United States v. Hammons, CIV 16–0499 JB/KRS

Citation286 F.Supp.3d 1270
Decision Date31 December 2017
Docket NumberNo. CIV 16–0499 JB/KRS,No. CR 07–1164 JB,CIV 16–0499 JB/KRS,CR 07–1164 JB
Parties UNITED STATES of America, Plaintiff/Respondent, v. Robert Lester HAMMONS, Defendant/Movant.
CourtUnited States District Courts. 10th Circuit. District of New Mexico

286 F.Supp.3d 1270

UNITED STATES of America, Plaintiff/Respondent,
v.
Robert Lester HAMMONS, Defendant/Movant.

No. CIV 16–0499 JB/KRS
No.
CR 07–1164 JB

United States District Court, D. New Mexico.

Signed December 31, 2017


286 F.Supp.3d 1272

James A Tierney, Acting United States Attorney, David M. Walsh, Assistant United States Attorney, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Plaintiff/Respondent

Charles N. Fisher, The Law Office of Charles Fisher, Albuquerque, New Mexico, Attorneys for the Defendant/Movant

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendant–Movant Robert L. Hammons' Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255, filed June 24, 2016 (CIV Doc. 6)(CR Doc. 114)("Motion"); (ii) the United States Magistrate Judge's Proposed Findings and Recommended Disposition, filed April 25, 2016 (CIV Doc. 28)(CR Doc. 136)("PFRD"); (iii) Defendant–Movant's Objection to United States Magistrate Judge's Proposed Findings & Recommendations, filed May 10, 2017 (CIV Doc. 31)(CR Doc. 137)("PFRD Objections"); and (iv) the Amended Proposed Findings and Recommended Disposition, filed June 26, 2017 (CIV Doc. 33)(CR Doc. 139)("Amended PFRD").1 The primary issues

286 F.Supp.3d 1273

are: (i) whether, in light of the Supreme Court of the United States' decisions in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (" Johnson I") and Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson II"), New Mexico aggravated assault against a household member with a deadly weapon, defined by N.M. Stat. Ann. § 30–3–13, is an Armed Career Criminal Act, 18 U.S.C. § 924, ("ACCA"), violent felony; and (ii) whether Oregon first-degree robbery, defined by Or. Rev. Stat. Ann. § 164.415, is an ACCA violent felony. The Court stands by its earlier, post- Johnson I determination that New Mexico aggravated assault against a household member with a deadly weapon has "as an element the use, attempted use, or threatened use of physical force against the person of another," 18 U.S.C. § 924(e)(2)(B)(i) ("Elements Clause"), and, thus, qualifies as an ACCA violent felony. See Memorandum Opinion and Order at 35, 2010 WL 4321693, at *19, filed October 6, 2010 (CR Doc. 73) (" Sentencing MOO")(quoting 18 U.S.C. § 924(e) ). The Court also determines that Oregon first-degree robbery likewise qualifies as an ACCA violent felony under the Elements Clause. Consequently, Hammons' conviction for New Mexico aggravated assault against a family member and his two convictions for Oregon first-degree robbery mean that he remains eligible for an enhanced sentence under the ACCA, notwithstanding Johnson I and Johnson II , so the Court will deny the Motion.

FACTUAL BACKGROUND

On June 13, 2007, a grand jury returned an indictment charging Hammons with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See Indictment at 1, filed June 13, 2007 (CR Doc. 1). Plaintiff United States of America and Hammons entered into a plea agreement. See Plea Agreement at 1, filed October 30, 2008 (CR Doc. 33). The United States then notified Hammons and the Court that it would seek an enhanced sentence under the ACCA. See 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 ¶ 4, at 2, filed April 21, 2009 (CR Doc. 38)("ACCA Notice"). The United States asserted that the "Defendant has the requisite number of prior violent felony convictions for the purposes of 18 U.S.C. § 924(e)." ACCA Notice ¶ 3, at 1. The United States identified five such convictions: (i) a New Mexico conviction for false imprisonment; (ii) a New Mexico conviction for aggravated assault against a household member with a deadly weapon; (iii) two Oregon convictions for first-degree robbery; and (iv) an Oregon conviction for second-degree kidnapping. See ACCA Notice ¶ 3, at 1–2. See also State v. Hammons, Nos. CR 2000–5122, CR 2001–00059, Judgment, Sentence, and Order Suspending Sentence (Second Judicial District Court, County of Bernalillo, State of New Mexico, dated November 5, 2001), filed April 21, 2009 (CR Doc. 38–1)(false imprisonment and aggravated assault against a household member with a deadly weapon);

286 F.Supp.3d 1274

State v. Hammons, No. 7010, Judgment and Sentence (Circuit Court of the State of Oregon for Umatilla County, dated December 11, 1981), filed April 21, 2009 (CR Doc. 38–3)(first-degree robbery and second-degree kidnapping); State v. Hammons, No. 52166, Order (Circuit Court of the State of Oregon for Linn County, dated October 30, 1978), filed April 21, 2009 (CR Doc. 38–2)(first-degree robbery).

