United States v. King

• Decision Date: 01 December 2016
• Docket Number: Cr. No. 02-2092 MV,Civ. No. 16-501 MV/KK
• Citation: United States v. King, Civ. No. 16-501 MV/KK, Cr. No. 02-2092 MV (D. N.M. Dec 01, 2016)
• Parties: UNITED STATES OF AMERICA, Plaintiff/Respondent, v. DAVID LOUIS KING, Defendant/Movant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff/Respondent, v. DAVID LOUIS KING, Defendant/Movant.

Civ. No. 16-501 MV/KK

Cr. No. 02-2092 MV

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

December 1, 2016

MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

THIS MATTER comes before the Court on Defendant/MovantDavid Louis King's ("Defendant")Emergency Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255(Doc. 1)("Section 2255 Motion"), filed May 26, 2016.Plaintiff/Respondent the United States of America ("the Government") responded in opposition to the motion on August 8, 2016, and Defendant filed a reply in support of it on August 30, 2016.(Docs. 8, 10.)United States District JudgeMartha Vázquez referred this matter to the undersigned for proposed findings and a recommended disposition on June 30, 2016.(Doc. 4.)

In February of 2004, Defendant pled guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1)and924(e)(1).(Doc. 1at 2; CR Docs. 56, 57.)The Court determined that Defendant had previously been convicted of three violent felonies, and therefore imposed an enhanced sentence of fifteen years' imprisonment pursuant to the Armed Career Criminal Act ("ACCA").18 U.S.C. § 924(e)(1).(CR Doc. 83at 24, 28.)In his Section 2255 Motion, Defendant asks the Court to reduce his sentence because one of the convictions on which the Court relied to enhance it was for New Mexico armed robbery, which, he argues, no longer qualifies as a violent felony under the ACCA in light of the United States Supreme Court's decision in Johnson v. United States, — U.S. —, 135 S. Ct. 2551(2015)("Samuel Johnson").(Docs. 1, 10.)The Government opposes Defendant's motion, arguing that New Mexico armed robbery remains a violent felony under the ACCA despite the Samuel Johnson decision.(Doc. 8.)

The Court has meticulously reviewed the pleadings and attachments in this civil proceeding and in the underlying criminal case, Cr.No. 02-2092 MV.The Court has also examined the transcript of the sentence proceedings before Judge Vázquez, (CRDoc. 83), as well as the Presentence Investigation Report ("PSR").(CRDoc. 77;Doc. 9.)Because Defendant's Section 2255 Motion raises purely legal issues, an evidentiary hearing is unnecessary.28 U.S.C. § 2255(b).Having carefully considered the parties' submissions, the civil and criminal record, and the relevant law, the Court recommends that Defendant's Section 2255 Motion be GRANTED.

I.FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On November 21, 2002, the Government charged Defendant 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)and924(a)(2).(CRDoc. 1.)The Court appointed attorney Kenneth Gleria to represent Defendant, who pled not guilty to the charges against him on December 12, 2002.(CR Docs. 5, 7.)On January 30, 2003, the Court released Defendant from custody pending trial.(CR Docs. 16, 17.)

Defendant pled guilty to Count I of the indictment pursuant to a plea agreement on July 15, 2003.(CRDoc. 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.(CRDoc. 32.)The Government identified three predicate convictions to support this 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 Defendant to withdraw his guilty plea on September 25, 2003.(CRDoc. 35.)On October 8, 2003, the Government filed a superseding indictment to include charges that Defendant's sentence should be enhanced under the ACCA.(CRDoc. 37.)

Defendant 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, Defendant acknowledged that he faced a minimum sentence of fifteen years' imprisonment under the ACCA.(CR Doc. 56at 2.)However, on April 21, 2004, Defendant filed objections to the PSR, 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.(CRDoc. 61.)Rejecting this argument, the Court sentenced Defendant to fifteen years' imprisonment at a hearing on May 26, 2004.(CR Docs. 64, 83.)The Court entered a judgment of conviction against Defendant on the same date,¹ and subsequently dismissed the original indictment and Count I of the superseding indictment.(CR Docs. 65, 67.)On appeal, the Tenth Circuit affirmed the use of Defendant's prior commercial burglary conviction to enhance his sentence.(CRDoc. 73.)

