Sarracino v. USA

Filing 16

Proposed Findings and Recommended Disposition by Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 1 Petitioner's 2255 Motion to Vacate Illegal Career Offender Sentence under Johnson v. United States be DENIED as outlined in the Proposed Findings and Recommended Disposition. Objections to PF&RD due by 7/10/17. 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).) (jrt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PETER ALLEN SARRACINO,
Petitioner,
v.

No.

CV 16-734 MCA/CG
CR 95-210 MCA

UNITED STATES OF AMERICA,
Respondent.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner Peter Allen Sarracino’s 2255
Motion to Vacate Illegal Career Offender Sentence Under Johnson v. United States (the
“Motion”), (CV Doc. 1),1 filed June 27, 2016; Petitioner’s Brief in Support of Motion to
Vacate Illegal Career Offender Sentence Under Johnson v. United States (Doc. 1 (the
“Supplemental Brief”), (CV Doc. 11), filed April 15, 2017; Respondent United States of
America’s Brief in Opposition to Defendant-Petitioner’s Motion to Vacate Illegal Career
Offender Sentence Under Johnson v. United States (the “Response”), (CV Doc. 12),
filed May 4, 2017; and Petitioner’s Reply Brief in Support of Motion to Vacate Illegal
Career Offender Sentence Under Johnson v. United States (Doc. 1) (the “Reply”), (CV
Doc. 13), filed May 25, 2017.
Petitioner moves the Court to vacate his sentence and resentence him, arguing
his sentence as a “career offender” violates his Constitutional right to due process under
the Supreme Court of the United States’ decision in Johnson v. United States, 135 S.
Ct. 2551 (2016). (CV Doc. 1 at 1). After considering the parties’ filings and the relevant
law, the Court concludes that Johnson retroactively applies to the mandatory
1

Citations to “CV Doc. __” refer to documents in case number CV 16-734 MCA/CG. Citations to “CR Doc.
__” refer to documents in case number CR 95-210-MCA.

Sentencing Guidelines, but that the sentencing court correctly considered Petitioner a
career offender because second degree murder, assault with a dangerous weapon, and
voluntary manslaughter are “crimes of violence.” The Court therefore RECOMMENDS
that Petitioner’s Motion be DENIED.
I.

Background
On January 16, 1996, a jury found Petitioner guilty of kidnapping in violation of 18

U.S.C. § 1201 and of second-degree murder in violation of 18 U.S.C. § 1111(a). (CR
Docs. 96, 97). Petitioner’s presentence report (“PSR”) concluded Petitioner was a
“career offender” based on Petitioner’s prior convictions for assault with a dangerous
weapon in violation of federal law and voluntary manslaughter in violation of New
Mexico law. (CV Doc 1 at 2; CV Doc. 12 at 2).2 Petitioner ultimately received concurrent
life sentences. (CR Doc. 127).
When Petitioner was sentenced, the United States Sentencing Guidelines
(“U.S.S.G” or “Guidelines”) defined a “career offender” in part as a defendant who had
an underlying conviction and at least two prior convictions for “crimes of violence.”
U.S.S.G. § 4B1.1 (1995). The Guidelines further defined “crime of violence” as any
federal or state criminal felony that fell within three clauses: (1) if the offense “has as an
element the use, attempted use, or threatened use of physical force against the person
of another” (the “elements clause”); (2) if the offense is “burglary of a dwelling, arson, or
extortion” (the “enumerated offense clause”); or (3) if the offense “otherwise involves

2

Neither party has provided the PSR, but they agree to these facts. The parties disagree, however, on
what Petitioner’s Sentencing Guidelines range actually was. Petitioner states his range was 360 months
to life, (CV Doc. 1 at 2), while Respondent states Petitioner’s range was simply life imprisonment and that
Petitioner’s range would have been life imprisonment even without the career offender enhancement, (CV
Doc. 12 at 2). Nonetheless, neither party argues the significance of this discrepancy.

2

conduct that presents a serious potential risk of physical injury to another” (the “residual
clause”). Id. § 4B1.2(1)(i)-(ii).
On June 27, 2016, Petitioner filed the instant Motion, arguing his sentence
violates his Constitutional rights following the Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2551 (2016). The Supreme Court held in Johnson that the
residual clause in the Armed Career Criminal Act (“ACCA”), which is identical to the
residual clause in § 4B1.2, was unconstitutionally vague and may not be used to impose
an increased sentence. Johnson, 135 S. Ct. at 2563. Although the Supreme Court
recently held that Johnson was inapplicable to the advisory Guidelines, Petitioner
argues Johnson applies to his case because the Guidelines were mandatory when he
was sentenced. Finally, Petitioner contends neither his underlying or prior convictions
qualify as crimes of violence except under the residual clause. Therefore, he argues, he
is entitled to be resentenced without being considered a career offender.
Respondent counters that Johnson is inapplicable to either the advisory or
mandatory Guidelines. Further, Respondent argues, if Johnson applies to the
mandatory Guidelines, it only applies prospectively rather than retroactively, so
Petitioner is still not entitled to relief. Lastly, Respondent claims that even if Johnson
applies retroactively to the mandatory Guidelines, voluntary manslaughter and assault
with a dangerous weapon are crimes of violence, so Petitioner was properly deemed a
career offender.
Thus, the issues before the Court are: whether Johnson applies to the mandatory
Sentencing Guidelines; whether Johnson applies retroactively or prospectively; and

3

whether Petitioner’s crimes are crimes of violence under § 4B1.2 absent the residual
clause.
II.

