ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Defendant/Movant David Louis King’s (“Movant”) Emergency Motion to Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) (“Section 2255 Motion”), filed May 26, 2016. On December 1, 2016 and February 17, 2017, United States Magistrate Judge Kirtan Khalsa filed Proposed Find
I. Factual Background and Procedural History
On November 21, 2002, the Government charged Movant by indictment with two counts 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). (CR Doc. I.
Movant pled guilty to Count I of the indictment pursuant to a plea agreement on July 15, 2003. (CR Doc. 31.) However, on August 26, 2003, the Government filed a notice that it intended to seek a minimum sentence of fifteen years’ imprisonment pursuant to the ACCA, rather than a maximum sentence of ten years’ imprisonment pursuant to 18 U.S.C. § 924(a)(2) as stated in the parties’ plea agreement. (CR Doc. 32.) The Government identified three predicate convictions to support the enhanced sentence: a 1986 armed robbery conviction, a 1995 commercial burglary conviction, and a 1995 residential burglary conviction, all under New Mexico law. (Id. at 2; Doc. 9-1 at 10 ¶ 26.) In light of this new information, the Court permitted Movant to withdraw his guilty plea on September 25, 2003. (CR Doc. 35.) On October 8, 2003, the Government filed a superseding indictment to include charges that Movant’s sentence should be enhanced under the ACCA. (CR Doc. 37.)
Movant entered into a new plea agreement, and pled guilty to Count II of the superseding indictment, on February 18, 2004. (CR Docs. 56, 57.) In the new plea agreement, Movant acknowledged that he faced a minimum sentence of fifteen years’ imprisonment under the ACCA. (CR Doc. 56 at 2.) However, on April 21, 2004, Mov-ant filed objections to the Presentence Investigation Report, in which he argued that the Court should not enhance his sentence because his prior conviction for commercial burglary was not for a violent felony under the ACCA. (CR Doc. 61.) Rejecting this argument, the Court sentenced Movant to fifteen years’ imprisonment at a hearing on May 26, 2004. (CR Docs. 64, 83.) The Court entered a judgment of conviction against Movant on the same date,
Movant has been in federal custody since July of 2004. (Doc. 1 at 3.) He filed the Section 2255 Motion presently before the Court on May 26, 2016, less than one year after the United States Supreme Court struck down a portion of the ACCA in Johnson v. United States, — U.S.
In its response in opposition to Movant’s motion, the Government acknowledges that the Court likely relied on the ACCA’s residual clause to find that Movant’s prior armed robbery conviction was for a violent felony, and that this clause is no longer valid. (Doc. 8 at 1-2.) However, the Government argues that the enhancement of Movant’s sentence nevertheless remains proper because New Mexico armed robbery still qualifies as a violent felony under the ACCA’s “elements clause,” which Samuel Johnson left intact. (Id. at 2-3.)
In her December 1, 2016 PFRD, Magistrate Judge Khalsa recommended that the Court grant Movant’s Section 2255 Motion, and the Government filed Objections to Magistrate Judge’s Proposed Findings and Recommended [Disposition] (“Objections”) on December 15, 2016. (Docs. 12, 13.) Then, on January 4, 2017, the Tenth Circuit issued United States v. Harris,
The Court has considered Movant’s Motion, the Magistrate Judge’s PFRD and Supplemental PFRD, and the Government’s Objections, Supplement, and Objections to Supplemental PFRD, and has conducted a de novo review of the record in this case and the underlying criminal case. Based on this review, and for the reasons set forth below, the Court finds that the Government’s Objections, Supplement, and
II. Analysis
District courts may refer dispositive motions to a magistrate judge for a recommended disposition pursuant to 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b)(1). “Within 14 days after being served with a copy of the [magistrate judge’s] recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations.” Fed. R, Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1). When resolving objections to a magistrate judge’s proposal,
[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); 28 U.S.C. § 636(b)(1).
“[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. One Parcel of Real Prop.,
The ACCA provides that a person who violates 18 U.S.C. § 922(g) and has three prior convictions for a “violent felony” or “serious drug offense” is subject to a minimum term of imprisonment of fifteen years. 18 U.S.C. § 924(e)(1). Under the ACCA, the term “violent felony” means
any crime: punishable by imprisonment for a term exceeding one year ... that—
(i) has as an element the use, attempted use, or threatened use of physical forcé against the person of another; or
(ii) 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). Subpart (i) of this definition is 'known as the “elements clause” or “force clause”; the non-italicized portion of subpart (ii) is known as- the “enumerated offenses clause”; and, the italicized portion of sub-part (ii) is known as the “residual clause.” Samuel Johnson,
To determine whether an offense is a violent felony under the ACCA,
[t]o satisfy this categorical approach, it is not necessary that every conceivable factual offense covered by a statute fall within the ACCA. Rather, the proper inquiry is whether the conduct encorm passed by the elements of the offense, in the ordinary case, qualifies under the ACCA as a violent felony.
