Woodside Credit, LLC v. Placencia et al
***FILED IN ERROR*** ORDER by District Judge Judith C. Herrera adopting #14 Report and Recommendations, granting #8 Plaintiff's Motion to Remand to State Court Pursuant to 28 U.S.C. 1447(c) (baw) Modified text on 2/8/2017 per chambers request (gr).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CV 16‐681‐JCH‐GBW
UNITED STATES OF AMERICA,
ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION, OVERRULING PETITIONER’S OBJECTIONS
AND DENYING PETITIONER’S MOTION
This matter is before the Court on Petitioner’s Objections to the Magistrate
Judge’s Proposed Findings and Recommended Disposition (doc. 11). Being fully
advised, the Court will overrule the objections, adopt the Proposed Findings and
Recommended Disposition (doc. 10), and deny Petitioner’s Motion (doc. 1).
On June 7, 2011, pursuant to a plea agreement, Petitioner pled guilty to an
indictment charging him with Felon in Possession of a Firearm and Ammunition in
violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). Cr. docs. 29, 30, 31. The plea
agreement included a provision entitled “Waiver of Appeal Rights.” Cr. doc. 30 ¶ 13.
Petitioner’s sentencing guideline range was determined pursuant to U.S.S.G. §
2K2.1. As reflected in the presentence report (PSR), Petitioner had been convicted in
North Dakota of burglary. PSR ¶ 34, 45. This burglary conviction was considered a
“crime of violence” under the definition found in U.S.S.G. § 4B1.2(a)(2)1 which subjected
him to a higher base offense level under U.S.S.G. § 2K2.1(a). PSR ¶ 34. Due to other
enhancements and a reduction for acceptance of responsibility, Petitioner’s total offense
level was 23. PSR ¶ 42. With a criminal history category of VI, Petitioner’s sentencing
guideline range was 92‐115 months. PSR ¶¶ 60, 91. After a sentencing hearing, the
Court imposed a sentence of 92 months.
Petitioner’s Motion argues that his conviction for burglary is no longer a crime of
violence in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Doc. 1 at 2‐5, 9‐13. He
contends that the Johnson decision should be applied retroactively to invalidate the
enhanced base offense level calculation. See id. at 6‐9. Consequently, he argues that he
should be resentenced with the properly calculated sentencing guideline range of 51‐63
months. Id. at 5, 15. The United States contends that Petitioner’s motion fails for three
reasons: (i) he waived his right to bring this collateral attack, (ii) the application of
Johnson to the guidelines should not be given retroactive effect, and (iii) his burglary
conviction remains a crime of violence under U.S.S.G. § 4B1.2(a)(2) after Johnson. See
generally doc. 5.
On January 12, 2017, the Magistrate Judge filed his Proposed Findings and
Recommended Disposition (PFRD). Doc. 10. He concluded that Petitioner’s Motion
This provision was amended on August 1, 2016. The amendment deleted the residual clause discussed
herein from the definition of “crime of violence.” The remainder of the definition remained the same.
Because it is the relevant provision, citations to U.S.S.G. § 4B1.2(a)(2) refer to the pre‐2016 amendment
does not fall within the scope of his waiver of collateral attack rights found in his plea
agreement. Therefore, he recommended rejecting the United States’ argument that the
Court should enforce the waiver here. Next, the Magistrate Judge concluded that the
application of Johnson to the guidelines would not have retroactive effect under the
Teague analysis, because it would be a non‐watershed procedural rule. Therefore, he
recommended denying Petitioner’s motion on that ground. Nonetheless, in case the
Court disagreed with the recommendation regarding non‐retroactivity, he considered
whether Petitioner’s conviction for North Dakota burglary remains a “crime of
violence” under U.S.S.G. § 2K2.1(a)(2), as defined in § 4B1.2(a) (2009), even after
redacting its residual clause. On that issue, he concluded that it does not. Therefore, if
the Court finds the application of Johnson to the guidelines to have retroactive effect, the
Magistrate Judge recommended granting Petitioner’s Motion.