Analysis

a. Review under 28 U.S.C. § 2255
28 U.S.C. § 2255 provides that prisoners in federal custody may challenge their
sentences if: (1) their sentence was imposed in violation of the United States
Constitution or federal law; (2) the sentencing court had no jurisdiction to impose the
sentence; (3) the sentence exceeded the maximum authorized sentence; or (4) the
sentence is otherwise subject to collateral review. § 2255(a). Here, Petitioner claims his
sentence was imposed in violation of the United States Constitution. If the Court finds
that a sentence infringed Petitioner’s constitutional rights and is subject to collateral
review, the Court must vacate the sentence and discharge, resentence, or correct the
sentence as the Court believes appropriate. § 2255(b).
b. Whether Johnson applies to the pre-Booker, mandatory Guidelines
The first issue before the Court is whether Johnson applies to the mandatory
Guidelines. As explained above, the Supreme Court in Johnson held that the residual
clause of the ACCA is unconstitutionally vague. Johnson, 135 S. Ct. 2551, 2557. The
ACCA’s residual clause “both denies fair notice to defendants and invites arbitrary
enforcement from judges.” Id. The Johnson Court discussed the fractured and confusing
jurisprudence interpreting the residual clause, stating “this Court’s repeated attempts
and repeated failures to craft a principled and objective standard out of the residual
clause confirm its hopeless indeterminacy.” Id. at 2558; see id. at 2559-60 (discussing
lower courts’ efforts to make sense of the residual clause).

4

In Beckles, the Supreme Court considered whether Johnson applied to the
residual clause in § 4B1.2 of the advisory Guidelines. Beckles, 137 S. Ct. at 890. The
Supreme Court squarely answered “no,” holding that the advisory Guidelines are not
subject to vagueness challenges. Id. In so holding, the Beckles Court did not find that
the residual clause in § 4B1.2 was clear and unambiguous. Rather, the Court reasoned
that, “[b]ecause they merely guide the district courts’ discretion, the Guidelines are not
amenable to vagueness challenges.” Id. at 894. Unlike the ACCA, which is a law, the
advisory Guidelines “do not implicate the twin concerns underlying vagueness doctrine–
providing notice and preventing arbitrary enforcement.” Id. at 894. First, regarding
notice, “even perfectly clear Guidelines could not provide notice to a person who seeks
to regulate his conduct” because judges retain broad discretion to increase a
defendant’s sentence. Id. Second, the Guidelines do not invite arbitrary enforcement,
they simply “advise sentencing courts how to exercise their discretion within the bounds
established by Congress.” Id. at 895.
However, as the Beckles Court acknowledged, the Guidelines were not always
advisory. Id. at 894. The Guidelines were initially mandatory, and in United States v.
Booker the Supreme Court held that the mandatory Guidelines violated the Sixth
Amendment. 543 U.S. at 233-37. Importantly, the Booker Court made clear that the
mandatory Guidelines did much more than merely guide or advise the district courts’
discretion. First, the Booker Court repeatedly emphasized that the mandatory
Guidelines circumscribed district judges’ discretion: “If the Guidelines as written could
be read as merely advisory provisions that recommended, rather than required, the
selection of particular sentences . . . their use would not implicate the Sixth

5

Amendment.” Id. at 233. The Booker Court stated directly that the “Guidelines as
written, however, are not advisory; they are mandatory and binding on all judges.” Id. at
234; see also id. (“In most cases . . . the judge is bound to impose a sentence within the
Guidelines range.”); id. at 235 (“Booker’s case illustrates the mandatory nature of the
Guidelines.”). Second, because they were binding on judges, the Supreme Court
“consistently held that the Guidelines ha[d] the force and effect of laws.” Id. at 234
(citing Mistretta v. U.S., 488 U.S. 361, 391 (1989); Stinson v. U.S., 508 U.S. 36, 42
(1993)). Although judges had limited discretion to deviate from the Guidelines
“prescribed sentencing range,” that did not avoid a constitutional problem. Id. at 234-35.
Considering Johnson, Beckles, and Booker, the Court finds Johnson applies to
the mandatory Guidelines. The Beckles opinion rests almost exclusively on the
premises that the advisory Guidelines do not bind the district court’s discretion and do
not have the force and effect of law. Beckles, 137 S. Ct. at 134-35. But Booker makes
clear that the mandatory Guidelines severely limited judges’ discretion and had the
force and effect of laws that fix the permissible range of sentences. Booker, 543 U.S. at
233-35; see Alleyne v. U.S., 133 S. Ct. 2151, 2160 (stating “the legally prescribed range
is the penalty affixed to the crime”). Because Petitioner was sentenced pre-Booker,
Beckles is inapplicable to his case. The Court therefore finds that the Johnson holding
applies to the mandatory Guidelines and Petitioner’s sentence.
Respondent’s protests to the contrary are unconvincing. First, Respondent
argues that because the Guidelines do not establish minimum and maximum sentences
they do not have the force and effect of laws. (CV Doc. 12 at 5-6). This argument
obscures the pre-Booker Guidelines’ mandatory effects. The Guidelines were no less

