United States v. Pam
2017 U.S. App. LEXIS 15193
| 10th Cir. | 2017Background
- Larry Pam pleaded guilty under a Rule 11(c)(1)(C) plea agreement to being a felon in possession of a firearm; the parties agreed to a 180‑month (15 year) sentence.
- The agreed sentence exceeded the ordinary 10‑year maximum for § 922(g)(1) because the plea and PSR treated Pam as an Armed Career Criminal under the ACCA, which carries a 15‑year mandatory minimum.
- After Johnson v. United States and Welch, Pam sought § 2255 relief arguing the ACCA enhancement was unconstitutional (residual clause void), and obtained permission to file a second/successive § 2255 motion.
- The district court dismissed Pam’s § 2255 motion, ruling Johnson inapplicable to his Rule 11(c)(1)(C) sentence and alternatively that his plea’s collateral‑attack waiver barred relief.
- The Tenth Circuit held Pam may bring a Johnson‑based challenge despite the Rule 11(c)(1)(C) plea because the agreement expressly relied on the ACCA to set the sentence, and the collateral‑attack waiver did not cover sentence challenges (it waived collateral attacks to conviction only).
- On the merits, the court applied the categorical/modified categorical approaches and New Mexico law, concluded N.M. Stat. § 30‑3‑8(B) (shooting at/from a motor vehicle) is divisible, and held Pam’s § 30‑3‑8(B) convictions qualify as ACCA violent‑felony predicates under the elements clause; Pam therefore remains an armed career criminal and his 180‑month sentence is lawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of Johnson to a Rule 11(c)(1)(C) plea that references ACCA | Pam: Johnson applies because the plea used the ACCA to justify the 15‑year term | Gov: Rule 11(c)(1)(C) sentence is based on the plea agreement, not the ACCA, so Johnson inapplicable | Court: Johnson can apply; Pam’s plea expressly relied on the ACCA so the ACCA basis may be challenged |
| Enforceability / scope of collateral‑attack waiver in plea | Pam: Waiver covers convictions only; his § 2255 challenges the sentence, so waiver does not bar relief | Gov: Waiver bars § 2255 challenges generally (except ineffective assistance) | Court: Waiver applies to collateral attacks on convictions, not sentence; it does not bar Pam’s Johnson claim |
| Divisibility of N.M. Stat. § 30‑3‑8(B) (shooting at/from a vehicle) | Pam: § 30‑3‑8(B) is indivisible (single offense) | Gov: § 30‑3‑8(B) sets out alternative offenses/penalties and is divisible | Court: § 30‑3‑8(B) is divisible (distinct offenses tied to degree of resulting injury) |
| Whether § 30‑3‑8(B) convictions are ACCA violent felonies after Johnson | Pam: Recklessness element and focus on vehicle/property mean statute may not have "use of physical force against the person of another" | Gov: Statute requires creating a substantial foreseeable risk to persons—thus involves threatened/attempted/used physical force | Court: § 30‑3‑8(B) (willful discharge with reckless disregard for persons) qualifies under ACCA elements clause; Pam has three predicates and ACCA enhancement stands |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (struck down ACCA residual clause as unconstitutionally vague)
- Welch v. United States, 136 S. Ct. 1257 (2016) (held Johnson applies retroactively on collateral review)
- Freeman v. United States, 564 U.S. 522 (2011) (Sotomayor concurrence on when a Rule 11(c)(1)(C) sentence is "based on" Guidelines range)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (explaining categorical approach and limits on comparing state offenses to federal predicates)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means for divisibility/modified categorical approach)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (reckless assaults can satisfy statutes requiring the "use of physical force")
- United States v. Harris, 844 F.3d 1260 (10th Cir. 2017) (discussing realistic‑probability test in categorical inquiries)
- United States v. Titties, 852 F.3d 1257 (10th Cir. 2017) (applying modified categorical approach and divisibility analysis)
- United States v. Duran, 696 F.3d 1089 (10th Cir. 2012) (prior Tenth Circuit discussion of mens rea in force‑clause contexts)
- United States v. Hernandez, 568 F.3d 827 (10th Cir. 2009) (drive‑by shooting statute held to involve force under ACCA elements clause)
- United States v. Ford, 613 F.3d 1263 (10th Cir. 2010) (distinguishing statutes criminalizing force against property from those against persons)