United States v. Garcia, No. CIV 16-0240 JB/LAM

CourtU.S. District Court — District of New Mexico
PartiesUNITED STATES OF AMERICA, Plaintiff/Respondent, v. PHILLIP ANGEL GARCIA, Defendant/Movant.
Decision Date01 February 2017
Docket NumberNo. CR 07-0788 JB,No. CIV 16-0240 JB/LAM

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
PHILLIP ANGEL GARCIA, Defendant/Movant.

No. CIV 16-0240 JB/LAM
No.
CR 07-0788 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

February 1, 2017


MEMORANDUM OPINION AND ORDER OVERRULING THE MAGISTRATE JUDGE'S AMENDED PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER comes before the Court on the Magistrate Judge's Amended Proposed Findings and Recommended Disposition, filed November 1, 2016 (Doc. 30)("PFRD"), entered pursuant to the Court's Memorandum Opinion and Order, filed September 28, 2016 (Doc. 23)("MOO"). On November 14, 2016, Defendant/Movant Phillip Angel Garcia filed Mr. Garcia's Objections to Certain Magistrate Judge's Proposed Findings, filed November 14, 2016 (Doc. 31)("Objections"). Plaintiff United States of America did not file objections to the PFRD. The United States' deadline for filing a response to Garcia's Objections was December 1, 2016, and the United States similarly did not file a response to Garcia's Objections. The Court has conducted a de novo review of those portions of the PFRD, authored by the Honorable Judge Lourdes Martínez, United States Magistrate Judge for the District of New Mexico, to which Garcia objects, and concludes that, although his Objections lack a sound foundation in the facts and in the applicable law, the PFRD similarly reaches a conclusion that the Court adopts only in part. The Court notes that, by his Objections, Garcia did not object to Judge Martínez' disposition -- instead, Garcia objected only to Judge Martínez' analysis. Regardless, because Garcia's Objections found the Court's de novo review of Garcia's specific Objections to the

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PFRD, the Court is also forced, by Garcia's Objections, to analyze each issue at play in this case and disagrees in part with Judge Martínez' and Garcia's analyses and conclusions. The primary issues are: (i) whether robbery in New Mexico, N.M. Stat. Ann. § 30-16-2, is a "violent felony" for the purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA"); and (ii) whether a court, on a petition under 28 U.S.C. § 2255 to review a sentencing court's ACCA application, is restricted to consideration of a defendant's prior convictions that were explicitly listed as predicate felonies in a Presentence Report, filed June 24, 2016 (Doc. 11)("PSR"), or if, instead, a court can consider whether defendant's additional felonies listed elsewhere in that report are ACCA predicate felonies. The Court concludes that, in New Mexico, robbery is a "violent felony" and that the Court can consider Garcia's robbery conviction, the existence of which all parties knew at the initial sentencing, even though the United States Probation Office ("USPO") did not explicitly list as one of Garcia's ACCA predicate felonies in the PSR. Accordingly, the Court will: (i) overrule the Objections as lacking a sound foundation in the facts and in the applicable law; (ii) adopt in part and deny in part the PFRD; (iii) deny Mr. Garcia's Motion for Expedited Decision and Resentencing, filed May 27, 2016 (Doc. 8)("Motion for Expedited Decision"); and (iv) deny Mr. Garcia's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255, filed March 30, 2016 (Doc. 1)("Motion").

FACTUAL BACKGROUND

On April 24, 2007, Garcia was indicted on the charge of possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See Redacted Indictment, filed April 24, 2007 (Cr. Doc. 12)("Redacted Indictment"). On December 13, 2007, Garcia entered into a Plea Agreement, filed December 13, 2007 (Cr. Doc. 41)("Plea Agreement"), in which he pled guilty to the "one-count indictment

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charging a violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2), that being Felon in Possession of a Firearm and Ammunition," as alleged in the Redacted Indictment. See Plea Agreement at 1-2. By the Plea Agreement, "The United States has made, and will make, NO AGREEMENT pursuant to Rule 11(c)(1)(C), Fed. R. Crim. P., that a specific sentence is the appropriate disposition of this case." Plea Agreement at 3. Garcia admitted that

Prior to February 22, 2007, I had previously been convicted of the following felony convictions: Robbery in the Second Judicial District Court for the State of New Mexico in case number CRCR 96-03943, Unlawful Taking of a Vehicle in the Second Judicial District Court for the State of New Mexico in case number CRCR 96-3943, Arson in the Second Judicial District Court for the State of New Mexico in case number CRCR 96-03943, Residential Burglary in the Second Judicial District Court for the State of New Mexico in case number CRCR 97-03978, Possession of a Deadly Weapon by a Prisoner in the Second Judicial District Court for the State of New Mexico in case number CR 99-00548, Receiving and Transferring a Stolen Vehicle in the Second Judicial District Court for the State of New Mexico in case number CR 99-03043, and Possession of a Controlled Substance in the Second Judicial District Court for the State of New Mexico in case number CR 05-03651.