6

mandatory simply because they mandated a narrower range within broad statutory
limits. See Booker, 543 U.S. at 233. Respondent also argues that district judges’
authority to depart from the Guidelines means they did not “fix the range of permissible
sentences.” (CV Doc. 12 at 6). However, in Booker, “[t]he availability of a departure in
specified circumstances [did] not avoid the constitutional issue.” Id. at 234. Here again,
the district courts’ limited discretion does not negate the fact that the district judge was
“bound to impose a sentence within the Guidelines range.” Id.; see Hawkins v. U.S., 706
F.3d 820, 822 (7th Cir. 2013) (“Before Booker, the guidelines were the practical
equivalent of a statute. Departures were permitted on specified grounds, but in that
respect the guidelines were no different from statutes, which often specify exceptions.”).
Accordingly, for the foregoing reasons, the Court finds that the mandatory
Guidelines are subject to vagueness challenges, that Johnson applies to the mandatory
Guidelines, and that, following Johnson, the residual clause of § 4B1.2 is
unconstitutionally vague.
c. Whether Johnson, as applied to the Guidelines, is retroactive or prospective
The second issue before the Court is whether the ruling in Johnson as applied to §
4B1.2(a)(2) is retroactively applicable on collateral review. Petitioner argues that
Johnson announced a substantive rule that is retroactively applicable on collateral
review, such as in this case. Respondent contends that Johnson as applied to the
Guidelines would operate as a procedural rule. Procedural rules are only applicable if
they are “watershed,” which Respondent argues Johnson would not be.
Generally, “new constitutional rules of criminal procedure” do not apply to cases
that were final before the rule was announced. Teague v. Lane, 489 U.S. 288, 310

7

(1989). Two types of new rules, however, apply retroactively on collateral review:
“substantive” rules, Schriro v. Summerlin, 542 U.S. 348 (2004), and “watershed rules of
criminal procedure,” Saffle v. Parks, 494 U.S. 484 (1990). A substantive rule “alters the
range of conduct or the class of persons that the law punishes.” Schriro, 542 U.S. at
351-352, 353 (citation omitted). Substantive rules accomplish this by “narrow[ing] the
scope of a criminal statute by interpreting its terms” or “plac[ing] particular conduct or
persons covered by the statute beyond the State’s power to punish.” Id. Substantive
rules “apply retroactively because they ‘necessarily carry a significant risk that a
defendant stands convicted of an act that the law does not make criminal’ or faces a
punishment that the law cannot impose upon him.” Id. at 352 (quoting Bousley v. U.S.,
523 U.S. 614, 620 (1998)); see Saffle, 494 U.S. at 495 (proposed rule not substantive
because it “would neither decriminalize a class of conduct nor prohibit the imposition of
capital punishment on a particular class of persons”).
Procedural rules, on the other hand, “regulate only the manner of determining the
defendant’s culpability.” Schriro, 542 U.S. at 353. Procedural rules “merely raise the
possibility that someone convicted with the use of the invalidated procedure might have
been acquitted otherwise.” Id. at 352. Procedural rules are not normally applied
retroactively. Id. Retroactivity is conferred only on “watershed” procedural rules, i.e.
those rules “implicating the fundamental fairness and accuracy of the criminal
proceeding.” Saffle, 494 U.S. at 495. The Supreme Court often cites Gideon v.
Wainwright, 372 U.S. 335 (1963), which held that criminal defendants have the
constitutional right to counsel at trial for serious offenses, as an example of a watershed
procedural rule. Id.

8

In Welch v. United States, 136 S. Ct. 1257, 1265 (2016), the Supreme Court held
that Johnson announced a substantive rule. First, the Supreme Court reasoned that
Johnson “changed the substantive reach of the [ACCA], altering ‘the range of conduct
or the class of persons that the [Act] punishes.’” Id. (quoting Schriro v. Summerlin, 542
U.S. 348, 353). After Johnson struck down the ACCA’s residual clause, “the same
person engaging in the same conduct is no longer subject to the [ACCA] and faces at
most 10 years in prison,” rather than at least 15 years. Id. The Supreme Court further
reasoned that the Johnson ruling could not be procedural because it “had nothing to do
with the range of permissible methods a court might use to determine whether a
defendant should be sentenced under the [ACCA].” Id. Unlike procedural rules,
“Johnson affected the reach of the underlying statute rather than the judicial procedures
by which the statute is applied.” Id. Therefore, the holding in Johnson was a substantive
rule that applied retroactively on collateral review. Id.
Following these general rules, and in light of Welch, applying Johnson to §
4B1.2(a)(2) operates as a substantive rule that applies retroactively on collateral review
to mandatory Guidelines cases. The Johnson Court directly held that “imposing an
increased sentence under the residual clause of the [ACCA] violates the Constitution’s
guarantee of due process.” Johnson, 135 S. Ct. at 2563. As the Supreme Court
recognized in Welch, Johnson “alter[ed] the range of conduct or the class of persons
that the law punishes.” Welch, 136 S. Ct. at 1265 (quoting Schriro, 542 U.S. at 351-352,
353 (citation omitted)). Johnson narrowed the scope of the ACCA by eliminating the
residual clause, thereby “plac[ing] particular conduct or persons covered by the statute
beyond the State’s power to punish.” Schriro, 542 U.S. at 351-352, 353 (citation