Defendant has been in federal custody since July of 2004.(Doc. 1at 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 Samuel Johnson, 135 S. Ct.at 2551.(Doc. 1.)The Government responded in opposition to the motion on August 8, 2016, and Defendant filed a reply in support of it on August 30, 2016.(Docs. 8, 10.)In his motion, Defendant asks the Court to reduce his sentence from fifteen years' to no more than ten years' imprisonment, i.e., the maximum sentence he faced without the ACCA enhancement, and order his immediate release from federal custody because he has already been imprisoned for more than ten years.(Doc. 1at 1.)In support of this request, Defendant argues that the enhancement of his sentence was improper, because: (1)the Court necessarily relied on the ACCA's "residual clause" to find that his prior armed robbery conviction was for a violent felony under the Act; and, (2)the Samuel Johnson decision struck down the residual clause as unconstitutionally vague.(Id. at 4-5;Doc. 10at 1-3.)

In its response in opposition to Defendant's motion, the Government acknowledges that the Court likely relied on the ACCA's residual clause to find that Defendant's prior armed robbery conviction was for a violent felony, and that this clause is now invalid.(Doc. 8at 1-2.)However, the Government contends that the enhancement of Defendant's sentence was nevertheless proper because New Mexico armed robbery still qualifies as a violent felony under the ACCA's "force clause," which Samuel Johnson left intact.(Id. at 2-3.)Defendant's Section 2255 Motion is now before the undersigned for proposed findings and a recommended disposition.

II.ANALYSIS

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 fifteen years' imprisonment.18 U.S.C. § 924(e)(1).The ACCA defines the term "violent felony" to mean

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 force 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 "force clause" or "elements clause"; the non-italicized portion of subpart (ii) is known as the "enumerated clause"; and, the italicized portion of subpart (ii) is known as the "residual clause."Samuel Johnson, 135 S. Ct. at 2556;United States v. Fritts, — F.3d —, 2016 WL 6599553, at *1(11^th Cir.Nov. 8, 2016);United States v. Gardner, 823 F.3d 793, 801-02(4^th Cir.2016);United States v. Priddy, 808 F.3d 676, 683(6^th Cir.2015).In Samuel Johnson, the Supreme Court ruled that the ACCA's residual clause is unconstitutionally vague, but left its force and enumerated clauses intact.²135 S. Ct. at 2557, 2563.

In determining whether an offense is a violent felony under the ACCA, courts must generally apply the "categorical approach," considering only the offense's statutory elements, and not the actual facts underlying the defendant's prior conviction.United States v. Duncan, 833 F.3d 751, 754(7^th Cir.2016);Gardner, 823 F.3d at 802;United States v. Smith, 652 F.3d 1244, 1246(10^th Cir.2011).Courts must presume that a prior conviction "rested upon nothing more than the least of the acts criminalized" by the statestatute.Moncrieffe v. Holder, — U.S. —, 133 S. Ct. 1678, 1684(2013)(internal quotation marks and citations omitted).

To satisfy this categorical approach, it is not necessary that every conceivable factual offense covered by a statute fall within the ACCA.Rather, the properinquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, qualifies under the ACCA as a violent felony.

Smith, 652 F.3d at 1246(citation omitted);seeDuncan, 833 F.3d at 757("[I]n applying the categorical approach, we are concerned with the ordinary case, not fringe possibilities.")(internal quotation marks and citation omitted).To identify the least culpable conduct a state statute criminalizes in the ordinary case, federal courts look to how the state's courts have interpreted the statute.Johnson v. United States, 559 U.S. 133, 138(2010)("Curtis Johnson");United States v. Seabrooks, 839 F.3d 1326, 1347(11^th Cir.2016)(Martin, J., concurring).

When a statute includes alternative elements that create distinct versions of a crime, courts may employ the "modified categorical approach."Gardner, 823 F.3d at 802;United States v. Hood, 774 F.3d 638, 645(10^th Cir.2014);seeMathis v. United States, — U.S. —, 136 S. Ct. 2243, 2249(2016)("[T]his Court approved the 'modified categorical...