Smith,
When a statute includes alternative elements that create distinct versions of a crime, courts employ the “modified categorical approach.” Gardner,
Here, Movant’s statute of conviction provides that
[r]obbery 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. Stat. Ann. § 30-16-2.
This statutory -language shows that armed robbery is not a distinct offense from robbery;' the offense is robbery whether or not armed, and whether or not one is an accessory. ‘Armed robbery’ is a way to commit ‘robbery’ and, if done in that way, the penalty is greater but the basic offense remains robbery.
New Mexico v. Roque,
Robbery and armed robbery are not included in the ACCA’s enumerated offenses clause, and, as noted above, the Act’s residual clause is no longer valid. 18 U.S.C. § 924(e)(2)(B)(ii); Samuel Johnson,
However, as the Magistrate Judge noted, the required analysis is “not so straightforward in the sometimes counter-intuitive legal landscape recent federal jurisprudence has created.” (Doc. 12 at 8.) The meaning of the term “physical force” in the ACCA’s elements clause is a question of federal law, and the United States Supreme Court has held that “physical force” means “violent force—that is, force capable of causing physical pain or injury to another person.” Curtis Johnson,
As Magistrate Judge Khalsa discussed in her Supplemental PFRD, the Tenth Circuit addressed a similar question in Harr ris, and its decision must inform the Court’s reasoning. (Doc. 15 at 3-9.) In Harris, the Tenth Circuit held that Colorado robbery categorically has as an element the actual, attempted, or threatened use of physical force against the person of another, and so satisfies the ACCA’s elements clause.
Magistrate Judge Khalsa concluded, and the Court' agrees, that New Mexico law regarding purse-snatchings is similar to Davis, but more extensive and authoritative. (Doc. 15 at 5.) In 1976, the New Mexico Supreme Court held that
[tjhe 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 jury’s discretion.... Assuming that the docketing statement,1 which was filed by the defendant-respondent, presents the facts accurately, and viewing these facts in the light most favorable to the State, we conclude that the evidence supported the verdict of the jury that the snatching of the purse was accompanied by force sufficient to convert the crime from larceny to robbery.
New Mexico v. Clokey,
[t]he complaining' witness was walking toward the [defendant and was carrying a purse under her left arm. The purse was not fastened to her person, nor was it in the grasp of her hand: The [defendant allegedly ran toward the complaining witness and with his left hand pushed the purse through the woman’s arm, grabbed the purse and ran. It is alleged that in so doing the [defendant touched the inside of the woman’s arm, causing the woman to stumble. The woman was in her seventies and tottered unsteadily when she walked. There was no resistance offered by the woman whose purse was taken;. there was no struggle for the purse; and the [djefen-dánt, in the complaining witness’s words, “snatched” the purse in one continuous motion and ran. ,
New Mexico v. Clokey, No. 2479, Docketing Statement at 1-2 (N.M. App. filed Mar. 22,1976).
Similarly, in Curley, the New Mexico Court of Appeals held that the jury could find a purse snatching to constitute robbery if it determined that the defendant “shoved the victim to help himself relieve her of [her] purse.”
As noted by the Magistrate Judge and above, the Tenth Circuit in Harris held that Davis, a Colorado Court of Appeals decision, was not controlling to the extent it was inconsistent with Borghesi, a later Colorado Supreme Court decision. (Doc. 15 at 6);
The Court agrees with Magistrate Judge Khalsa that Harris’ second instructive point is how the court distinguished the matter before it from Gardner,
As the Magistrate Judge pointed out in her Supplemental PFRD, New Mexico law is virtually identical to the North Carolina law the Tenth Circuit distinguished from Colorado law in Hams. (Doc. 15 at 7-8.) As long ago as 1967, the New Mexico Court of Appeals held that, “[wjhere [robbery by] force is charged, the issue is not how much force was used, but whether the force was sufficient to compel the victim to part with his property.” New Mexico v. Sanchez,
[tjhe use or threatened use of force must be the lever by which the thing of value is separated from the victim. The amount or degree of force is not the determinative factor. Evidence of jostling or causing the victim to fall as property is taken is a sufficient showing to establish the use of force.