On January 25, 2017, Petitioner filed Objections to the PFRD. Doc. 11. Petitioner
“objects solely to the finding that the application of the holding in Johnson v. United
States, 135 S. Ct. 2551 (2015) to the United States Sentencing Guidelines would be a non‐
watershed procedural rule, as such, would not have retroactive application to
[Petitioner’s] sentence.” Id. at 2. The United States filed no objections.
LEGAL STANDARD APPLICABLE TO OBJECTION
Petitioner’s Motion (doc. 1) was referred to Magistrate Judge Wormuth pursuant
to Title 28 U.S.C. § 636(b)(1)(B). See doc. 4. Under that referral provision, the Court’s
standard of review of a magistrate judge’s PFRD is de novo. See 28 U.S.C. § 636(b)(1)(C).
When resolving objections to a magistrate judge’s PFRD, “[t]he district judge must
determine de novo any part of the magistrate judge’s disposition that has been properly
objected to. The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” FED. R. CIV. P. 72(b)(3). The Tenth Circuit has held “that a party’s
objections to the magistrate judge’s report and recommendation must be both timely
and specific to preserve an issue for de novo review by the district court or for appellate
review.” United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). When
neither party objects to a finding or recommendation, no further review by the district
court is required. See Thomas v. Arn, 474 U.S. 140, 151‐52 (1985). “Issues raised for the
first time in objections to the magistrate judge’s recommendation are deemed waived.”
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).
ADOPTION OF FINDINGS AND RECOMMENDATIONS WITHOUT OBJECTIONS
Neither party objected to the Magistrate Judge’s findings and recommendations
regarding the waiver issue or the North Dakota burglary conviction issue. The Court
agrees with the analysis of those issues and adopts it. Therefore, the Court finds that
Petitioner’s Motion does not fall within the scope of his waiver of collateral attack rights
found in his plea agreement. Therefore, the United States’ effort to enforce the waiver is
denied. Furthermore, the Court finds that Petitioner’s North Dakota conviction for
Class C felony burglary would not be a “crime of violence” under U.S.S.G. § 2K2.1(a)(2),
as defined in § 4B1.2(a) (2009), after redacting its residual clause.
The sole disputed issue is whether the rule on which Petitioner’s argument is
based would be applicable retroactively. Petitioner’s argument has its genesis in
Johnson. In that case, the Supreme Court held that the residual clause of the definition
of “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(2)(B) – “or otherwise involves conduct that presents a serious potential risk of
physical injury to another” – is unconstitutionally vague. 135 S. Ct. at 2563. Therefore,
individuals could not be subject to the enhanced statutory punishment under the
ACCA if their underlying prior convictions offered as the basis for its application
qualified as “violent felonies” only under the vague residual clause. Id. The Supreme
Court announced that Johnson would apply retroactively on collateral review in Welch v.
United States, reasoning that Johnson announced a substantive new rule. 136 S. Ct. 1257,
However, Petitioner was not sentenced pursuant to the ACCA. Instead, he
received an enhancement to his sentencing guideline range pursuant to the definition of
“crime of violence” in U.S.S.G. § 4B1.2. That guideline provision, which resulted in a
six‐level increase to the base offense level pursuant to U.S.S.G. § 2K2.1(a)(2), contained a
residual clause identical to the residual clause in the ACCA. See U.S.S.G. § 4B1.2(a)(2);
18 U.S.C. § 924(e)(2)(B)(ii). In order to be entitled to resentencing on the basis that his
conviction for burglary is not a “crime of violence,” Petitioner must first establish that
the residual clause of the guideline provision is also unconstitutional for vagueness, and
that his sentence was enhanced pursuant to that clause. In United States v. Madrid, 805
F.3d 1204, 1210‐11 (10th Cir. 2015), on direct appeal, the Tenth Circuit indeed held that
use of the residual clause in U.S.S.G. § 4B1.2 to calculate and enhance sentencing
guideline ranges is unconstitutional because the clause is void for vagueness.
Consequently, the United States has conceded this point. Nonetheless, because
Petitioner’s motion is a collateral attack on his sentence, he would not be entitled to
relief unless such a decision applies retroactively.