9

omitted). Similarly, in pre-Booker cases, applying Johnson to § 4B1.2 “alters the range
of conduct or the class of persons” that the Guidelines punish through a career offender
enhancement and places particular conduct outside the scope of the career offender
enhancement. Schriro, 542 U.S. at 351-352, 353 (citation omitted). A defendant
sentenced in reliance on the residual clause “faces a punishment that the law cannot
impose upon him.” Id. The two residual clauses operate identically, especially under the
mandatory Guidelines. Therefore, Johnson as applied to § 4B1.2 is a substantive rule
that must be given retroactive effect on collateral review in mandatory Guidelines cases
such as this one.
Respondent argues that applying Johnson to the Guidelines would create a
procedural rule because the Guidelines do not trigger mandatory minimums like the
ACCA does. (CV Doc. 12 at 7). Respondent further argues that although miscalculation
of the Guidelines range may be procedural error, it “is not illegal or unlawful as in a
case” under the ACCA. Id. Finally, Respondent insists that a judge’s authority to vary
from the Guidelines means a sentencing enhancement is a mere procedural step. Id. at
8-9. Simply put, several courts have considered and rejected these exact arguments,
opting instead to follow the logic in Johnson and Welch. See, e.g., In re Patrick, 833
F.3d 584, 587-90 (6th Cir. 2016) (holding Johnson, as applied to Guidelines, is
substantive rather than procedural); In re Hubbard, 825 F.3d 225, 233-35 (4th Cir. 2016)
(same); Andrews v. U.S., 2016 WL 4734593 at *4-5 (D. Utah Sept. 9, 2016)
(unpublished) (same). Here again, the mandatory, binding nature of the pre-Booker
weighs in favor of finding that Johnson applies, as the Guidelines had the “force and
effect of laws.” See Golicov v. Lynch, 837 F.3d 1065, 1074-75 (10th Cir. 2016) (noting

10

the Tenth Circuit has regularly comingled ACCA, Guidelines, and 18 U.S.C. § 16
precedent “without regard to the textual differences between the various provisions”).3
d. Whether Petitioner’s predicate crimes are crimes of violence
The last issues before the Court are whether Petitioner’s convictions for second
degree murder in violation of 18 U.S.C. § 1111(a), assault with a dangerous weapon in
violation of 18 U.S.C. § 113(a)(3), and voluntary manslaughter in violation of N.M. Stat.
Ann. § 30-2-3(A) are convictions for crimes of violence without invoking the residual
clause. The Court will recite general principles governing its analysis and then address
each conviction in turn.
To determine whether a particular conviction qualifies as a crime of violence
under the Guidelines’ elements clause, courts “apply a categorical approach that looks
only to the words of a statute and judicial interpretations of it, rather than to the conduct
of any particular defendant convicted of that crime.” U.S. v. McConnell, 605 F.3d 822,
825 (10th Cir. 2010); U.S. v. Ramon Silva, 608 F.3d 663, 669 (10th Cir. 2010). Under
the categorical approach, the court “must presume that the conviction ‘rested upon
[nothing] more than the least of th[e] acts’ criminalized” by the statute. Moncrieffe v.
Holder, 133 S. Ct. 1678, 1684 (2013) (quotation and alteration in the original) (quoting
Johnson v. U.S., 559 U.S. 133 (2010)). However, the “focus on the minimum conduct
criminalized . . . is not an invitation to apply ‘legal imagination’ to the state offense; there
3

Respondent very briefly argues that Johnson does not apply to Petitioner’s Motion and the Motion
should be dismissed because it is time-barred under § 2255(f). (CV Doc. 12 at 8-10). Although
Respondent frames its argument under § 2255(f), Respondent actually substantively argues that
Petitioner’s Motion does not rely on a “new rule of constitutional law, made retroactive to cases on
collateral review” under § 2255(h)(2), notwithstanding that the Tenth Circuit has already certified
Petitioner’s Motion under § 2255(h). (CV Doc. 4). As the Court has exhaustively discussed thus far,
Petitioner relies on the newly recognized right in Johnson to not have his sentence increased in reliance
on the residual clause, which the Supreme Court made retroactive in Welch. See Johnson, 135 S. Ct.
2551, 2557; Welch, 136 S Ct. at 1263 (“It is undisputed that Johnson announced a new rule.”).

