.S. at 140‐41 (emphasis added).
In conclusion, all three of the means by which one can violate N.M.S.A. § 30‐3‐
5(C) satisfy the force requirement set out in Johnson I. As such, Defendant’s conviction
under that statute constitutes a “violent felony” under the ACCA.
Aggravated Assault Against Household Member with a Deadly Weapon
Defendant does not address whether or not his New Mexico conviction in 2002
for aggravated assault against a household member with a deadly weapon qualifies as a
predicate violent felony under the ACCA. See generally doc. 1. It appears that this
conviction was pursuant to N.M.S.A. § 30‐3‐2(A), which was the precise crime at issue
In fact, given that Maldonado‐Palma involved only an assault, and Defendant’s conviction involved a
completed battery, the logic applies in even greater force here.
in Maldonado‐Palma. See PSR ¶ 39; 839 F.3d at 1247. As such, it also constitutes a
predicate ACCA felony. Should the Court determine that one, and only one, of the
felonies discussed previously not qualify as an ACCA predicate felony, I would still
recommend denial of resentencing on the basis of this 2002 conviction.
Defendant’s challenge to his sentence under Johnson II should be denied. Even
post‐Johnson II, his criminal history includes at least three violent felony convictions
which trigger the application of the ACCA’s fifteen‐year mandatory minimum and the
sentencing guideline enhancement under U.S.S.G. § 4B1.4(b).
Accordingly, I recommend that the Court DENY Defendant’s Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255, and dismiss this case with
GREGORY B. WORMUTH
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
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