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United States v. Garcia

United States Court of Appeals, Tenth Circuit

December 18, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
PHILLIP ANGEL GARCIA, Defendant-Appellant.

         Appeal from the United States District Court for the District of New Mexico (D.C. Nos. 1:16-CV-00240-JB-LAM & 1:07-CR-00788-JB-1)

         Submitted on the briefs: [*]

          Michael A. Keefe, Assistant Federal Public Defender, Albuquerque, New Mexico, for Appellant.

          James D. Tierney, Acting United States Attorney, James R.W. Braun, Assistant United States Attorney, Albuquerque, New Mexico, for Appellee.

          Before TYMKOVICH, Chief Judge, HARTZ and O'BRIEN, Circuit Judges.

          O'BRIEN, Circuit Judge.

         More snow is here added to the Johnson avalanche. Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson II). In what has become a common refrain in a host of diverse circumstances, Phillip Angel Garcia claims the New Mexico robbery statute does not satisfy the element of violent physical force necessary for an ACCA sentencing enhancement. He is wrong; it does.

         I. BACKGROUND

         Garcia originally pled guilty to one count of possessing a firearm and ammunition after having been convicted of a felony, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He moved to withdraw his guilty plea, but the judge denied the motion. His crime carried a prison term of up to 10 years, id. § 924(a)(2), but because he had three or more prior "violent felony" convictions, the Armed Career Criminal Act of 1984 (ACCA) increased his punishment range to a mandatory 15 years to life. Id. § 924(e)(1). In 2008, the judge sentenced him to a prison term of 188 months. He appealed; we affirmed. United States v. Garcia, 577 F.3d 1271, 1273 (10th Cir. 2009). That appeal did not raise the ACCA issue, this one does.

         As noted, the ACCA mandates an enhanced sentence of imprisonment of not less than 15 years when the violator of § 922(g) has "three previous convictions . . . for a violent felony." 18 U.S.C. § 924(e)(1). To fall within the definition of a violent felony, a prior conviction must be "punishable by imprisonment for a term exceeding one year, " id. § 924(e)(2)(B), and must satisfy one of three predicates:

(1)Under the Elements Clause, it must have "as an element the use, attempted use, or threatened use of physical force against the person of another, "§ 924(e)(2)(B)(i);
(2) Under the Enumerated-Offenses Clause, it must be a categorical match to the generic offenses of "burglary, arson, or extortion, " § 924(e)(2)(B)(ii); or
(3) Under the Residual Clause, it must "otherwise involve[] conduct that presents a serious potential risk of physical injury to another, " id.

United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017), petition for cert. filed (U.S. Apr. 4, 2017) (No. 16-8616).

         The Presentence Report concluded Garcia should be sentenced under the ACCA, using three of his prior felony convictions-arson, residential burglary, and possession of a deadly weapon by a prisoner-each of which it identified as a violent felony. The PSR also listed his other prior convictions, including a third-degree robbery conviction under N.M. Stat. Ann. § 30-16-2.

         It calculated Garcia's advisory Guideline sentencing range at 188 to 235 months. The judge adopted the PSR's findings and sentenced Garcia at the bottom of this range, 188 months of imprisonment, to be followed by a three-year term of supervised release.

         In 2015, the Supreme Court decided Johnson II. The Court held because the Residual Clause was unconstitutionally vague, "imposing an increased sentence under the residual clause . . . violates the Constitution's guarantee of due process." Johnson II, 135 S.Ct. at 2563. It left intact the Elements and Enumerated-Offenses Clauses. Id.

         On March 30, 2016, Garcia filed a § 2255 motion contending his sentence was unconstitutional under Johnson II. He claimed one of his three predicate convictions, possession of a deadly weapon by a prisoner, only qualified as a violent felony under the then defunct Residual Clause.

         The government conceded this point, but argued the (later declared and retroactively applied) error was harmless, because, even without the weapon possession conviction Garcia had three qualifying prior violent felony convictions: a conviction for burglary, an arson conviction, and a New Mexico robbery conviction. The robbery conviction, it said, qualified as a violent felony under the Elements Clause and was an apt substitution for the conviction for unlawful weapon possession.

         The government's argument presented several complications. In the original sentencing the judge had not expressly relied on the New Mexico robbery conviction as an ACCA qualifying conviction. And in Johnson v. United States, 559 U.S. 133 (2010) (Johnson I), the Supreme Court had concluded "physical force" under the Elements Clause "means violent force-that is, force capable of causing physical pain or injury to another person." Id. at 140. Mere offensive touching, for example, does not suffice. See id. at 139-42. The government argued Garcia's robbery conviction qualified under this standard because the use of violent force was a necessary element of New Mexico robbery. Alternatively, it argued against applying the Johnson I standard retroactively to Garcia's robbery conviction. Garcia contested these arguments.

         Before the judge decided Garcia's § 2255 motion, the government changed course. It withdrew its argument about the applicability of Johnson I and conceded "New Mexico's robbery can be committed without force causing physical pain or injury." R., Vol. 4 at 57. This meant the robbery conviction did not qualify as a violent felony under the ACCA's Elements Clause after all. After that concession the Probation Office also revisited its position; it filed a Revised Sentencing Memorandum in which it stated Garcia's robbery conviction was not a violent felony and he was therefore eligible for resentencing.

         On the same day the judge entered his Memorandum Opinion and Order, the government filed a supplemental brief in which it again reversed course. Citing our recently published decision in Harris, 844 F.3d 1260, the government's second revised position was that the "New Mexico robbery in the third degree is indeed a qualifying violent felony under the 'force clause' [or "Elements Clause"] of 18 U.S.C. § 924(e)(2)(B)(i)." R., Vol. 4 at 158. It does not appear the judge considered this supplemental brief in reaching a decision.

         He agreed with Garcia in part; the weapon conviction did not qualify as a predicate offense under Johnson II. But, he said, the error was harmless because the New Mexico robbery conviction could instead serve as his third predicate conviction because N.M. Stat. Ann. § 30-16-2, which prohibits theft by use or threatened use of force or violence, qualified as a violent felony under the Elements Clause as interpreted by Johnson I. Garcia therefore had three qualifying predicate violent felonies under the ACCA.

         The judge denied the § 2255 motion. In a separate order, he denied Garcia's request for a Certificate of Appealability (COA). We later granted a COA and now affirm.


         1. Standard of Review and Applicable Law

         "We review the district court's legal rulings on a § 2255 motion de novo and its findings of fact for clear error." Harris, 844 F.3d at 1263 (brackets and internal quotation marks omitted). "Whether a prior conviction satisfies the ACCA's violent felony definition is a legal question we review de novo." United States v. Titties, 852 F.3d 1257, 1263 (10th Cir. 2017). "[T]he Government bears the burden of proving a prior conviction qualifies under the ACCA, " see id. at 1272 n.19, and it is the government's burden to prove the Residual Clause error was harmless, see generally O'Neal v. McAninch, 513 U.S. 432, 437-45 (1995) (stating burden of proving harmlessness of error affecting defendant's substantial rights lies with government).

         To determine this issue, "we apply the categorical approach, focusing on the elements of the crime of conviction, not the underlying facts." Harris, 844 F.3d at 1263. Thus, we must determine whether the New Mexico robbery statute "has as an element the use, attempted use, or threatened use of physical force against ...

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