11

must be a ‘realistic probability, not a theoretical possibility’” that the crime is not a crime
of violence. Id. at 1684-85 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007)).
Under the Guidelines’ elements clause, an offense is a crime of violence if it “has
as an element the use, attempted use, or threatened use of physical force against the
person of another.” U.S.S.G. § 4B1(1)(i). “Physical force” means “violent force–that is,
force capable of causing physical pain or injury to another person.” Johnson v. U.S.,
559 U.S. 133, 140 (2010); see U.S. v. Armijo, 651 F.3d 1226, 1231 (noting ACCA
analysis applies to the Guidelines). The “slightest offensive touching” does not satisfy
the elements clause. Johnson, 559 U.S. at 139-40. Force may be “used” against
another’s person both directly and indirectly. U.S. v. Castleman, 134 S. Ct. 1405, 141415 (2014) (“That the harm occurs indirectly, rather than directly (as with a kick or
punch), does not matter.”). By requiring “direct” use of force, “one could say that pulling
the trigger on a gun is not a ‘use of force’ because it is the bullet, not the trigger, that
actually strikes the victim.” Id. at 1415. The Supreme Court rejected that interpretation
and the argument that poisoning does not require use of force. Id. (explaining that
poison’s physical force is its effect, not its administration). Although Castleman
interprets a statute defining “misdemeanor crime of domestic violence,” Justice Scalia
agreed that “it is impossible to cause bodily injury without using force ‘capable of’
producing that result” under the ACCA’s elements clause. Id. at 1416-17 (Scalia, J.,
concurring in the judgment).
1. Second Degree Murder in violation of 18 U.S.C. § 1111(a)

12

As discussed above, the Guidelines define “career offender” as a defendant with
an underlying conviction and at least two prior convictions for “crimes of violence.” §
4B1.1. Petitioner’s underlying conviction was second degree murder in violation of 18
U.S.C. § 1111(a) (‘federal second degree murder”). (CV Doc. 1 at 12-13). Petitioner
argues federal second degree murder is not a crime of violence after Johnson because
it was not an enumerated offense and does not satisfy the elements clause. Id. at 12; §
4B1.1(1)(i). Respondent did not respond to Petitioner’s arguments regarding federal
second degree murder.
Federal law defines murder broadly as “the unlawful killing of a human being with
malice aforethought.” § 1111(a) (1994). When Petitioner was convicted, first degree
murder was
[e]very murder perpetrated by poison, lying in wait, or any other kind of
willful, deliberate, malicious, and premeditated killing; or committed in the
perpetration of, or attempt to perpetrate, any arson, escape, murder,
kidnapping, treason, espionage, sabotage, aggravated sexual abuse or
sexual abuse, burglary, or robbery; or perpetrated from a premeditated
design unlawfully and maliciously to effect the death of any human being
other than him who is killed.
Id. Second degree murder was defined as “any other murder.” Id. Put differently, second
degree murder is a homicide committed with malice aforethought that is not perpetrated
by poison, lying in wait, or any other kind of willful, deliberate, or premeditated killing, or
otherwise committed in the commission of the enumerated felonies. “Malice
aforethought” may be established four ways: (1) intent to kill other than willful,
deliberate, or premeditated; (2) intent to do serious bodily injury; (3) a depraved-heart;
or (4) the commission of a felony other than those specified as first degree murder. U.S.
v. Pearson, 203 F.3d 1243, 1271 (10th Cir. 2000).

13

Petitioner accurately notes that murder was not an enumerated offense in the
Guidelines in 1995, though it was listed in the Commentary. Application Note 2,
U.S.S.G. § 4B1.2 (1995) (“‘Crime of violence’ includes murder . . .”). Petitioner is also
technically correct that federal second degree murder does not have as an element the
use, threatened use, or attempted use of force against the person of another; all that §
1111(a) requires is that the defendant commit a homicide with malice aforethought that
is not designated as first degree murder. However, Petitioner does no more than leave
it to the Court’s “legal imagination” to conceive of how second degree murder may be
committed without violent physical force against the person of another. Petitioner has
not cited any case in which a defendant was convicted of federal second degree murder
without the use of force. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)
(providing a defendant shows a “realistic probability” instead of a “theoretical possibility”
by citing his own or other cases). This is insufficient to show that federal second degree
murder is not a crime of violence.
Further, the Fourth Circuit Court of Appeals and the District Court for the District
of Utah have considered whether federal second degree murder is a crime of violence
and resoundingly answered affirmatively. See In re Irby, __ F.3d. __, 2017 WL 2366996
(4th Cir. June 1, 2017); U.S. v. Checora, 155 F.Supp.3d 1192 (D. Utah 2015). In Irby,
the Fourth Circuit held that federal second degree retaliatory murder is a crime of
violence under the elements clause “because unlawfully killing another human being
requires the use of force ‘capable of causing physical pain or injury to another person.’”
Irby, 2017 WL 2366996 at *4 (quoting U.S. v. Luskin, 926 F.2d 372 (4th Cir. 1991)). The
Fourth Circuit reasoned that it would be absurd to consider less heinous crimes like