New Mexico v. Martinez,
when property is attached to the person or clothing of a victim so as to cause resistance, any taking is a robbery, and not larceny, because the lever that causes the victim to part with the property is the force that is applied to break that resistance; however, when 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. In our cases where we have not found sufficient force to be involved, the victim did not resist the property being taken from his person.11
Id. at ¶¶ 6, 7,
Thus, for almost fifty years, the law in New Mexico has been that robbery requires the use of, not a particular quantum of force, but rather sufficient force to overcome some kind of resistance. This force element is consistent with the force element of North Carolina robbery, which Gardner found not to rise to the level of Curtis Johnson force, and which Harris found to depart from the common law force element of Colorado robbery. Thus, the Court agrees with the Magistrate Judge that, although the Harris court found that Colorado robbery satisfies the
In its Objections to the Magistrate Judge’s Supplemental PFRD, the Government argues at some length that New Mexico robbery “is common law robbery,” and “[u]nder the guidance articulated in Harris, New Mexico robbery is therefore a crime of violence for purposes of the ACCA.” (Doc. 17 at 5-8.) In so arguing, the Government ignores the Harris court’s treatment of Gardner.
The Court notes the widely varying decisions reached by other federal appellate courts faced with deciding whether a particular state’s robbery statute necessarily has as an element the actual, attempted, or threatened use of Curtis Johnson physical force, and so is a violent felony under the elements clause. A number of federal appellate courts have concluded that robbery is not a violent felony under the elements clause. See, e.g., Gardner,
Conversely, several other federal appellate courts have held that robbery is a violent felony under the elements clause. See, e.g., Fritts,
To add to the complexity of the issue, some years before Curtis Johnson, the Tenth Circuit held that New Mexico robbery is “clearly [a] violent felon[y] under the [ACCA] ” because it “contains the required element of force.” Lujan,
The Mágistrate Judge also noted three other pre-Harris Tenth Circuit decisions addressing issues similar to those presented here, in which the Ténth Cireúit arrived at a different result. (Doc. 12 at 15-16.) First, in United States v. Aguilar-Ramos, an unpublished opinion, the Tenth Circuit held that California robbery “by force” is a crime of violence under U.S.S.G. § 2L1.2.
The Government has also argued that New Mexico armed robbery is a violent felony under the ACCA’s elements clause even if New Mexico simple robbery is not, because armed robbery has as an element the use of a deadly weapon, and thus-,; the actual, attempted, or threatened use of Curtis Johnson physical force. (Doc. 8 at 2-3.) However, as the Magistrate Judge has explained, this argument fails because it is based on a false premise. (Doc. 12 at 16; Doc. 15 at 11-13.) New Mexico’s armed robbery statute criminalizes robberies committed “while armed with a deadly weapon.” N.M. Stat. Ann. § 30-16-2. Upon careful consideration of the state law discussed below, the Court agrees with Magistrate Judge Khalsa that this element requires the possession, but not necessarily the use, of a deadly weapon; and, the added element of possession of a deadly weapon is not enough to bring New Mexico robbery within the scope of the ACCA’s elements clause. (Doc. 12 at 16-22; Doc. 15 at 11-15.)
The New Mexico Court of Appeals has consistently interpreted the phrase “armed' with a deadly weapon” to mean mere possession of a deadly weapon, and not necessarily its use.
[t]he jury was instructed that an element of the crime was that defendant was “armed” with a firearm. However, there is no separate finding of fact that a firearm was “used”; no special interrogatory was submitted to the jury. [The defendant] assert[ed] that absent such a separate finding, the enhanced sentence for use of a firearm should not have been imposed.
The Court agrees with the Magistrate Judge that New Mexico Court of Appeals’ decisions interpreting the phrase “armed with a deadly weapon” in the context of aggravated burglary reinforce the point. (Doc. 12 at 18); see New Mexico v. Anderson,
As Magistrate Judge Khalsa pointed out in her PFRD, and as New Mexico’s firearm enhancement statute illustrates, the New Mexico legislature is fully capable of employing the term “use” when it wishes to penalize the use of, as opposed to being “armed with,” a deadly weapon. (Doc. 12 at 18-19); compare N.M. Stat. Ann. § 31—18— 16 (providing for sentence enhancement where “firearm was used”) with N.M. Stat. Ann. § 30-16-2 (defining armed robbery as robbery “while armed with a deadly weapon”) and N.M. Stat. Ann. § 30-16-
[b]y employing the term, “uses” instead of “while armed” the Legislature requires something more than merely being armed.... The intentional firing of the gun is use of the firearm. The display of the gun in a menacing manner as a means of accomplishing a robbery or the employment of the gun to strike or “pistol whip” the victim is certainly “use” of the gun in the commonly accepted definition of that term.
