Rivera v. United States of America

Filing 24

ORDER ADOPTING 18 REPORT AND RECOMMENDATIONS by District Judge C. LeRoy Hansen. IT IS ORDERED: Defendant/Movant Warren Rivera's Objection to Magistrate Court's Proposed Findings and Recommended Disposition 19 is OVERRULED; Rivera's Motion to Correct Sentence Pursuant to 28 U.S.C. 2255 1 is GRANTED; and a hearing will be set to resentence Defendant/Movant Warren Rivera in a separate order. (kg)

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

UNITED STATES OF AMERICA,
Plaintiff/Respondent,
vs.

No. CV 16-00882 LH/KRS
No. CR 11-01204 LH

WARREN RIVERA,
Defendant/Movant.

ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION AND GRANTING MOTION TO
CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
THIS MATTER is before the Court on the Magistrate Judge’s Proposed Findings and
Recommended Disposition (“PFRD”) filed April 18, 2017 (CV Doc. 18; CR Doc. 194) and on
the Movant Warren Rivera’s Objection to the Magistrate Judge’s PFRD filed May 2, 2017 (CV
Doc. 19; CR Doc. 195). The Court will adopt the Magistrate Judge’s PFRD, overrule Movant
Rivera’s Objection, and grant Rivera’s Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255
(CV Doc. 1; CR Doc. 178).
In her PFRD, the Magistrate Judge recommended that the Court deny Movant Rivera’s
claim that his prior convictions for aggravated assault (deadly weapon), aggravated battery
against a household member (great bodily harm), and aggravated assault against a household
member (deadly weapon) no longer qualify as violent felonies under the holding in Johnson v.
United States, 135 S. Ct. 2551 (2015). (CV Doc. 18 at 2-6; CR Doc. 194 at 2-6). The Magistrate
Judge also recommended further briefing on Movant Rivera’s claim that one of his aggravated
assault charges was resolved by the State of New Mexico through a conditional discharge, rather
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than a conviction, and therefore does not qualify as a predicate conviction for purposes of an
enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(b), and whether
the one-year statute of limitations in 28 U.S.C. § 2255(f) would bar that claim. (CV Doc. 18 at
4-7; CR Doc. 194 at 4-7).
Movant Rivera objected to the Magistrate Judge’s recommendation that his claim based
on Johnson v. United States be denied. (CV Doc. 19 at 1-2; CR Doc. 195 at 1-2). Rivera did not
object to the Magistrate Judge’s recommendation for further briefing on his claim of conditional
discharge. (CV Doc. 19 at 2; CR Doc. 195 at 2). On May 3, 2017, the United States filed its
Response to the PFRD, conceding Rivera’s conditional discharge claim and waiving its
procedural defense of the § 2255(f) statute of limitations. (CV Doc. 20; CR Doc. 196).
The Court has reviewed the PFRD, the Movant’s Objection, the United States Response,
and the record in CR 11-01204 LH. Based on the holding in United States v. Maldonado-Palma,
830 F.3d 1244 (10th Cir. 2016), the Court concurs in the Magistrate Judge’s recommendation that
Movant Rivera’s claim under Johnson v. United States be denied. The Court overrules Rivera’s
objection and adopts the PFRD.

The Court also finds that, based on the United States’

concession of Rivera’s conditional discharge claim and waiver of the procedural defense of the
statute of limitations, Rivera no longer has three predict convictions necessary for an enhanced
sentence under 18 U.S.C. § 924(e)(2)(b). The Court concludes that Rivera’s Motion to Correct
Sentence Pursuant to 28 U.S.C. § 2255 (CV Doc. 1; CR Doc. 178) should be granted and Rivera
should be resentenced.
IT IS ORDERED:
(1) Defendant/Movant Warren Rivera’s Objection to Magistrate Court’s Proposed
Findings and Recommended Disposition (CV Doc. 19; CR Doc. 195) is OVERRULED;

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(2) the Magistrate Judge’s Proposed Findings and Recommended Disposition (“PFRD”)
filed April 18, 2017 (CV Doc. 18; CR Doc. 194) is ADOPTED as an order of the Court;
(3) Rivera’s Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 (CV Doc. 1; CR
Doc. 178) is GRANTED; and
(4) a hearing will be set to resentence Defendant/Movant Warren Rivera in a separate
order.

______________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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