14

robbery and burglary crimes of violence, but not murder. Id. at *5. In Checora, the court
similarly found that federal second degree murder is a crime of violence under the
elements clause because “it is impossible to cause death without applying physical
force.” Checora, 155 F.Supp.3d at 1198; accord U.S. v. Moreno-Aguilar, 198 F.Supp.3d
548, 553-54 (holding Maryland murder a crime of violence because murder requires
force and it would be absurd to consider it not a crime of violence); but see U.S. v.
Watts, 2017 WL 411341 (D. Kan. Jan. 31, 2017) (unpublished) (holding Missouri
second degree felony murder not a crime of violence because it may be committed in
the commission of nonviolent felonies). Accordingly, the Court finds second degree
murder in violation of § 1111(a) is a crime of violence under the elements clause of §
4B1.2.
Petitioner cites United States v. Perez-Vargas, 414 F.3d 1282, 1286 (10th Cir.
2005), for examples of how a defendant could hypothetically commit second degree
murder without “using” force. Perez-Vargas is not a federal second degree murder case;
rather, the Tenth Circuit posed three hypothetical examples of how someone could
commit Colorado third degree assault using force indirectly: firing a gun into the air,
placing a barrier in front of someone’s car, and exposing someone to dangerous
chemicals. Id. Since Castleman, several courts have rejected the argument that force
must be “used” directly. See, e.g., U.S. v. Rice, 813 F.3d 704, 706 (8th Cir. 2016)
(following Castleman rather than Perez-Vargas); U.S. v. Pikyavit, 2017 WL 1288559 at
*4-7 (D. Utah Apr. 6, 2017) (unpublished), appeal docketed, No. 17-4068 (10th Cir. May
1, 2017) (finding Castleman abrogated Perez-Vargas); U.S. v. Breshers, 2017 WL
2378349 at *2 n.2 (D. Kan. June 1, 2017) (unpublished) (agreeing Castleman limited

15

Perez-Vargas’s holding). The Court joins others in following Castleman rather than
Perez-Vargas.
2. Assault with a Dangerous Weapon in violation of 18 U.S.C. § 113(a)(3)
Turning to Petitioner’s prior convictions, Petitioner first contends that assault with
a dangerous weapon in violation of 18 U.S.C. § 113(a)(3) is not a crime of violence
because it does not require the use of “violent force” to commit. (CV Doc. 1 at 10-11).
Respondent counters that assault with a dangerous weapon is a crime of violence
under the Guidelines’ Commentary and the elements clause. (CV Doc. 12 at 17-21).
A conviction for violating § 113(a)(3) necessitates proof of (1) an assault (2) with
a dangerous weapon, and (3) intent to cause bodily harm. U.S. v. Duran, 127 F.3d 911,
915 (10th Cir. 1997). Conviction under § 113(a)(3) does not require proof of any actual
physical contact, id., but it does require specific intent to do bodily harm, U.S. v. Abeyta,
27 F.3d 470, 474 (10th Cir. 1994). Although the statute does not define “assault,” courts
presume Congress intended to incorporate assault’s common law definition. Brundage
v. U.S., 365 F.3d 616, 619 (10th Cir. 1966). “Assault” therefore includes an attempted
battery or “‘placing another in reasonable apprehension of a battery.’” U.S. v. Gauvin,
173 F.3d 798, 802 (10th Cir. 1999) (quoting Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law, § 7.16 (1986)).
The Tenth Circuit has held that both attempted-battery and “apprehension
causing” assault with a deadly weapon are crimes of violence. See U.S. v. Taylor, 843
F.3d 1215 (10th Cir. 2016) (finding Oklahoma assault and battery with a dangerous
weapon a crime of violence for purposes of § 4B1.2); U.S. v. Mitchell, 653 Fed. Appx.
639 (10th Cir. 2016) (unpubslished) (holding Oklahoma assault with a dangerous

16

weapon a crime of violence); U.S. v. Ramon Silva, 608 F.3d 663, 674 (10th Cir. 2010)
(holding New Mexico assault with a deadly weapon is a violent felony under the ACCA);
U.S. v. Maldonado-Palma, 839 F.3d 1244, 1250-51 (10th Cir. 2016) (extending Ramon
Silva to Guidelines § 2L1.2). Regarding apprehension causing assault, the Tenth Circuit
reasoned “[t]hreatening or engaging in menacing conduct toward a victim, with a
weapon capable of producing death or great bodily harm, threatens the use of ‘violent
force’ because in committing such an act, the aggressor communicates to his victim that
he will potentially use ‘violent force’ against the victim in the near-future.” Ramon Silva,
608 F.3d at 670. Further, apprehension causing assault “always has the potential to
lead to ‘violent force.’” Id. As for attempted-battery assault, “an attempted-battery
assault contains as an element the attempted use of force, not only the threatened use
force. With the addition of a deadly or dangerous weapon, therefore, an attemptedbattery assault is a crime of violence under the elements clause.” Mitchell, 653 Fed.
Appx. at 645.
Although Mitchell involved an Oklahoma statute, rather than § 113(a)(3), the
Court sees no reason why the same analysis and conclusion should not apply to §
113(a)(3). The Oklahoma statute at issue in Mitchell criminalized “either an attemptedbattery assault or an apprehension-causing assault–with a weapon capable of causing
great bodily harm.” Id. As explained above, so too does § 113(a)(3). Thus, the Court
finds that § 113(a)(3) is a crime of violence under the elements clause.
3. Voluntary Manslaughter in violation of N.M. Stat. Ann. § 30-2-3(A).
Finally, Petitioner claims that voluntary manslaughter in New Mexico is not a
crime of violence because it does not have the use of force as an element. (CV Doc. 1

