United States v. Baez-Martinez, CRIMINAL NO. 12-281 (JAG).

• Court: United States District Courts. 1st Circuit. District of Puerto Rico
• Writing for the Court: GARCIA–GREGORY, United States District Judge
• Citation: 258 F.Supp.3d 228
• Parties: UNITED STATES of America, Plaintiff, v. Jorge BAEZ–MARTINEZ, Defendant.
• Docket Number: CRIMINAL NO. 12-281 (JAG).
• Decision Date: 29 June 2017

258 F.Supp.3d 228

UNITED STATES of America, Plaintiff,
v.
Jorge BAEZ–MARTINEZ, Defendant.

CRIMINAL NO. 12-281 (JAG).

United States District Court, D. Puerto Rico.

Signed June 29, 2017

258 F.Supp.3d 229

Joannie Plaza–Martinez, Federal Public Defender's Office, Patio Gallery Building, 241 Franklin D. Roosevelt Ave., Hato Rey, PR 00918–2441, Franco Lorenzo Perez–Redondo, Federal Public Defender's Office, Patio Gallery Building, 241 Franklin D. Roosevelt Ave., Hato Rey, PR 00918–2441, for Plaintiff.

Max J. Perez–Bouret, United States Attorney's Office, District of Puerto Rico, Torre Chardon, Suite 1201, 350 Chardon Ave., San Juan, PR 00918, Susan Zetta Jorgensen, United States Attorney's Office, District of Puerto Rico, Torre Chardon, Suite 1201, 350 Chardon Ave., San Juan, PR 00918, for Defendant.

OPINION AND ORDER

GARCIA–GREGORY, United States District Judge

This case asks a seemingly easy question: are murder and attempted murder

258 F.Supp.3d 230

violent felonies that require the "use, attempted use, or threatened use of physical force." However, the legal analysis of this question turns out to be more complicated and convoluted than common sense would dictate. Nonetheless, this tortuous analysis leads to the same conclusion that general principles of logic and common sense would reach: murder and attempted murder are violent felonies. Thus, Defendant must be re-sentenced to at the very least a fifteen-year mandatory minimum.

BACKGROUND

Defendant Jorge Baez–Martinez ("Defendant") was convicted of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Docket No. 58. The pre-sentence report investigation stated that Defendant was subject to the enhanced penalty of the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e)(1), based on his criminal history. Docket No. 78. Accordingly, Defendant was sentenced to the fifteen-year mandatory minimum. Docket No. 80.

Defendant appealed his conviction without raising any issues as to his sentencing, and the First Circuit affirmed his conviction on May 13, 2015. Docket No. 92. However, shortly thereafter, the Supreme Court declared the residual clause of the ACCA unconstitutionally vague. See Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson II "). Thus, Defendant petitioned for a Writ of Certiorari, and the Supreme Court vacated the First Circuit's judgment and remanded the case to the First Circuit for further consideration in light of Johnson II . Docket No. 94. The First Circuit, in turn, remanded the case to this Court for re-sentencing. Id.

Defendant has a lengthy criminal history, which includes convictions for second degree murder, attempted murder, robbery, and kidnapping, all under Puerto Rico law. Docket No. 68. Defendant filed a memorandum in support of his objections to the pre-sentence report, arguing that he should be re-sentenced without the ACCA enhancement, because these crimes do not constitute ACCA predicate offenses under the statute's force clause. Docket No. 104–1.¹ The Government responded, arguing that these crimes are ACCA predicates. Docket No. 123. Defendant replied. Docket No. 128.

ANALYSIS

The issue here is whether Defendant is subject to a fifteen-year mandatory minimum sentence under the ACCA. This question turns on whether Defendant has been convicted of three "violent felonies" under the ACCA's force clause. The Court holds that he has.

The Court begins by providing the relevant framework to determine if a crime constitutes a "violent felony" under the ACCA's force clause. In applying this framework, the Court then concludes that, under Puerto Rico law, second degree murder and attempted murder do constitute "violent felonies." Since Defendant has two convictions for attempted murder and one for second degree murder, Docket No. 68, the Court finds that he has three convictions for ACCA predicate offenses.

