United States v. Hurtado

• Decision Date: 11 January 2017
• Docket Number: No. CV 16-646-JAP-GJF,No. CR 07-45 JAP,CV 16-646-JAP-GJF,CR 07-45 JAP
• Parties: UNITED STATES OF AMERICA, Plaintiff-Respondent, v. BENNY HURTADO, Defendant-Petitioner.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff-Respondent, v. BENNY HURTADO, Defendant-Petitioner.

No. CV 16-646-JAP-GJF

No. CR 07-45 JAP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

January 11, 2017

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION ("PFRD")

This matter is before me on Petitioner's Motion to Correct the Sentence Pursuant to 28 U.S.C. § 2255. Doc. 1¹. Having reviewed all of the primary (Docs. 1, 4, 6) and supplemental briefing (Docs. 8, 15), and otherwise being fully advised, I recommend the Motion be denied.²

I. BACKGROUND

On December 19, 2006, Petitioner was charged by criminal complaint with robbing the Bank of America branch at 3101 Carlisle Boulevard NE, in Albuquerque, in violation of 18 U.S.C. § 2113(a). Cr. Doc. 1. On January 9, 2007, a federal grand jury returned a one-count indictment charging him with the same offense. Cr. Doc. 10. On March 22, 2007, Petitioner pleaded guilty to the indictment pursuant to a written plea agreement. Cr. Docs. 20, 22.

In the plea agreement, Petitioner acknowledged that the maximum sentence for his offense included "imprisonment for a period of not more than 20 (twenty) years" and that the U.S. Sentencing Guidelines (hereafter U.S.S.G.) were advisory only. Cr. Doc. 22 at 2. Theparties stipulated that Petitioner was entitled to a guideline reduction for acceptance of responsibility. Id. at 4. The United States promised not to oppose a sentence at the low end of the adjusted guideline range. Id. The plea agreement also featured Petitioner's acknowledgements about the extent of the Court's sentencing discretion:

10. The Defendant understands that the above stipulations are not binding on the Court and that whether the Court accepts these stipulations is a matter solely within the discretion of the Court after it has reviewed the presentence report. Further, the Defendant understands that the Court may choose to deviate from the advisory guideline sentence. The Defendant understands that if the Court does not accept any one or more of the above stipulations and reaches an advisory guideline sentence different than expected by the Defendant, or if the Court deviates from the advisory guideline range, the Defendant will not seek to withdraw the plea of guilty. In other words, regardless of any stipulations the parties may enter into, the Defendant's final sentence is solely within the discretion of the Court.

Id. at 5.

The only other provision of the plea agreement that is relevant to the instant Motion was the "Factual Basis" admitted by Petitioner:

On 18 December 2006, the defendant entered the Bank of America, located at 3101 Carlisle Boulevard NE, in Bernalillo County, in Albuquerque, in the State and District of New Mexico. (The bank [sic] of America is a federally insured financial institution.) He approached a teller at the bank and, by intimidation, demanded money. The teller complied in the amount of $634.00 which was handed to the defendant.

The defendant then left the bank and a security guard was directed to follow him. The guard exited the bank and observed the defendant running across the parking lot whereupon a concerned citizen followed the defendant across the street to Savon Cash and Carry Flowers. The defendant ran into the flower shop and hid in the restroom and the concerned citizen told him to remain there until the police arrived.

The Albuquerque Police (APD) SWAT team arrived and extricated the defendant. During the extrication of the defendant, the defendant sustained a facial cut which was treated by the SWAT doctor. In the course of the medical assistance, the defendant confessed to having just robbed the bank and that he had flushed the proceeds of the bank robbery down the flower shop's toilet. He was also identified by the bank's teller as the perpetrator of the bank robbery.

Id. at 3-4 (all parentheses in original).³

On April 27, 2007, U.S. Probation Officer Teressa Ray Pena disclosed her Presentence Investigation Report (hereafter "PSR").⁴ At ¶ 29, the PSR recommended that the Court find that Petitioner was a career offender under U.S.S.G. § 4B1.1. In making this recommendation, the PSR emphasized that the instant offense was a "qualifying felony offense" and that Petitioner had two earlier convictions for crimes of violence, referencing his 1992 federal conviction for bank robbery (CR 92-290, D.N.M.) and his 1989 state convictions for robbery (88 CR 46261, 2nd Judicial District Court, NM). PSR ¶ 29.⁵ In addition to chronicling Petitioner's extensive criminal history in ¶¶ 32-44, the PSR recommended an adjusted offense level of 29, a criminal history category of VI, and a resulting guideline imprisonment range of 151-188 months. PSR ¶¶ 31, 46, 61. Petitioner filed no objections to the PSR. He did, however, submit an explanation of his offense and expression of responsibility, which were memorialized in an addendum to the PSR.