Because extending the reasoning of Johnson to the sentencing guidelines
establishes a new rule, the question of retroactivity is governed by the framework set
out in Teague v. Lane, 489 U.S. 288, 309‐13 (1989) (plurality). “[A]s a general matter, ‘new
constitutional rules of criminal procedure will not be applicable to those cases which
have become final before the new rules are announced.’” Welch, 136 S. Ct. at 1264
(quoting Teague, 489 U.S. at 310). There are two exceptions to this general rule: first,
“new substantive rules generally apply retroactively,” id. (quoting Schriro v. Summerlin,
542 U.S. 348, 351 (2004)) (alteration omitted) (emphasis deleted); and second, “new
‘watershed rules of criminal procedure,’ which are procedural rules ‘implicating the
fundamental fairness and accuracy of the criminal proceeding,’ will also have
retroactive effect.” Id. (quoting Saffle v. Parks, 494 U.S. 484, 495 (1990)).
First, the Court must decide whether the application of Johnson’s reasoning to the
guidelines constitutes a new substantive rule or a new procedural rule. “A rule is
substantive rather than procedural if it alters the range of conduct or the class of
persons that the law punishes.” Schriro, 542 U.S. at 353. “This includes decisions that
narrow the scope of a criminal statute by interpreting its terms, as well as constitutional
determinations that place particular conduct or persons covered by the statute beyond
the State’s power to punish.” Id. at 351‐52 (citations omitted). By contrast, procedural
rules “regulate only the manner of determining the defendant’s culpability[.]” Id. at 353
(emphasis deleted). Thus, rules that alter “the range of permissible methods for
determining whether a defendant’s conduct is punishable” by “allocating
decisionmaking authority” are procedural. Id. Procedural rules also do not create a
class of persons convicted of conduct that is not lawfully criminalized, “but merely raise
the possibility that someone convicted with use of the invalidated procedure might
have been acquitted otherwise.” Id. at 352. In the PFRD, the Magistrate Judge
concluded that applying the reasoning of Johnson to the guidelines would be a
procedural rule. See doc. 10 at 8‐12. The Court agrees.
Petitioner argues that the PFRD’s “error is in determining that [the Johnson]
reasoning moves from a substantive rule to a procedural rule based upon the context of
its application.” Doc. 11 at 2. He contends that the “substantive nature of the Johnson
rule, recognized definitively in Welch . . . does not change based on the context of the
claim [because] the same rule [cannot] be substantive and retroactive in one context but
procedural and not retroactive in another.” Id. at 3 (quotations and citations omitted).
Characterizing the rule in Johnson as “the same” as the rule announced in Madrid
is too simplistic. Indeed, both opinions rely on an application of a more basic and
undeniable rule founded on the Fifth Amendment – the “prohibition of vagueness in
criminal statutes.” Johnson, 135 S. Ct. at 2556‐57; see also Madrid, 805 F.3d at 1210‐11.
And both opinions deal with identical language. However, despite its substantive
impact in obviating an automatic fifteen‐year minimum sentence when applied to the
ACCA, the Madrid rule that this language is unconstitutionally vague where found in
the sentencing guidelines affects only the process of calculating a defendant’s offense
level pursuant to those advisory guidelines.
Applying the framework of Teague, the Supreme Court concluded that Johnson’s
invalidation of the ACCA’s residual clause was a new substantive rule because it
“changed the substantive reach of the Armed Career Criminal Act . . . .” See Welch, 136
S. Ct. at 1265. As the Court explained,
Before Johnson, the Act applied to any person who possessed a firearm
after three violent felony convictions, even if one or more of those
convictions fell under only the residual clause. An offender in that
situation faced 15 years to life in prison. After Johnson, the same person
engaging in the same conduct is no longer subject to the Act and faces at
most 10 years in prison. The residual clause is invalid under Johnson, so it
can no longer mandate or authorize any sentence. Johnson establishes, in
other words, that even the use of impeccable factfinding procedures could
not legitimate a sentence based on that clause.