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at 6-9). Petitioner also argues that voluntary manslaughter may be committed with a
reckless mens rea, which disqualifies voluntary manslaughter as a crime of violence. Id.
at 8-9). Respondent counters that New Mexico manslaughter is a crime of violence
under both the elements clause and under the Commentary to Guidelines § 4B1.2. (CV
Doc. 19 at 18-20).
In order to qualify as a crime of violence under the elements clause, a statute
must prohibit more than negligent, inadvertent, or accidental conduct. Leocal v.
Ashcroft, 543 U.S. 1, 9-10 (2004) (interpreting the elements clause of 18 U.S.C. §
16(a)). The Tenth Circuit has interpreted Leocal to mean that a statute with a mens rea
of recklessness does not qualify as a crime of violence under the elements clause. See
U.S. v. Zuniga-Soto, 527 F.3d 1110, 1123-24 (10th Cir. 2008) (interpreting Leocal and
Guidelines § 2L1.2). The Tenth Circuit and several other Circuit Courts of Appeals
agree that crimes requiring only a mens rea of recklessness, including homicides, are
not crimes of violence. See, e.g., U.S. v. Duran, 696 F.3d 1089 (10th Cir. 2012) (holding
Texas aggravated assault not a crime of violence under § 4B1.2 because it could be
committed with reckless mens rea); U.S. v. Woods, 576 F.3d 400, 410-11 (7th Cir.
2009) (holding Illinois involuntary manslaughter not a crime of violence under § 4B1.2(a)
because it may be committed with reckless mens rea) U.S. v. Torres-Villalobos, 487
F.3d 607, 616 (8th Cir. 2007) (holding Minnesota second-degree manslaughter not an
“aggravated felony”); U.S. v. Portela, 469 F.3d 496, 499 (6th Cir. 2006) (holding
vehicular homicide not a crime of violence for purposes of 18 U.S.C. § 16(b)); U.S. v.
Culbertson, 389 Fed. Appx. 515, 519-20 (6th Cir. 2010) (unpublished) (holding Michigan

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vehicular manslaughter not a violent felony under the ACCA because it requires only
gross negligence or recklessness).4
Specifically, the Tenth Circuit has held that Colorado’s version of manslaughter
was not a crime of violence under § 4B1.2 because it “involves only reckless conduct.”
U.S. v. Armijo, 651 F.3d 1226, 1237 (10th Cir. 2011). In Colorado, a defendant is guilty
of manslaughter if they “recklessly cause the death of another person.” Colo. Stat. Ann.
§ 18-3-104(1)(a). Colorado further requires showing a defendant consciously
disregarded a substantial and unjustifiable risk that he would cause the death of
another. People v. Hall, 999 P.2d 207, 217 (Colo. 2000). The Tenth Circuit concluded
this version of manslaughter is not a crime of violence, holding “only those versions of
manslaughter that involve intentional or purposeful behavior qualify as crimes of
violence for purposes of § 4B1.2(a).” Armijo, 651 F.3d at 1237. The court clarified in a
footnote that it intended its holding to apply to “voluntary manslaughter.” Id. at 1236
n.12.

4

The Court notes a recent line of Supreme Court cases potentially implying that reckless intent satisfies
the elements clause of § 4B1.2. See Voisine v. U.S., 136 S. Ct. 2272 (2016) (holding recklessness
suffices to commit a misdemeanor crime of domestic violence); U.S. v. Castleman, 134 S. Ct. 1405
(2014) (holding “force” includes “offensive touching”). These cases, however, are inapposite to Guidelines
cases, as they interpret a significantly different law. Voisine and Castleman interpret 18 U.S.C. §
922(g)(9), which prohibits individuals convicted of a “misdemeanor crime of violence” from possessing a
firearm. “Misdemeanor crime of violence” means, in part, an offense that “has, as an element, the use or
attempted use of physical force.” 18 U.S.C. § 921(a)(33)(A)(ii). In Castleman, the Supreme Court
interpreted that definition to include “offensive touching,” and in Voisine, the Court held that force may be
recklessly used. Castleman, 134 S. Ct. at 1410; Voisine, 136 S. Ct. 2280-82. But Castleman noted the
differences between “misdemeanor crime of violence” and “violent felony” in the ACCA. Castleman, 134
S. Ct. at 1410-13. While a misdemeanor crime of violence may be committed by “offensive touching,”
offensive touching is insufficient to commit a violent felony under the ACCA. Id. at 1410; Johnson, 559
U.S. at 139-40. Thus, because the ACCA requires more violent conduct than §922(g)(9), the ACCA and
Guidelines arguably require more than reckless intent. See Armijo, 651 F.3d at 1231 (noting ACCA
analysis applies to the Guidelines). Importantly, the Tenth Circuit has recognized this distinction between
the two lines of cases, U.S. v. Harris, 844 F.3d 1260, 1264-65 (10th Cir. 2017), and the “prevailing
position” among district courts is that Voisine does not apply to the ACCA. See U.S. v. Brown, __
F.Supp.3d __, 2017 WL 1383640 at *8 (D.D.C. Apr. 12, 2017) (collecting cases).