On June 21, 2007, the Court held a sentencing hearing. Cr. Doc. 24. A copy of the transcript of that hearing is appended hereto as Attachment 1. At the outset of the hearing, Petitioner affirmed that all of the statements of fact included in the report were true and correct. Tr. at 2. The Court thereupon "adopt[ed] as factual findings of the court all of the factualstatements in [the] Presentence Report." Id. Apart from asking the Court to vary from the adjusted guideline range, neither Petitioner nor his counsel objected to any portion of the PSR, whether factual, legal, or otherwise. Petitioner's counsel acknowledged that there had been no written request for variance submitted prior to the hearing, even though such a request was not precluded by the plea agreement. Id. at 4-5. The Court sentenced Petitioner to a prison term of 151 months, the bottom of the adjusted guideline range. Id. at 6. There was no discussion at the hearing about whether, how, or why Petitioner qualified as a career offender under § 4B1.1.

The Court filed its judgment on June 22, 2007. Cr. Doc. 25. Having waived his right to appeal, Cr. Doc. 22 at ¶ 12, Petitioner did not appeal his sentence.

The instant Motion is Petitioner's first attempt to collaterally attack his sentence. He argues that each of the offenses on which his designation as a career offender was based no longer qualify as "crimes of violence" in light of Johnson v. United States, 559 U.S. 133 (2010) (Johnson I) and Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II). Doc. 1 at 2. He contends that the Johnson II decision should be applied retroactively to reduce the sentencing guideline range for his 2006 bank robbery offense from 151-188 months to 63-78 months. Id. at 1.

Because of my view that the application of Johnson II to the guidelines should not be given retroactive effect, and because both federal bank robbery and New Mexico state robbery remain crimes of violence under U.S.S.G. § 4B1.2(a) irrespective of Johnson I or II, I recommend denying the Motion.

II. ANALYSIS

A. Is Johnson II Retroactive to Guidelines-Only Cases on Collateral Review?

In Johnson II, the Supreme Court held that the residual clause of the definition of "violentfelony" under the Armed Career Criminal Act ("ACCA") is unconstitutionally vague. 135 S. Ct. at 2563. Until its demise, the residual clause appeared at the end of 18 U.S.C. § 924(e)(2)(B)(ii), which read: "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)(ii) (2012) (emphasis added). In so holding, the Supreme Court ruled that individuals could not be subject to the ACCA if any of their three requisite prior convictions qualified as "violent felonies" only under the invalidated residual clause. 135 S. Ct. at 2563. Then, in Welch v. United States, the Supreme Court announced that Johnson II would apply retroactively to ACCA cases on collateral review, reasoning that Johnson II announced a new substantive rule. 136 S. Ct. 1257, 1264-65 (2016).

Here, Petitioner was not sentenced as an "armed career criminal" under the ACCA, but rather a "career offender" under § 4B1.1 of the advisory Sentencing Guidelines. That provision considerably increases the offense level for an adult offender being sentenced for a "crime of violence," as that term is defined in § 4B1.2(a), and who has at least two prior convictions for qualifying "crimes of violence."⁶ At the time Petitioner was sentenced, § 4B1.2(a) included a residual clause that - with only a single exception - mirrored the residual clause of the ACCA: "burglary [of a dwelling], arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]" U.S.S.G. § 4B1.2(a)(2).⁷ While the distinction between an "armed career criminal" and a "career offender" may matter when considering the continued validity of certain prior convictions, it does notmake any difference in analyzing whether Johnson II should be applied retroactively to the advisory Sentencing Guidelines.

In order to be entitled to resentencing, Petitioner must still establish that the residual clause of the guideline provision is also unconstitutionally vague, and that his sentence was enhanced pursuant to that clause. In United States v. Madrid, 805 F.3d 1204, 1210-11 (10th Cir. 2015), the Tenth Circuit held on direct appeal that the residual clause in § 4B1.2 was just as unconstitutionally vague as its ACCA counterpart. The United States does not contest this point.⁸ Nonetheless, because Petitioner's motion is a collateral attack on his sentence, he would not be entitled to relief unless such a decision applies retroactively.

The question of retroactivity is governed by the now-familiar framework set out in Teague v. Lane, 489 U.S. 288, 309-13 (1989) (plurality opinion). "[A]s a general matter, 'new constitutional rules of criminal procedure will not be applicable to those cases which have become final before...