Id. (quotation and citations omitted).
In contrast, the invalidity of a given sentencing guideline provision does not
create such a drastic impact. While the new rule may change a defendant’s sentencing
guideline range, it will not change the maximum or minimum sentence to which he is
subject. Consequently, a sentence imposed, even after considering a guideline
provision later determined to be invalid, will never exceed the statutorily authorized
sentence for the crime for which the defendant was convicted. Thus, such a sentence is
not illegal or unlawful. See Sun Bear v. United States, 644 F.3d 700, 705 (8th Cir. 2011) (en
banc) (360‐month sentence imposed following an erroneous determination that
defendant was a career offender pursuant to the sentencing guidelines was “not
unlawful” because “[a]n unlawful or illegal sentence is one imposed without, or in
excess of, statutory authority.”). As the Magistrate Judge points out, because the
sentencing guidelines are advisory, “unlike in Johnson, where the ACCA increased the
statutory maximum sentence, the sentence imposed using the problematic guideline
provision can indeed be ‘legitimate[d]’ merely by a judge’s determination that the
sentence was still appropriate.” Doc. 10 at 10 (citing Welch, 136 S. Ct. at 1265; United
States v. Booker, 543 U.S. 220, 246 (2005)). The fact that the Court could easily sentence
Petitioner to the same sentence he originally received notwithstanding the invalidation
of the guideline provision is a powerful indicator that the rule, when applied to
advisory sentencing guidelines, is not substantive.
Instead, invalidation of a given sentencing guideline provision impacts but one
step in a multi‐step sentencing procedure. Importantly, while “‘a sentence within the
applicable Guidelines range is presumptively reasonable[,]’ United States v. Terrell, 445
F.3d 1261, 1264 (10th Cir.2006), ‘[t]his presumption, however, is an appellate
presumption, not one that the trial court can or should apply.’” United States v. Nolf, 30
F. Supp. 3d 1200, 1212 (D.N.M. June 20, 2014) (Browning, J.); see also Rita v. United States,
551 U.S. 338, 347–48 (2007); Gall, 552 U.S. at 40‐41; Kimbrough v. United States, 552 U.S.
85, 90–91 (2007). “Instead, the trial court must undertake the § 3553(a) balancing of
factors without any presumption in favor of the advisory Guideline sentence.” Nolf, 30
F. Supp. 3d at 1212 (citing Rita, 551 U.S. at 347–48; Gall, 552 U.S. at 40; Kimbrough, 552
U.S. at 90–91). For its part, the Supreme Court has characterized errors in calculating
the advisory guidelines range as “procedural.” See, e.g., Peugh v. United States, 133 S. Ct.
2072, 2083 (2013) (citing Gall v. United States, 552 U.S. 38, 51 (2007)). For these reasons,
the Court agrees with the Magistrate Judge that the rule established in Madrid is
procedural. See Hawkins II v. United States, 724 F.3d 915, 917‐18 (7th Cir. 2013) (holding
that “errors in applying advisory guidelines are procedural,” and opining that a new
rule that erroneously sentencing a defendant under current Guidelines rather than less
punitive Guidelines in effect at the time of offense is a violation of the Ex Post Facto
Clause would therefore not be applied retroactively under Teague).
Having concluded that the application of Johnson to the guidelines is a
procedural rule, it can only be applied retroactively if it constitutes a “watershed” rule
of criminal procedure. Saffle, 494 U.S. at 495. Petitioner presents no argument that, if
the rule were procedural, it would qualify as watershed. For the reasons presented in
the PFRD, the Court agrees that it does not so qualify. See doc. 10 at 11‐12.
Petitioner’s Motion does not fall within the scope of his waiver of collateral
attack rights found in his plea agreement. Therefore, the Court denies the United
States’ effort to enforce the waiver here.
The Court holds that the application of Johnson to the guidelines would not have
retroactive effect under the Teague analysis because it would be a non‐watershed
procedural rule. Therefore, Petitioner’s motion is DENIED.
JUDITH C. HERRERA
United States District Judge
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