Id. at ¶¶ 12-13,
In arguing to the contrary, the Government relies heavily on the New Mexico Court of Appeals’ decision in New Mexico v. Hamilton,
It is in this context that the court stated: 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. at ¶ 12,
In this sense, as Magistrate’Judge Khal-sa described, New Mexico armed robbery is analogous to Massachusetts armed robbery. (Doc. 12 at 20-21); see Parnell,
the elements clause requires the actual, attempted or threatened use of physical force, not a mere uncommunicated willingness or readiness to use such force. Awillingness to use violent force is not the same as a threat to do so. The latter requires some outward expression or indication of an intention to inflict pain, harm or punishment. The former does not.
Id. at 980 (emphasis in original) (citations omitted). Considering this reasoning in the context of armed robbery, the court stated that
[t]he possession of a dangerous weapon may indicate a robber’s willingness to use that weapon if necessary to accomplish the criminal undertaking. The mere fact an individual is armed, however, does not mean he or she has used the weapon, or threatened to use it, in any way.... There is a material difference between the presence of a weapon, which produces a risk of violent force, and the actual or threatened use of such force. Only the latter falls within [the] ACCA’s elements clause.
Id. (emphasis in original) (citations omitted).
In contrast, federal appellate decisions holding that armed robbery (as distinct from simple robbery) is a violent felony under the ACCA’s elements clause have involved state statutes requiring the actual or threatened use of a dangerous or deadly weapon during the robbery. See, e.g., Redrick,
element of “use” of a dangerous or deadly weapon supplies at minimum a “threat” of‘physical force against the person of another. And because the means employed is a “dangerous or deadly weapon,” the required degree of force—that is, “violent force”—is present.
In its Objections, the Government relies on United States v. Ramon Silva,
threatening or engaging in menacing conduct toward a victim, with a weapon capable of causing death or great bodily harm, threatens the use of “force capable of causing physical pain or injury” in two different ways. The conduct could always lead to substantial and violent contact, and thus it would always include as an element the threatened use of violent force. And the conduct could at least put the victim on notice of the possibility that the weapon will be used more harshly in the future, thereby constituting a threatened use of force.
Ramon Silva,
However, the Court agrees with the Magistrate Judge that, notwithstanding the Government’s arguments to the contrary, this reasoning cannot properly be extended to New Mexico armed robbery. (Doc. 15 at 14-15.) As discussed above, while New Mexico robbery does require the use of force, this can be nothing more than the force required to push a purse out from under the victim’s arm, or pull it from the victim’s grasp. Clolcey,
The Court finds significant the Magistrate Judge’s observation that possessing a deadly weapon during a robbery certainly involves the risk that deadly force will be used, but merely possessing a deadly weapon without displaying it does not necessarily convey a threat to that effect. (Doc. 15 at 15.) Like the Magistrate Judge, the Court notes in this regard that Ramon Silva was decided before the Supreme Court struck down the ACCA’s residual clause in Samuel Johnson, and as such the Ramon Silva court had no pressing need to distinguish between the “serious potential risk of physical injury” as provided by the residual clause, and the “threatened use of physical force” as provided by the elements clause. (Id.); 18 U.S.C. § 924(e)(2)(B) (emphases added). However, to the extent Ramon Silva suggests that the risk that violent force will be used is equivalent to a threat that such force will be used, it conflates the now-invalid residual clause with the still-valid elements clause contrary to Samuel Johnson,
Finally, the Court acknowledges that several recent decisions and recommended dispositions in other cases in this District have arrived at a different result from the one the Court reaches here. See Contreras v. United States, Civ. No. 16-671 RB/SMV, Order Adopting Mag. J.’s Proposed Findings & Recommended Disposition (Doc. 14, D.N.M. filed Feb. 24, 2017) (New Mexico robbery is crime of violence under U.S.S.G. § 4B1.2’s elements clause) (Brack, J.); Garcia v. United States, Civ. No. 16-240 JB/LAM, Mem. Op. & Order Overruling Mag. J.’s Amended Proposed Findings & Recommended Disposition (Doc. 37, D.N.M. filed Jan. 31, 2017) (New Mexico robbery is violent felony under ACCA’s elements clause) (Browning, J.); Rhoads v. United States, Civ. No. 16-325 JCH/GBW, Proposed Findings & Recommended Disposition (Doc. 17, filed Jan. 25, 2017) (New Mexico armed robbery is crime of violence under U.S.S.G. § 4B1.2’s elements clause) (Wormuth, Mag. J.);
III. CONCLUSION
For all of the foregoing reasons, and for the additional reasons stated in the Magistrate Judge’s PFRD and Supplemental PFRD, the Court finds that, after Samuel Johnson, New Mexico armed robbery no longer qualifies as a violent felony under the ACCA, and thus, the Court can no longer rely on Movant’s prior conviction of this offense to enhance his sentence.