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Turning to the statute at issue here, New Mexico defines manslaughter as “the
unlawful killing of a human being without malice.” N.M. Stat. Ann. § 30-2-3 (2017).
Petitioner’s crime, voluntary manslaughter, is further defined as “manslaughter
committed upon a sudden quarrel or in the heat of passion.” § 30-2-3(A). In order to be
found guilty of violating § 30-2-3(A), the crime must have taken place in New Mexico
and the defendant must have: killed the victim; known “that his acts created a strong
probability of death or great bodily harm to the victim or third person;” and acted as a
result of sufficient provocation. U.J.I. 14-220 NMRA.
In contrast with Colorado manslaughter, New Mexico case law suggests
voluntary manslaughter must be committed intentionally and cannot be committed
accidentally. See State v. Lopez, 1968-NMSC-092, ¶ 14, 79 N.M. 282, 442 P.2d 594
(“That an accidental killing will not support a conviction of voluntary manslaughter goes
without saying.”); State v. Pruett, 1921-NMSC-110, 27 N.M. 576, 203 P. 840 (holding
instruction on involuntary manslaughter was error where evidence indicated homicide
was intentional). Voluntary manslaughter is typically a general intent crime, State v.
Jernigan, 2006-NMSC-003, ¶ 18, 139 N.M. 1, 127 P.3d 537, wherein the defendant
must at least “intend[] to cause the harmful act,” State v. Abeyta, 1995-NMSC-051, ¶
24, 120 N.M. 233, 901 P.2d 164.
Further, New Mexico courts have consistently described reckless manslaughter
as involuntary rather than voluntary. See State v. Harris, 1937-NMSC-046, ¶ 6, 41 N.M.
426, 70 P.2d 757 (affirming involuntary manslaughter conviction where evidence
showed defendant acted “so reckless, wanton, and willful as to show an utter disregard
for the safety of others”). The New Mexico Court of Appeals has defined “criminal

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negligence,” the mens rea of involuntary manslaughter, as “reckless, wanton or willful
conduct.” State v. Grubbs, 1973-NMCA-096, ¶ 5, 85 N.M. 365, 512 P.2d 693; see N.M.
Stat. Ann. § 30-2-3(b). More recently, the New Mexico Supreme Court declared “[t]he
showing of criminal negligence required for involuntary manslaughter . . . includes the
concept of recklessness.” State v. Henley, 2010-NMSC-039, ¶ 16, 148 N.M. 359, 237
P.3d 103.
Secondary sources bolster the conclusion that voluntary manslaughter cannot be
recklessly committed in New Mexico. According to one author, “[r]eckless killings can
fall within three degrees of criminal homicide–depraved mind first degree murder,
second degree murder, and involuntary manslaughter.” Leo M. Romero, Unintentional
Homicides Caused by Risk-Creating Conduct: Problems in Distinguishing Between
Depraved Mind Murder, Second Degree Murder, Involuntary Manslaughter, and
Noncriminal Homicide in New Mexico, 20 N.M. L. Rev. 55, 58 (1990). Notably absent is
voluntary manslaughter. The author further explains that, at common law, “[r]eckless or
grossly negligent conduct creating an unreasonable risk of death could serve as the
basis for involuntary manslaughter,” not voluntary manslaughter. Id. at 71. Finally, the
author postulates that if a homicide “was reckless with respect to the result of death, it is
involuntary manslaughter.” Leo M. Romero, New Mexico Mens Rea Doctrines and the
Uniform Criminal Jury Instructions: The Need for Revision, 8 N.M. L. Rev. 127, 130
(1978).
Given the preceding authority, the Court must conclude that New Mexico’s
version of voluntary manslaughter is a crime of violence under the elements clause of §
4B1.2. Although Petitioner is correct that reckless manslaughter is not a crime of

21

violence, New Mexico considers reckless manslaughter involuntary rather than
voluntary. New Mexico’s manslaughter statute does not define the mens rea necessary
to commit voluntary manslaughter, but case law, jury instructions, and scholarship show
that voluntary manslaughter requires more than recklessness–it must be committed
intentionally.
Further, similar to the analysis for federal second degree murder, voluntary
manslaughter must also be a crime of violence because it necessarily involves the use
of violent physical force. Intentional homicide, even with adequate provocation,
necessarily involves the use of force that is violent enough to kill. Again, Petitioner has
not cited any New Mexico case where a defendant was convicted of voluntary
manslaughter without using force. Accordingly, the Court finds that New Mexico
voluntary manslaughter is a crime of violence under the elements clause of § 4B1.2.
III.

Recommendation
For the foregoing reasons, the Court finds that Johnson applies retroactively to

the residual clause in the mandatory Guidelines’ § 4B1.2, but that Petitioner was
nevertheless correctly identified as a career offender because his underlying and prior
convictions were for crimes of violence under the Guidelines’ elements clause.
Consequently, Petitioner’s sentence does not violate his constitutional rights, and
Petitioner is ineligible for relief under § 2255.

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IT IS THEREFORE RECOMMENDED that Petitioner’s 2255 Motion to Vacate
Illegal Career Offender Sentence Under Johnson v. United States, (CV Doc. 1), be
DENIED.
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.

THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE

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