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Accordingly, Defendant must be re-sentenced to the mandatory minimum and the Court need not consider if Defendant's other convictions constitute ACCA predicates.

I. The ACCA Violent Felony Framework

The ACCA provides a fifteen-year mandatory minimum sentence for criminal defendants who have three previous convictions "for a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). The ACCA defines a "violent felony" as any crime punishable by imprisonment of over one year, that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another"—the force clause—(2) is "burglary, arson, or extortion, involves use of explosives"—the enumerated offenses clause—or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another"—the residual clause. Id. at § 924(e)(2)(B). The residual clause was declared unconstitutionally vague by the Supreme Court in Johnson II , 135 S.Ct. at 2563, and this case does not involve any enumerated offense. Thus, this case only deals with the force clause.

To determine whether a prior crime is an ACCA predicate offense, courts use the "categorical approach," in which courts "look[ ] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). In applying the force clause, the Supreme Court has defined physical force as "violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ( " Johnson I ").² Thus, if all the conduct covered by a statute categorically requires violent force capable of causing physical injury, then that statute is an ACCA predicate offense. See United States v. Faust , 853 F.3d 39, 51 (1st Cir. 2017). In determining the minimum conduct covered by a statute, courts should not rely solely on "their ‘legal imagination.’ " Whyte v. Lynch , 807 F.3d 463, 467 (1st Cir. 2015), reh'g denied , 815 F.3d 92 (1st Cir. 2016) (quoting Gonzales v. Duenas–Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ). "There must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute’ in the manner posited by the reviewing court.' " Id. (quoting Gonzales, 549 U.S. at 193, 127 S.Ct. 815 ).

If a statute does not qualify as a violent felony under the categorical approach, then a court must determine if it is divisible. Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). However, since the Court concludes that the relevant crimes here are categorically ACCA predicate offenses, the Court need not engage in this analysis.

II. Puerto Rico Second Degree Murder

Defendant has a prior conviction for second degree murder under Puerto Rico law.

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Docket No. 68. He argues that this conviction does not constitute a "violent felony" under the ACCA's force clause because second degree murder: (1) can be committed in "non-violent" ways, such as by poison, guile, deception, or omission, id. at 7–9; (2) can be committed with a reckless mens rea , id. at 5–7; and (3) can rest on a theory of accomplice liability, id. at 7–8. The Court disagrees.

The Court begins by outlining why recent caselaw, particularly the case of United States v. Castleman , ––– U.S. ––––, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014), dictates that second degree murder categorically requires the "use of physical force." Then the Court explains why none of Defendant's arguments warrant a contrary conclusion.

A. The "Use of Physical Force"

The Puerto Rico second degree murder statute categorically requires the "use of physical force" under the ACCA. At the time Defendant was convicted, the Puerto Rico Penal Code defined murder as "the killing of a human being with malice aforethought."³ P.R. Laws Ann. tit. 33, § 4001 (repealed June 18, 2004); see Pueblo v. Rivera Alicea , 125 D.P.R. 37, 44, 1989 WL 608548, slip official translation at 4 (P.R. Dec. 19, 1989)⁴ . The Penal Code then specifically enumerated what constituted first degree murder before stating "[a]ll other murders shall be deemed as second degree murders." P.R. Laws Ann. tit. 33, § 4002 (repealed June 18, 2004).⁵ As such, second degree murder is any unlawful killing with malice aforethought that is not first degree murder.

The conduct element of second degree murder—the unlawful killing of a human being—necessarily requires physical force. In the ACCA context, " ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person." Johnson I , 559 U.S. at 140, 130 S.Ct. 1265. To kill someone means "[t]o end life; to cause physical death." Black's Law Dictionary 1002 (10th ed. 2014). It can hardly be denied that an unnatural death is a type of physical injury—in fact it is the ultimate physical injury. Cf. Umana v. United States , No. 08 CR 134, 229...