IT IS THEREFORE ORDERED that:
1. The Government’s Objections to Magistrate Judge’s Proposed Findings and Recommended [Disposition], Supplement to United States’ Objections to Magistrate Judge’s Proposed Findings and Recommended [Disposition], and Objections to Magistrate Judge’s Supplemental Proposed Findings and Recommended [Disposition] (Docs. 13, 14, 17) are OVERRULED;
2. The Magistrate Judge’s Proposed Findings and Recommended Disposition and Supplemental Proposed Findings and Recommended Disposition (Docs. 12, 15) are ADOPTED as an order of the Court;
3. Movant’s Emergency Motion to Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is GRANTED;
4. Movant’s sentence in Cr. No. 02-2092 MV is VACATED;
5. The Court will order an expedited new Presentence Report in Cr. No. 02-2092 MV; and,
6. The Court will set a hearing to resen-tence Movant in Cr. No. 02-2092 MV by separate order.
IT IS SO ORDERED.
Notes
. References to "CR Doc." are to the docket in Cr. No. 02-2092 MV (D.N.M.).
. The Court entered an amended judgment of conviction against Movant on June 22, 2004 to correct a clerical error. (CR Doc. 72.)
. The Court will refer to Johnson v. United States, — U.S. -,
. In Welch v. United States, the Supreme Court held that Samuel Johnson announced a new substantive rule that applies retroactively on collateral review. — U.S. -,
. Although armed robbery is an aggravated form of robbery, robbery and armed robbery are two distinct offenses for purposes of determining whether they are violent felonies under the ACCA, because they entail different penalties. Mathis,
. "[T]he words 'or violence’ ” in Section 30-16-2 "refer to the unwarranted exercise of force and do not substantively state an alternative means of committing the offense.” New Mexico v. Curley,
.The Court notes that in United States v. Castleman, the Supreme Court left unresolved whether acts such as "[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling” rise to the level of "violent fprce, under [Curtis ] Johnson's definition of that phrase.” - U.S. -,
. As the Magistrate Judge observed, New Mexico robbery can also be committed by “intimidation,” that is, by the "threatened use of force.” (Doc. 12 at 9 n.5 (quoting Bernal,
. The Bernal court did cite to United States v. Lujan,
. Harris also distinguished United States v. Parnell,
. The Curley court described as “dictum” language in Sanchez and Martinez to the effect that “even a slight amount of force ... is sufficient” to satisfy the force element of New Mexico robbery.
. The Tenth Circuit has "consistently applied the same analysis” to the ACCA and U.S.S.G. § 4B1.2 where, as here, “the clauses are virtually identical.” United States v. Mitchell,
. Unpublished decisions are not binding precedent in the Tenth Circuit,, but may be cited for their persuasive value. United States v. Austin,
. In armed robbery prosecutions involving an object that is not a statutorily enumerated deadly weapon, but rather is a deadly, weapon only because of its "character and manner of use,” New Mexico courts do require proof that the object was used as a "weapon with which dangerous wounds can be inflicted.” New Mexico v. Fernandez,
. Section 31-18-16 provides that when a factfinder determines "that a firearm was used in the commission of a noncapital felony,” the defendant’s sentence "shall be increased by ope year” for a first offense, and three years for second and subsequent offenses. N.M. Stat. Ami. § 31—18—16(A), (B). When Duran was decided, this enhancement was codified at N.M. Stat. Ann. § 40A-29-3.1. See Duran,
. That this determination was not the only reason for the Duran court's ruling, or even the predominant one, does not make it obiter dictum, as the Government claims.
. The Court agrees with the Magistrate Judge that the Government’s reliance on the Committee Commentary to the New Mexico Uniform Jury Instruction on armed robbery is similarly flawed. (Doc. 15 at 12 n.8; see Doc. 13 at 6 & n.4.) Although the commentary does state that "[a]rmed robbery is an aggravated form of robbery by use of a deadly weapon,” it immediately adds that ‘‘[s]ome courts indi
. This is analogous to the issue presented in United States v. Shuler, in which the Tenth Circuit considered whether the carrying of firearms stolen during a robbery “was 'in relation to’, the robbery within the meaning of [18 U.S.C.] § 924(c)(1);” which criminalizes, inter alia, the “carrlying]” óf a firearm "‘during and in relation to”‘ a crime of violence.