Plea Agreement at 5.

PROCEDURAL BACKGROUND

On December 10, 2007, the USPO disclosed a PSR, concluding that Garcia is subject to the ACCA, which mandates a minimum fifteen-year term of imprisonment. See PSR at 4. For the conclusion, the USPO relied on Garcia's prior convictions for arson, residential burglary, and possession of a deadly weapon by a prisoner, providing:

The following prior convictions that were used to trigger this enhancement are as follows: Count 10, Arson (Over $1,000) (Felony), as charged in the Second Judicial District Court, in Albuquerque, New Mexico, case number CR 96-3943; Residential Burglary, as charged in the Second Judicial District Court, in Albuquerque, New Mexico, case number CR 97-3978; and Count 1, Possession of a Deadly Weapon By a Prisoner, as charged in the Second Judicial District Court, in Albuquerque, New Mexico, case number CR 99-548.

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PSR at 10. The PSR nonetheless recounts Garcia's criminal history, listing his prior conviction for New Mexico robbery, amongst all others. See PSR at 13-14. Indeed, on December 12, 2007, the United States filed its Notice of Intention to Seek Enhanced Sentence Pursuant to the Armed Career Criminal Provisions of 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, filed December 12, 2007 (Cr. Doc. 40)("Notice"), in which the United States "inform[ed] the defense and the Court that it will be relying upon [Garcia's] violent felony convictions [for robbery, arson, possession of a deadly weapon by a prisoner, and burglary] to animate the enhanced penalty provision[s] of 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4." Notice at 2. Accordingly, on December 13, 2007, Garcia entered into the Plea Agreement in which he pled guilty to the "one-count indictment charging a violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2), that being Felon in Possession of a Firearm and Ammunition," as alleged in the Redacted Indictment. See Plea Agreement at 1-2.

On October 1, 2008, the Honorable Senior Judge John Conway, United States District Judge for the District of New Mexico, sentenced Garcia to 188 months of imprisonment, and recommended that Garcia's sentence run concurrently with his state cases that were then pending in New Mexico State Court. See Judgment at 1-2, filed October 1, 2008 (Cr. Doc. 61)("Judgment"). Judge Conway also concluded that "the defendant, a six-time convicted felon, was in possession of a firearm." Transcript of Hearing at 6:5-6, taken October 1, 2008 ("Tr.")(Conway). In addition, Judge Conway sentenced Garcia to a term of supervised release for three years. See Judgment at 3.

On March 30, 2016, Garcia filed the Motion in which he contends that his sentence is unconstitutional pursuant to the Supreme Court of the United States' recent decision in Johnson v. United States, 135 S. Ct. 1551 (2015)("Johnson II"). See Motion at 2. Garcia contends that

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his conviction for possession of a deadly weapon by a prisoner was a conviction for a violent felony under the ACCA solely because it fit within the residual clause, which the Supreme Court found to be unconstitutionally vague in Johnson II. See Motion at 1, 13-14. In addition, Garcia contends that his conviction for New Mexico robbery does not maintain justification for his ACCA enhancement, because New Mexico's third-degree robbery statute does not require force sufficient to meet ACCA's "physical force" or "violent force" clause. See Motion at 17 (relying on Johnson v. United States, 559 U.S. 133, 140 (2010)("Johnson I")(describing the physical force clause, and holding that the crime in question must entail "violent" force). Garcia contends that, because the ACCA enhancement requires three previous convictions for a violent felony or for a serious drug offense, and because Garcia "only has at most two, not three, previous convictions for 'violent felonies' that the district court relied on," he is thus not subject to the ACCA enhancement. Motion at 14. Based on these arguments, Garcia asks the Court to vacate his sentence and resentence him to no more than the ten-year maximum sentence to which he would be subject absent the ACCA enhancement. See Motion at 2, 14.

In its response to Garcia's § 2255 Motion, the United States concedes that Garcia's conviction for possession of a deadly weapon by a prisoner no longer supports his ACCA eligibility after Johnson II. See United States' Response to Mr. Garcia's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 at 2, filed May 16, 2016 (Doc. 6)("Response"). Nevertheless, the United States notes that it initially, in 2008, contended that Garcia had four predicate violent felonies under the ACCA -- burglary, robbery, arson, and possession of a deadly weapon by a prisoner -- and that, even absent the possession of a deadly weapon by a prisoner conviction, Garcia still has three qualifying predicate convictions. See...

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