Hammons objected to an ACCA enhancement. See Defendant's Objection to Imposition of Enhanced Sentence Pursuant to the Armed Career Criminal Provisions of 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4, filed August 28, 2009 (CR Doc. 47)("Sentencing Objections"). Hammons argued that neither of his New Mexico convictions were convictions for violent felonies under the ACCA. See Sentencing Objections ¶ 1, at 1 (false imprisonment); id. ¶ 10, at 8 (aggravated assault against a family member with a deadly weapon).

The Court overruled Hammons' Sentencing Objections. See Sentencing MOO at 47, 2010 WL 4321693, at *26. The Court determined that New Mexico aggravated assault against a family member with a deadly weapon is a violent crime, because it "has as an element 'the use, attempted use, or threatened use of physical force against another person.' " Sentencing MOO at 35, 37, 2010 WL 4321693, at *19–21 (quoting 18 U.S.C. § 924(e) ). The Court based that determination on the "plain language of the statute." Sentencing MOO at 35, 2010 WL 4321693, at *20. See N.M. Stat. Ann. § 30–3–13 ("Aggravated assault against a household member consists of ... unlawfully assaulting or striking at a household member with a deadly weapon...."). The Court also determined that New Mexico false imprisonment qualifies as an ACCA violent felony under 18 U.S.C. § 924(e)(2)(B)(ii) ("Residual Clause"), see Sentencing MOO at 44, 2010 WL 4321693, at *25–26, which states that—in addition certain enumerated offenses—crimes that "otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another" are ACCA violent felonies, 18 U.S.C. § 924(e)(2)(B)(ii). In light of those two determinations and Hammons' failure to object to the use of his Oregon convictions in the ACCA Notice, the Court concluded that Hammons had at least three violent felony convictions. See Sentencing MOO at 31, 44, 2010 WL 4321693, at *18, *25–26. The Court accordingly imposed a sentence of 180 months imprisonment. See Judgment at 2, filed February 16, 2012 (CR Doc. 109).

PROCEDURAL BACKGROUND

Hammons filed a pro se habeas corpus petition on May 27, 2016. See Hammons v. Tracy, filed May 27, 2016 (CIV Doc. 1)("Habeas Petition"). The Honorable Lourdes A. Martinez, United States Magistrate Judge, determined that Hammons "may only challenge his conviction and sentence ... by a motion under 28 U.S.C. § 2255 and may not seek relief under Section 2241." Order at 1, filed June 8, 2016 (CIV Doc. 5)(CR Doc. 113)("Recharacterization Order"). Judge Martinez announced her intention to recharacterize the Habeas Petition as a "motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255" and granted Hammons leave to "withdraw the [Habeas Petition] or to amend it to add additional claims he may have." Recharacterization Order at 2.

1. The Motion.

Hammons filed a § 2255 motion with the assistance of appointed counsel. See Motion at 25 (listing Charles Fisher as Hammons' attorney). See also CJA Appointment of Charles N. Fisher by District Judge James O. Browning, filed May 11, 2016 (CR Doc. 112). Hammons argues that his Motion is timely, because it was filed

286 F.Supp.3d 1275

within one year of the Supreme Court's decision in Welch v. United States, ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), which determined that Johnson II is a substantive decision that applies retroactively in cases on collateral review. See Motion at 2–4. See also 28 U.S.C. § 2255(f) (stating that a petitioner can file a § 2255 motion within one year of "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable").

On the Motion's merits, Hammons argues that, after Johnson II 's invalidation of the Residual Clause, New Mexico false imprisonment is no longer an ACCA violent felony. See Motion at 13. Hammons also argues that New Mexico aggravated assault against a household member with a deadly weapon is not an ACCA violent felony. See Motion at 16. According to Hammons, the " 'threatened use of physical force against the person of another' in the elements or force clause should also be confined to an intentional threat to inflict 'violent force—that is, force capable of causing physical pain or injury to another person.' " Motion at...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT