United States v. Pam

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS August 15, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2171
LARRY PAM,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. Nos. 1:16-CV-00358-LH-GBW &
1:11-CR-00882-LH-1)
_________________________________
Submitted on the briefs:*
Darrell M. Allen, Albuquerque, New Mexico, for Defendant-Appellant.
James D. Tierney, Acting United States Attorney, Las Cruces, New Mexico; C. Paige
Messec, Assistant United States Attorney, Albuquerque, New Mexico, for Plaintiff-
Appellee.
_________________________________
Before BRISCOE, SEYMOUR, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
I. INTRODUCTION
After pleading guilty to being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), Larry Pam was
sentenced to a fifteen-year term of imprisonment consistent with a plea agreement
entered into pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Mr. Pam’s
fifteen-year sentence exceeds the ten-year statutory maximum generally applicable to
violations of § 922(g)(1). See 18 U.S.C. § 924(a)(2). But the district court accepted
the Rule 11(c)(1)(C) plea agreement and imposed the agreed-upon sentence with the
understanding that Mr. Pam is an armed career criminal under the Armed Career
Criminal Act (“ACCA”) and therefore is subject to a mandatory minimum sentence
of fifteen years’ imprisonment. Id. at § 924(e)(1).
Mr. Pam unsuccessfully challenged his conviction and sentence on direct
appeal and collateral attack, but in light of the United States Supreme Court’s
decisions in Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United
States, 136 S. Ct. 1257 (2016), we granted Mr. Pam authorization to file a second or
successive motion for post-conviction relief under 28 U.S.C. § 2255. Accordingly,
Mr. Pam filed a pro se § 2255 motion contending that his sentence had been
unconstitutionally enhanced under the ACCA. The district court dismissed the
motion, determining that the new constitutional rule announced in Johnson is
inapplicable to Mr. Pam’s sentence and, in the alternative, that the collateral attack
waiver contained in Mr. Pam’s plea agreement bars him from bringing the instant
§ 2255 motion.
2
Mr. Pam appealed the district court’s decision and we granted him a
Certificate of Appealability (“COA”) as to whether (1) “the district court erred in
holding that [Mr.] Pam was not entitled to relief under Johnson,” and (2) “the district
court erred in holding that [Mr.] Pam’s claims were barred by the collateral attack
waiver contained in his plea agreement.” Exercising jurisdiction under 28 U.S.C.
§ 1291, we affirm the district court’s dismissal of Mr. Pam’s § 2255 motion, but we
do so on alternative grounds.1
II. BACKGROUND
In 2011, Mr. Pam was named in a single-count indictment for being a felon in
possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). The presentence investigation report (“PSR”) calculated Mr. Pam’s United
States Sentencing Guidelines (“Guidelines”) range of imprisonment as 188 to 235
months and indicated Mr. Pam was subject to a statutory minimum fifteen-year term
of imprisonment because he qualified as an armed career criminal under the ACCA.
To be an armed career criminal under the ACCA, the defendant must have “three
previous convictions by any court . . . for a violent felony or a serious drug offense.”
See 18 U.S.C. § 924(e)(1). The PSR identified Mr. Pam’s three ACCA predicate
offenses as two convictions for shooting at or from a motor vehicle, in violation of
New Mexico Statutes Annotated § 30-3-8(B), and a single conviction for aggravated
1
“[W]e are ‘free to affirm a district court decision on any grounds for which
there is a record sufficient to permit conclusions of law, even grounds not relied upon
by the district court.’” Griess v. Colorado, 841 F.2d 1042, 1047 (10th Cir. 1988)
(quoting Alfaro Motors, Inc., v. Ward, 814 F.2d 883, 887 (2d Cir. 1987)).
3
assault with a deadly weapon, in violation of New Mexico Statutes Annotated
§ 30-3-2(A).
The district court held a plea hearing on September 20, 2011, during which
Mr. Pam pled guilty and entered into a plea agreement pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C).2 In addition to containing Mr. Pam’s admission of
guilt to being a felon in possession of a firearm and ammunition, the plea agreement
states that while this offense carries a maximum penalty of “imprisonment for a
period of not more than ten (10) years; . . . [Mr. Pam] may be an armed career
criminal which carries a minimum sentence of fifteen (15) years[’] imprisonment.” It
further reflects the parties’ agreement that “a sentence of 180 months[’]
imprisonment, or 15 years[’] imprisonment, is the appropriate disposition for this
case.” The plea agreement also includes a section entitled “Validity of Convictions,”
in which Mr. Pam stipulates that he has two prior felony convictions for shooting at
or from a motor vehicle, as well as a prior felony conviction for aggravated assault
with a deadly weapon. Finally, the plea agreement contains a collateral attack waiver,
which states:
[T]he Defendant agrees to waive any collateral attack to the Defendant’s
conviction(s) pursuant to 28 U.S.C. § 2255, except on the issue of
counsel’s ineffective assistance in negotiating or entering this plea or
this waiver.
2
Federal Rule of Criminal Procedure 11(c)(1)(C) allows parties in a criminal
case to “agree that a specific sentence or sentencing range is the appropriate
disposition of the case, or that a particular provision of the Sentencing Guidelines, or
policy statement, or sentencing factor does or does not apply.” Fed. R. Crim. P.
11(c)(1)(C). If a district court accepts a Rule 11(c)(1)(C) plea agreement, the parties’
agreed-to sentence or sentencing range “binds the court.” Id.
4
At a sentencing hearing conducted four months later, the district court
accepted the parties’ Rule 11(c)(1)(C) plea agreement and sentenced Mr. Pam to the
agreed-upon sentence of 180 months’ imprisonment. The district court, in explaining
its acceptance of the agreement, noted the PSR’s “finding that [Mr. Pam] is an Armed
Career Criminal” with “three convictions for violent felonies.”
After unsuccessfully seeking post-conviction relief through an initial § 2255
motion, challenging his conviction and sentence on direct appeal, and pursuing other
avenues not relevant to this appeal, Mr. Pam requested authorization to file a second
or successive § 2255 motion. His request was based on the Supreme Court’s decision
in Johnson, which struck down the portion of the ACCA’s definition of “violent
felony” known as the residual clause. 135 S. Ct. at 2557. We granted Mr. Pam’s
request and, shortly after his second or successive § 2255 motion was filed with the
United States District Court for the District of New Mexico, the district court
appointed counsel to represent Mr. Pam. Despite being represented by counsel,
Mr. Pam subsequently filed a pro se amended § 2255 motion, which in large measure
repeated the claims and arguments presented in the first motion we authorized him to
file.
The district court issued a single order dismissing both motions, reasoning that
Mr. Pam is not entitled to post-conviction relief because (1) Johnson is inapplicable
to Mr. Pam’s sentence, which was imposed pursuant to a Rule 11(c)(1)(C) plea
agreement and not under the provisions of the ACCA and (2) Mr. Pam’s collateral
5
attack waiver is enforceable and bars him from bringing a § 2255 motion based on
Johnson. Through counsel, Mr. Pam filed a motion requesting the district court to
vacate its dismissal of his § 2255 motion. Mr. Pam then filed a notice of appeal.
Because Mr. Pam’s motion to vacate remained pending before the district court, we
held his appeal in abeyance until the district court issued an order denying the
motion.3 Mr. Pam subsequently requested but was denied a COA from the district
court to challenge the dismissal of his § 2255 motion. Mr. Pam then petitioned this
court, and we granted him a COA on two issues: “(1) whether the district court erred
in holding that [Mr.] Pam was not entitled to relief under Johnson; and (2) whether
the district court erred in holding that [Mr.] Pam’s claims were barred by the
collateral attack waiver contained in his plea agreement.”
III. DISCUSSION
“In reviewing denial of a § 2255 motion for post-conviction relief where a
COA has been granted, ‘we review the district court’s findings of fact for clear error
and its conclusions of law de novo.’” United States v. Viera, 674 F.3d 1214, 1217
(10th Cir. 2012) (quoting United States v. Rushin, 642 F.3d 1299, 1302 (10th Cir.
2011)). “But where, as here, the district court does not hold an evidentiary hearing,
but rather denies the motion as a matter of law upon an uncontested trial record, our
review is strictly de novo.” Rushin, 642 F.3d at 1302.
3
Mr. Pam did not file an amended notice of appeal incorporating the district
court’s denial of his motion to vacate. As a result, we lack jurisdiction to consider the
district court’s denial of that motion. See Breeden v. ABF Freight Sys., Inc., 115 F.3d
749, 752 (10th Cir. 1997); Fed. R. App. P. 4(a)(4)(B)(ii).
6
In examining Mr. Pam’s appeal of the district court’s decision, we first address
the threshold issue of whether Mr. Pam may bring a Johnson-based challenge to an
agreed-upon sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement. We
conclude Mr. Pam may bring such a challenge because his plea agreement expressly
references the ACCA as the basis for his term of imprisonment. Next, we consider
whether the collateral attack waiver contained in Mr. Pam’s plea agreement bars him
from challenging his sentence under § 2255. Determining that it does not, we then
examine whether Mr. Pam’s felony convictions for shooting at or from a motor
vehicle, in violation of New Mexico Statutes Annotated § 30-3-8(B), constitute
violent felonies under the ACCA after Johnson. Resolving this final issue in favor of
the government, we conclude the district court was correct in dismissing Mr. Pam’s
§ 2255 motion.
A. Rule 11(c)(1)(C) and Johnson
Before the district court, Mr. Pam argued that his 180-month sentence is
unconstitutional because his prior convictions for shooting at or from a motor
vehicle, in violation of New Mexico Statutes Annotated § 30-3-8(B), as well as his
conviction for aggravated assault with a deadly weapon, in violation of New Mexico
Statutes Annotated § 30-3-2(A), no longer constitute violent felonies under the
ACCA after Johnson. The district court did not reach the merits of Mr. Pam’s
arguments, but found he was not entitled to post-conviction relief because (1) his
claim for relief from a Rule 11(c)(1)(C) plea agreement does not implicate Johnson
7
and (2) the waiver provision in his plea agreement bars him from raising a Johnson-
related collateral attack to his sentence.
In reaching its determination that Mr. Pam’s § 2255 motion does not implicate
Johnson, the district court reasoned that because Mr. Pam “was not sentenced under
the provisions of the ACCA, but was instead sentenced to a stipulated and agreed[-
upon] term of 180 months under” a Rule 11(c)(1)(C) plea agreement, “Johnson is
inapplicable to [his] sentence.” The district court acknowledged Justice Sotomayor’s
controlling concurrence in Freeman v. United States, which outlines two situations in
which a Rule 11(c)(1)(C) plea agreement is “based on” a Guidelines sentencing range
for purposes of post-conviction sentence reductions under 18 U.S.C. § 3582(c)(2).
564 U.S. 522, 534–544 (2011) (Sotomayor, J., concurring) (holding a term of
imprisonment resulting from a Rule 11(c)(1)(C) plea agreement is “based on” the
Guidelines for purposes of § 3582(c)(2) when the agreement (1) “call[s] for the
defendant to be sentenced within a particular Guidelines sentencing range,” or
(2) “provide[s] for a specific term of imprisonment . . . but also make[s] clear that the
basis for the specified term is a Guidelines sentencing range” and “that sentencing
range is evident from the agreement itself”); see also United States v. Graham, 704
F.3d 1275, 1277–78 (10th Cir. 2013) (concluding Justice Sotomayor’s concurrence in
Freeman is controlling). But the district court concluded the application of Freeman
would not change the result here because Mr. Pam’s “agreement did not use or
employ a Guideline[s] sentencing range.”
8
Reviewing the district court’s determination de novo, United States v. Barrett,
797 F.3d 1207, 1213 (10th Cir. 2015), we hold the district court erred in finding that
Mr. Pam’s sentence was not imposed under the ACCA and therefore the court also
erred in concluding that Johnson could not be applicable to Mr. Pam’s sentence.
Although we agree that Mr. Pam’s plea agreement does not implicate the Guidelines
and that he is proceeding under § 2255, rather than § 3582(c)(2), we nevertheless
consider Freeman’s analysis instructive in resolving whether Mr. Pam’s plea was
based on the enhanced sentence available for an armed career criminal under the
ACCA. While, “[i]n the [Rule 11(c)(1)(C)] agreement context, . . . it is the binding
plea agreement that is the foundation for the term of imprisonment to which the
defendant is sentenced,” Mr. Pam’s plea agreement expressly used the ACCA—
specifically its statutorily mandated minimum term of imprisonment—to establish the
agreed-upon 180-month sentence. Freeman, 564 U.S. at 535 (Sotomayor, J.,
concurring). Notably, Mr. Pam’s plea agreement states that while his crime of
conviction carries a maximum penalty of “imprisonment for a period of not more
than ten (10) years,” he “may be an armed career criminal which carries a minimum
sentence of fifteen (15) years[’] imprisonment.” The agreement also includes a
section entitled “Validity of Convictions,” in which Mr. Pam stipulates to the validity
of three of his prior felony convictions—the same three convictions the PSR
identifies as ACCA predicate offenses. Finally, the plea agreement sets forth an
agreed-upon sentence of 180 months, which exceeds the statutory maximum
9
applicable to violations of 18 U.S.C. §§ 922(g)(1), as set forth in 18 U.S.C.
§ 924(a)(2), unless the ACCA applies.4
Because Mr. Pam’s plea agreement expressly used the ACCA to establish the
agreed-upon term of imprisonment, the binding nature of the agreement does not
prevent us from considering whether Johnson impacts the constitutionality of
Mr. Pam’s sentence.5 Cf. Freeman, 564 U.S. at 534 (Sotomayor, J., concurring)
4
In addition, the district court’s acceptance of the plea agreement was clearly
predicated on its understanding that Mr. Pam was subject to the ACCA. In explaining
its acceptance of the plea agreement and imposition of the agreed-upon 180-month
sentence, the district court expressly noted the PSR’s “finding that [Mr. Pam] is an
Armed Career Criminal” with “three convictions for violent felonies.”
5
A number of district courts have reached a similar conclusion, although their
reasoning differs. See, e.g., United States v. Wolf, No. 1:04-CR-347-1, 2017 WL
736809, at *4–7 (M.D. Pa. Feb. 24, 2017) (unpublished) (holding the rationale in
Freeman is not applicable in the § 2255 context, but nevertheless concluding that a
“Rule 11(c)(1)(C) plea agreement . . . does not preclude Defendant’s entitlement to
§ 2255 relief based on Johnson’s application to the ACCA’s residual clause”); id. at
*5, 5 n.3 (collecting district court cases granting Ҥ 2255 relief to defendants who
entered into Rule 11(c)(1)(C) plea agreements but received now-unconstitutional
sentences in light of Johnson”); United States v. Beck, No. 8:13CR62, 2016 WL
3676191, at *5 (D. Neb. July 6, 2016) (unpublished) (noting a “binding plea
agreement does not prevent the court’s consideration of the impact of the Johnson
decision on the defendant’s sentence”); United States v. Cloud, 197 F. Supp. 3d 1263,
1270–71 (E.D. Wash. 2016) (holding “[i]f a defendant can receive the benefit of a
retroactive Sentencing Guidelines amendment following an 11(c)(1)(C) plea
agreement, the Court can find no reason not to apply a similar rationale to Johnson
claims on collateral review”); Cutshaw v. United States, Nos. 2:09-CR-70-RLJ-
MCLC-1, 2:16-CV-106-RLJ, 2016 WL 3212269, at *2 n.2 (E.D. Tenn. June 7, 2016)
(unpublished) (noting that as a “consequence of Johnson . . . prisoners improperly
subjected to [the ACCA’s] mandatory statutory minimum are uniformly left with
sentences, stipulated or not, exceeding the congressionally authorized maximum
punishment sanctioned for non-ACCA violations of § 922(g)(1),” and challenges to
such sentences “are quintessentially within the scope of [§ 2255] because they
challenge a sentence ‘imposed in violation of the Constitution’” (quoting 28 U.S.C.
§ 2255(a))).
10
(holding that while a term of imprisonment imposed pursuant to a Rule 11(c)(1)(C)
agreement is “‘based on’ the agreement itself, . . . if a [Rule 11(c)(1)(C)] agreement
expressly uses a Guidelines sentencing range . . . to establish the term of
imprisonment, . . . the term of imprisonment is ‘based on’ the range employed” and
not the Rule 11(c)(1)(C) agreement itself). Indeed the government concedes this
point, stating it “does not contend that [Mr.] Pam is barred from seeking relief under
Johnson on the grounds that his sentence was based on his plea agreement, rather
than on the ACCA,” and that “it is clear that his sentence was based at least in part on
the ACCA because it was the ACCA that raised his statutory sentencing range above
the 120-month maximum otherwise applicable.”6 See also Welch, 136 S. Ct. at 1261
(“Because the ordinary maximum sentence for a felon in possession of a firearm is 10
years, while the minimum sentence under the Armed Career Criminal Act is 15 years,
a person sentenced under the [ACCA] will receive a prison term at least five years
6
Although the government acknowledges that Mr. Pam is not barred from
seeking relief under Johnson on the basis that his sentence was imposed pursuant to a
Rule 11(c)(1)(C) plea agreement, it contends we may affirm the district court’s
decision on the alternative ground that Mr. Pam failed to establish that his § 2255
motion relies on the new rule of constitutional law announced in Johnson. See 28
U.S.C. § 2244(b)(2)(A). Specifically, the government argues that where, as here, the
record is silent or inconclusive as to which clause of the ACCA’s “violent felony”
definition the sentencing court relied on to enhance a petitioner’s sentence, a § 2255
petitioner cannot carry his burden of showing the existence of a Johnson-related error
and therefore cannot prevail under § 2255. But because we ultimately conclude that
Mr. Pam has three qualifying convictions for violent felonies under the ACCA,
making his 180-month sentence lawful and providing an alternative basis for
affirming the district court’s dismissal of Mr. Pam’s § 2255 motion, we need not
resolve this additional alternative argument.
11
longer than the law otherwise would allow.”) In sum, Mr. Pam’s sentence was based
on the ACCA.
B. Collateral Attack Waiver
In addition to holding that Johnson is inapplicable to Mr. Pam’s § 2255 motion
based on his agreed-to sentence, the district court determined that the collateral
attack waiver contained in his plea agreement bars him from bringing the instant
§ 2255 motion. The district court concluded that the waiver is enforceable and bars
Mr. Pam’s § 2255 motion because (1) Mr. Pam’s request for relief under Johnson
falls within the scope of the waiver, (2) Mr. Pam knowingly and voluntarily agreed to
the waiver, and (3) enforcement of the waiver would not result in a miscarriage of
justice. See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)
(per curiam) (establishing a three-part test to determine whether an appeal waiver is
enforceable); see also United States v. Viera, 674 F.3d 1214, 1217–18 (10th Cir.
2012) (applying the Hahn analysis to a collateral attack proceeding). Mr. Pam
challenges the district court’s decision, arguing the collateral attack waiver is
unenforceable because his § 2255 motion does not fall within the scope of the waiver
and, alternatively, that enforcement of the waiver would result in a miscarriage of
justice.7 In addition, Mr. Pam argues that he could not have waived his right to bring
7
Although Mr. Pam challenges the scope of the waiver in the plea agreement,
he provides no reasoned analysis or citation to relevant authority in support.
Notwithstanding that inadequate briefing, we exercise our discretion to examine the
plain language of the waiver to determine whether Mr. Pam’s Johnson claim falls
within its scope. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 841 (10th
12
a Johnson-related § 2255 motion because at the time he entered the plea agreement
that right did not yet exist.8
Whether the collateral attack waiver contained in Mr. Pam’s plea agreement is
enforceable is a question of law that we review de novo. United States v. Leyva-
Matos, 618 F.3d 1213, 1216 (10th Cir. 2010); United States v. Cockerham, 237 F.3d
1179, 1183 (10th Cir. 2001). Although “a waiver of collateral attack rights brought
under § 2255 is generally enforceable where the waiver is expressly stated in the plea
agreement and where both the plea and the waiver were knowingly and voluntarily
made,” such waivers are subject to the “same exceptions [that exist for] waiver[s] of
the right to appeal.” Cockerham, 237 F.3d at 1183. As a result, where, as here, a
petitioner raises a collateral attack to his conviction or sentence despite having
waived his right to do so in a plea agreement, we must determine whether the waiver
is enforceable by examining “(1) whether the disputed [collateral attack] falls within
the scope of the waiver of [collateral attack] rights[,] (2) whether the defendant
knowingly and voluntarily waived his [collateral attack] rights[,] and (3) whether
enforcing the waiver would result in a miscarriage of justice.” Hahn, 359 F.3d at
Cir. 2005) (indicating that the appellate court retains discretion to proceed to the
merits of an appeal despite inadequate briefing).
8
In his reply brief, Mr. Pam also appears to argue that the collateral attack
waiver contained in his plea agreement does not bar his § 2255 motion because it
raises “an error of constitutional dimension.” This argument is waived because Mr.
Pam did not present it in his opening brief. See Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007).
13
1325; see also Viera, 674 F.3d at 1216; United States v. Pinson, 584 F.3d 972, 975
(10th Cir. 2009).
We first consider Mr. Pam’s argument that his § 2255 motion does not fall
within the scope of the collateral attack waiver contained in his plea agreement. In
determining the scope of waiver, we apply principles of contract law and examine the
plain language of the plea agreement. United States v. Taylor, 413 F.3d 1146, 1151
(10th Cir. 2005). But we strictly construe the scope of the waiver and interpret any
ambiguities against the government and in favor of Mr. Pam’s collateral attack rights.
United States v. Novosel, 481 F.3d 1288, 1291 n.1 (10th Cir. 2007); Taylor, 413 F.3d
at 1151–52.
Here, we need only examine the plain language of Mr. Pam’s collateral attack
waiver to conclude that it does not bar him from requesting relief from his sentence
under Johnson. In its entirety, Mr. Pam’s collateral attack waiver provides, with our
emphasis:
In addition, the Defendant agrees to waive any collateral attack to the
Defendant’s conviction(s) pursuant to 28 U.S.C. § 2255, except on the
issue of counsel’s ineffective assistance in negotiating or entering this
plea or this waiver.
The district court determined this language prohibits Mr. Pam from bringing the
instant § 2255 motion because it bars “any collateral attack” under § 2255 that is
unrelated to a claim of ineffective assistance of counsel, and Mr. Pam’s motion does
not suggest his claim is based on ineffective assistance of counsel. But in relying on
the waiver’s broad language barring nearly “any collateral attack” under § 2255, the
14
district court overlooked an important limitation to the scope of the waiver. Although
the waiver states Mr. Pam “waive[s] any collateral attack to [his] conviction(s)
pursuant to 28 U.S.C. § 2255” (emphasis added), it does not limit or waive Mr.
Pam’s rights to bring a collateral attack challenging his sentence. And as is evident
from Mr. Pam’s § 2255 motion, he does not challenge the validity of his conviction.
Instead, he challenges the constitutionality of his sentence after Johnson. As a result,
Mr. Pam’s § 2255 motion falls outside the scope of the collateral attack waiver
contained in his plea agreement. The waiver therefore cannot act as a bar to his
request for post-conviction relief under Johnson,9 and the district court erred in
dismissing Mr. Pam’s § 2255 motion on the basis of that waiver.10
9
Because Mr. Pam’s § 2255 motion does not fall within the scope of the
collateral attack waiver contained in the plea agreement, we need not address whether
the waiver was made knowingly and voluntarily, or whether enforcement of the
waiver would constitute a miscarriage of justice. Similarly, we need not address
Mr. Pam’s contention that he could not waive a right that did not yet exist. See
People for Ethical Treatment of Prop. Owners v. U.S. Fish & Wildlife Serv., 852 F.3d
990, 1008 (10th Cir. 2017) (“If it is not necessary to decide more, it is necessary not
to decide more.” (alteration omitted) (quoting PDK Labs, Inc. v. DEA, 362 F.3d 786,
799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the
judgment))).
10
The government contends that even if we determine Mr. Pam’s § 2255
motion does not fall within the scope of the collateral attack waiver contained in his
plea agreement, “[h]is affirmative agreement to an ACCA sentence is another ground
on which to find that [he] has waived his current challenge.” The government argues
that defendants, like Mr. Pam, may waive their ability to raise certain arguments on
appeal by requesting or accepting a certain result before the district court and later
challenging that result on appeal. But the single case the government relies on to
support this contention arises from a drastically different procedural and legal context
than that presented here. In United States v. Carrasco-Salazar, the defendant initially
disputed a sixteen-level Guidelines enhancement included in his PSR, but
subsequently indicated to the district court during a sentencing hearing that the
15
C. New Mexico Statutes Annotated § 30-3-8(B)
As an alternative ground for affirming the district court’s dismissal of Mr.
Pam’s § 2255 motion, the government contends Mr. Pam was properly sentenced as
an armed career criminal because his three prior convictions under New Mexico law
constitute violent felonies under the non-residual clauses of the ACCA. On appeal,
Mr. Pam does not contest that his conviction for aggravated assault with a deadly
weapon is a qualifying felony under the ACCA. Rather, he argues that his two
convictions for shooting at or from a motor vehicle, in violation of New Mexico
Statutes Annotated § 30-3-8(B), do not qualify as violent felonies under the ACCA
after Johnson. To place these arguments in context, we pause to examine the ACCA
and the Supreme Court’s decision in Johnson.
objection had been resolved. 494 F.3d 1270, 1272–73 (10th Cir. 2007). When the
defendant attempted to challenge the sixteen-level Guidelines enhancement on direct
appeal, we concluded the defendant had waived this argument by abandoning his
objection before the district court. Id. We also noted the well-established principle
that an appellant may be barred from appealing an invited error. Id. at 1272.
Here, the government presents no argument or explanation supporting a
conclusion that Mr. Pam invited the sentencing court to commit a Johnson error, or
that Mr. Pam raised and abandoned a Johnson-based objection years before the
Supreme Court issued its decision in Johnson. And while some of our sister circuits
have applied waiver principles similar to those identified in Carrasco-Salazar to
conclude a defendant waived an argument that his sentence had been unlawfully
enhanced under the ACCA, they did so in the context of direct appeals and not
§ 2255 motions, and before Johnson changed the landscape of the ACCA. See, e.g.,
United States v. Lowe, 512 F. App’x 628, 629, 630–31 (7th Cir. 2013) (unpublished);
United States v. Dickerson, 457 F. App’x 232, 232–33 (4th Cir. 2011) (unpublished)
(per curiam); United States v. Hall, 373 F. App’x 588, 589, 591–93 (6th Cir. 2010)
(unpublished). In any event, the government’s inadequate briefing combined with our
resolution of this appeal on other grounds means we need not resolve today how
principles such as preclusion, waiver, or invited error might affect claims based on
Johnson. See People for Ethical Treatment of Prop. Owners, 852 F.3d at 1008.
16
The ACCA provides an enhanced sentence for being a felon in possession of a
firearm if the defendant has three previous convictions for a violent felony or a
serious drug offense. 18 U.S.C. § 924(e)(1). The ACCA definition of a violent felony
establishes three distinct ways in which prior convictions may qualify as predicate
offenses, which are often referred to as the “elements clause,” the “enumerated-
offenses clause,” and the “residual clause.” The definition states:
[T]he term “violent felony” means 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 [the Elements Clause];
or
(ii) is burglary, arson, or extortion, involves use of explosives [the
Enumerated-Offenses Clause], or otherwise involves conduct that
presents a serious potential risk of physical injury to another [the
Residual Clause] . . . .
18 U.S.C. § 924(e)(2)(B); see also United States v. Harris, 844 F.3d 1260, 1263
(10th Cir. 2017).
In Johnson, the Supreme Court struck down the residual clause of the ACCA
as unconstitutionally vague, 135 S. Ct. at 2563, and in Welch v. United States, the
Court ruled that Johnson could be applied retroactively to cases on collateral review,
136 S. Ct. 1257, 1265 (2016). But in Johnson, the Supreme Court expressly stated
that its decision “does not call into question application of the [ACCA] to the four
enumerated offenses, or the remainder of the Act’s definition of a violent felony.”
Johnson, 135 S. Ct. at 2563. This is significant for our purposes because relief under
Johnson is only available if Mr. Pam’s enhanced sentence is supported, at least in
17
part, by the now-unconstitutional residual clause of the ACCA. If instead at least
three of Mr. Pam’s prior convictions satisfy the elements clause, the enumerated-
offenses clause, or are serious drug offenses, it follows that, in any event, he is not
entitled to relief under Johnson.
To resolve this issue, we first conclude that § 30-3-8(B) is a divisible statute.
We then address whether Mr. Pam’s convictions for shooting at or from a motor
vehicle, whether resulting in no injury or great bodily harm, are violent felonies
under the ACCA. Because it is undisputed that Mr. Pam’s crimes of conviction do
not fall within the enumerated offenses listed in the ACCA and are not serious drug
offenses, he is only subject to the ACCA’s fifteen-year minimum sentence if those
convictions have “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). Whether Mr. Pam’s
convictions under § 30-3-8(B) satisfy this definition is a close question, but we
ultimately conclude that they do. Mr. Pam thus qualifies as an armed career criminal
under the ACCA, thereby making his 180-month sentence lawful.
To determine whether the elements of a crime of conviction satisfy the
elements clause, we apply the categorical approach. In doing so, we “‘look only to
the statutory definitions’—i.e., the elements—of a defendant’s prior offenses, and not
‘to the particular facts underlying those convictions.’” Descamps v. United States,
133 S. Ct. 2276, 2283 (2013) (quoting Taylor v. United States, 495 U.S. 575, 600
(1990)). “We must presume that the conviction[s] rested upon nothing more than the
least of the acts criminalized” by the statute, Moncrieffe v. Holder, 133 S. Ct. 1678,
18
1684 (2013) (alternations and internal quotation marks omitted), but “such conduct
only includes that in which there is a ‘realistic probability, not a theoretical
possibility’ [that] the state statute would apply,” United States v. Harris, 844 F.3d
1260, 1264 (10th Cir. 2017); see also United States v. Titties, 852 F.3d 1257, 1274
(10th Cir. 2017) (noting courts “must ‘focus on the minimum conduct criminalized
by the state statute’ without applying ‘legal imagination’ to consider hypothetical
situations that technically violate the law but have no ‘realistic probability’ of falling
within its application” (quoting Moncrieffe, 133 S. Ct. at 1684–85)). “‘If the statute
sweeps more broadly’ than the ACCA definition—that is, if some conduct would
garner a conviction but would not satisfy the [elements clause] definition—then any
‘conviction under that law cannot count as an ACCA predicate.’” Titties, 852 F.3d at
1266 (alteration omitted) (quoting Descamps, 133 S. Ct. at 2283).
However, in a narrow range of cases where the statute of conviction is a
divisible statute because it “sets out one or more elements of the offense in the
alternative,” Descamps, 133 S. Ct. at 2281, we must first employ the modified
categorical approach to determine “the relevant elements for . . . comparison under
the categorical approach,” Titties, 852 F.3d at 1265; see also Descamps, 133 S. Ct. at
2285 (noting “the modified approach merely helps implement the categorical
approach when a defendant was convicted of violating a divisible statute”). The
modified categorical approach allows courts to “consult record documents from the
defendant’s prior case for the limited purpose of identifying which of the statute’s
alternative elements formed the basis of the prior conviction.” Titties, 852 F.3d at
19
1266; see also Mathis, 136 S. Ct. at 2249 (holding the modified categorical approach
permits courts to look at “a limited class of documents (for example, the indictment,
jury instructions, or plea agreement and colloquy) to determine what crime, with
what elements, a defendant was convicted of”). Once the relevant elements of the
statute of conviction have been identified through use of the modified categorical
approach, “courts ‘can then do what the categorical approach demands’ and compare
those elements to the ACCA definition” of violent felony. Titties, 852 F.3d at 1266
(quoting Descamps, 133 S. Ct. at 2281).
Because the modified categorical approach “‘has no role to play’ when the
statute of conviction is indivisible,” a court must make the threshold determination
that a statute is divisible before applying the modified categorical approach. Titties,
852 F.3d at 1267 (quoting Descamps, 133 S. Ct. at 2285). A divisible statute is one
that “sets out one or more elements of the offense in the alternative,” Descamps, 133
S. Ct. at 2281, and “thereby define[s] multiple crimes,” Mathis, 136 S. Ct. at 2249.
To be considered divisible, “the statutory phrases listed in the alternative must be
elements, not means.” Titties, 852 F.3d at 1267. “‘Elements’ are the ‘constituent
parts’ of a crime’s legal definition—the things the ‘prosecution must prove to sustain
a conviction.’” Mathis, 136 S. Ct. at 2248 (quoting Black’s Law Dictionary 634 (10th
ed. 2014)). “By contrast, means are ‘various factual ways of committing some
component of the offense.’” Titties, 852 F.3d at 1267 (quoting Mathis, 136 S. Ct. at
2249).
20
The Supreme Court has identified several tools courts may employ to assist in
determining whether an alternatively phrased statute sets forth elements of the crime
of conviction or means for committing some component of the offense. See Titties,
852 F.3d at 1267–68. First, the language of the statute itself may resolve the issue.
“If statutory alternatives carry different punishments, then under Apprendi [v. New
Jersey, 530 U.S. 466 (2000),] they must be elements. Conversely, if a statutory list is
drafted to offer ‘illustrative examples,’ then it includes only a crime’s means of
commission.” Mathis, 136 S. Ct. at 2256 (citations omitted). Second, a state court
decision may definitively answer the question. When a state supreme court rules that
a statute lists alternative means as opposed to alternative elements for committing an
offense, “a sentencing judge need only follow what [the ruling] says.” Id. Finally, “if
state law fails to provide clear answers,” courts may look to “the record of a prior
conviction itself.” Id. “For instance, if an indictment or the jury instruction includes
the statute’s alternative terms, ‘[t]hat is as clear an indication as any that each
alternative is only a possible means of commission, not an element.’” Titties, 852
F.3d at 1268 (alteration in original) (quoting Mathis, 136 S. Ct. at 2257).
“Conversely, an indictment and jury instructions could indicate, by referencing one
alternative term to the exclusion of all others, that the statute contains a list of
elements, each one of which goes toward a separate crime.” Mathis, 136 S. Ct. at
2257.
Here, Mr. Pam argues § 30-3-8(B) sets forth a single, indivisible set of
elements. Section 30-3-8(B) provides:
21
Shooting at or from a motor vehicle consists of willfully discharging a
firearm at or from a motor vehicle with reckless disregard for the person
of another. Whoever commits shooting at or from a motor vehicle that
does not result in great bodily harm to another person is guilty of a
fourth degree felony. Whoever commits shooting at or from a motor
vehicle that results in injury to another person is guilty of a third degree
felony. Whoever commits shooting at or from a motor vehicle that
results in great bodily harm to another person is guilty of a second
degree felony.
N.M. Stat. Ann. § 30-3-8(B). Employing the tools identified by the Supreme Court,
we conclude § 30-3-8(B) is divisible because it lists alternative elements that create
three separate crimes.
First, on its face, § 30-3-8(B) describes three alternative crimes that carry
varying punishments based on the existence and degree of a resulting injury to
another person. Because the statutory alternatives carry different punishments, they
must be elements. Mathis, 136 S. Ct. at 2256.
Second, while we are not aware of any New Mexico caselaw definitively
resolving this issue, the New Mexico Uniform Jury Instructions, which are
mandatory and presumptively correct when adopted by the New Mexico Supreme
Court, United States v. Maldonado-Palma, 839 F.3d 1244, 1249 (10th Cir. 2016),
provide additional support for the conclusion that § 30-3-8(B) is divisible.11 In setting
out the “essential elements” for violations of § 30-3-8(B), the New Mexico Uniform
Jury Instructions include three separate and distinct instructions depending on
11
“In cases . . . where the defendant pled guilty and no jury instructions were
given, the state’s uniform jury instructions can provide insight into the
means/elements question.” United States v. Titties, 852 F.3d 1257, 1270 n.15 (10th
Cir. 2017).
22
whether the violation resulted in no injury, injury, or great bodily harm. See N.M.
U.J.I. 14-342; id. at 14-343; id. at 14-344. For example, the instructions indicate that
to establish a violation of § 30-3-8(B) where there was no injury, the state must
“prove . . . beyond a reasonable doubt each of the following elements of the crime:”
1. “The defendant willfully shot a firearm [at] [from] a motor vehicle with
reckless disregard for another person;”12 and
2. “This happened in New Mexico on or about the ___ day of _____, ____.”13
N.M. U.J.I. 14-342. But to prove a violation of § 30-3-8(B) that resulted in injury to
another, the state must prove the additional element that: “The defendant caused
injury to _____ (name of victim).” Id. at 14-343. Similarly, for violations of the
statute that resulted in great bodily harm, the state must prove that: “The shooting
caused great bodily harm to _____ (name of victim).” Id. at 14-344.
Third, the charging instruments in Mr. Pam’s two § 30-3-8(B) convictions also
suggest the statute is divisible.14 In August 1997, Mr. Pam was charged, in part, as
follows:
12
Neither party addresses whether § 30-3-8(B) is further divisible on the basis
of the alternative phrases “at” a motor vehicle or “from” a motor vehicle. We decline
to reach this issue because the parties’ arguments do not rely on this distinction and
resolution of the case does not require it. See Titties, 852 F.3d at 1270 n.14.
13
The three relevant jury instructions include an optional element that “may be
given if there is an issue as to whether or not the defendant was a law enforcement
officer engaged in the lawful [performance] of duty.” N.M. U.J.I. 14-342; id. at
14-343; id. at 14-344. We omit this element because there is no indication Mr. Pam
was a law enforcement officer at the time of his convictions.
14
This examination of the charging documents is different from the modified
categorical approach. “Unlike the modified categorical approach, which courts use to
23
Count 4: Shooting at or from a motor vehicle (great bodily harm).
That, on or about the 23rd day of June, 1996, in Bernalillo County, New
Mexico, the defendant did willfully discharge a firearm at a motor
vehicle with reckless disregard for the safety of another, causing great
bodily harm to Augusto Rodriquez Perez, contrary to Section 30-3-8,
NMSA 1978.
By contrast, the indictment filed against Mr. Pam in September 1997 charged as
follows:
Count 1: Shooting at or from a motor vehicle (no injury).
That, on or about the 4th day of August, 1997, in Bernalillo County,
New Mexico, the defendant did willfully discharge a firearm from a
motor vehicle with reckless disregard for the safety of another, contrary
to section 30-3-8, NMSA 1978.
Based on our analysis of the text, the New Mexico Uniform Jury Instructions, and the
record evidence it is apparent that § 30-3-8(B) establishes three alternative crimes
based on the degree of injury to another person, if any, resulting from a defendant’s
willful discharge of a firearm at or from a motor vehicle.
Because § 30-3-8(B) is divisible, we may examine documents other than the
statute itself to determine the specific offenses and accompanying elements that
underlie Mr. Pam’s § 30-3-8(B) convictions. Mathis, 136 S. Ct. at 2249. As is evident
from the foregoing analysis, the charging instruments indicate Mr. Pam was first
identify the particular elements in a divisible statute that underlie a defendant’s
conviction, this look at the record addresses a threshold issue: whether the statute is
divisible.” Titties, 852 F.3d at 1268 n.10. This examination “is for the sole and
limited purpose of determining whether the listed items are elements of the offense.”
Mathis v. United States, 136 S. Ct. 2243, 2256–57 (alterations and internal quotation
marks omitted). “Only if the answer is yes can the court make further use of the
materials” when applying the modified categorical approach. Id. at 2257.
24
charged with and later convicted of violating § 30-3-8(B) for discharging a firearm at
a motor vehicle resulting in great bodily harm, a second degree felony. Shortly
thereafter, Mr. Pam was convicted of violating § 30-3-8(B) for discharging a firearm
from a motor vehicle that did not result in injury, a fourth degree felony. Although
Mr. Pam’s § 30-3-8(B) convictions are distinct, in that one includes the element of
great bodily harm to another while the other does not, we analyze the offenses
simultaneously as that distinction does not inform or alter our analysis.
Having identified the relevant crimes of conviction and their associated
elements through use of the modified categorical approach, we may “‘do what the
categorical approach demands’ and compare those elements to the ACCA definition”
of a violent felony. Titties, 852 F.3d at 1266 (quoting Descamps, 133 S. Ct. at 2281).
Accordingly, we examine whether willfully discharging a firearm at or from a motor
vehicle with reckless disregard for the person of another—which requires a finding
that the defendant “knew that his conduct created a substantial and foreseeable risk,
that he disregarded that risk[,] and that he was wholly indifferent to the consequences
of his conduct and to the welfare and safety of others,” N.M. U.J.I. 14-1704; see id.
at 14-342 n.3—“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). “This
inquiry requires application of both federal law and [New Mexico] state law,” as
“[f]ederal law defines the meaning of the [ACCA’s elements clause]” while “state
law defines the substantive elements of the crime of conviction.” See Harris, 844
F.3d at 1264.
25
The government contends that any violation of § 30-3-8(B) necessarily
requires the threatened use of force against another person. This is because, the
government argues, it is not possible to willfully discharge a firearm at or from a
motor vehicle in a manner that creates a substantial and foreseeable risk to another
person without threatening the use of force against another person. To support this
argument, the government maintains that § 30-3-8(B) is similar to the Texas statute
prohibiting the discharge of a firearm at or in the direction of one or more
individuals, which we found constitutes a violent felony under the elements clause of
the ACCA in United States v. Hernandez, 568 F.3d 827, 829–30 (10th Cir. 2009).
According to the government, § 30-3-8(B) “creates a de facto requirement of
proximity to the path of the bullet” and “threatens an injury resulting from physical
force,” making it like the Texas statute.
In contrast, Mr. Pam asserts two reasons why § 30-3-8(B) is not a violent
felony under the ACCA’s elements clause. First, he contends the reckless disregard
element of § 30-3-8(B) removes it from coverage under the ACCA because
recklessness is insufficient to satisfy the “use of force” provision of the elements
clause. Second, Mr. Pam argues that § 30-3-8(B) does not require force to be used,
attempted, or threatened against the person of another; rather, it merely requires
force to be directed at or from a motor vehicle. We reject each of Mr. Pam’s
contentions in turn, and hold that the offense of willfully shooting at or from a motor
vehicle with reckless disregard for the person of another—which requires that the
defendant knew of the substantial and foreseeable risk of injury to another created by
26
his conduct and that he acted with disregard and indifference to the consequences—
whether resulting in no injury or great bodily harm, constitutes a violent felony under
the ACCA.
As we recently explained in United States v. Hammons, --- F.3d ---, 2017 WL
2884044, at *2 (10th Cir. July 7, 2017), “[t]he mental state required to commit a
predicate offense bears on our determination of whether that offense qualifies as a
violent felony under the ACCA.” In United States v. Duran, 696 F.3d 1089, 1095
(10th Cir. 2012), and United States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir.
2008), we held a mens rea of recklessness was insufficient to satisfy the physical-
force requirements of the “crime of violence” definitions found in U.S.S.G.
§§ 4B1.2(a) and 2L1.2. Relying on these decisions, Mr. Pam argues § 30-3-8(B)
cannot satisfy the similarly-phrased provision in the ACCA because the statute may
be violated with a showing of recklessness. But the Supreme Court’s recent decision
in Voisine v. United States leads us to conclude otherwise. 136 S. Ct. 2272 (2016).15
In Voisine, the Supreme Court examined whether “misdemeanor assault
convictions for reckless (as contrasted to knowing or intentional) conduct,” id. at
2276, may qualify as misdemeanor crimes of domestic violence under 18 U.S.C.
§ 922(g)(9), which are defined in part as offenses that have “as an element, the use or
attempted use of physical force,” 18 U.S.C. § 921(a)(33)(A)(ii). In interpreting this
15
In reaching our decision, we need not address whether the Supreme Court’s
discussion in Voisine v. United States, 136 S. Ct. 2272 (2016), abrogated our
decisions in United States v. Duran, 696 F.3d 1089 (10th Cir. 2012), and United
States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir. 2008). This is because Duran
and Zuniga-Soto did not involve construction of the ACCA’s elements clause.
27
provision, the Supreme Court reasoned that the “word [‘use’] is indifferent as to
whether the actor has the mental state of intention, knowledge, or recklessness with
respect to the harmful consequences of his volitional conduct,” and that it “does not
exclude . . . an act of force carried out in conscious disregard of its substantial risk of
causing harm.” Voisine, 136 S. Ct. at 2279. The Supreme Court also “clarified that
the categorical inquiry” of whether a statute has the use of physical force as an
element “focuses on whether the force contemplated by the predicate statute is
‘volitional’ or instead ‘involuntary[,]’ [and that] it makes no difference whether the
person applying the force had the specific intention of causing harm or instead
merely acted recklessly.” Hammons, --- F.3d at ---, 2017 WL 2884044 at *3 (quoting
Voisine, 136 S. Ct. at 2279); see also United States v. Mendez-Henriquez, 847 F.3d
214, 222 (5th Cir. 2017) (noting “Voisine holds ‘use’ separates volitional acts from
involuntary motion; not recklessness from intention”).
Although the Supreme Court in Voisine analyzed § 921(a)(33)(A)(ii) and not
the elements clause of the ACCA, we have already applied the Voisine Court’s
reasoning in the ACCA context. See Hammons, --- F.3d at ---, 2017 WL 2884044 at
*3.16 Applying that same reasoning again here leads us to the conclusion that a statute
requiring proof only that the defendant acted willfully and with reckless disregard for
16
The First Circuit’s recent decision in Bennett v. United States, --- F.3d ---,
2017 WL 2857620, at *15–20 (1st Cir. 2017), raises questions as to whether the
Supreme Court’s reasoning in Voisine should be extended to the ACCA. However,
absent en banc review or an intervening Supreme Court decision we are bound by our
own recent decision extending Voisine’s reasoning to the ACCA in United States v.
Hammons, --- F.3d ---, 2017 WL 2884044, at *2 (10th Cir. July 7, 2017).
28
the risk posed by that act to another person may categorically involve the use of
physical force. Accordingly, § 30-3-8(B)’s element of recklessness does not bar it
from constituting a violent felony under the elements clause of the ACCA,
particularly as § 30-3-8(B) requires the willful discharge of a firearm, which requires
“proof that the person acted intentionally in the sense that he was aware of what he
was doing,” State v. Sheets, 610 P.2d 760, 770 (N.M. App. 1980), as well as
knowledge that his conduct created a substantial foreseeable risk and that he was
wholly indifferent to the welfare and safety of others, see N.M. U.J.I. 14-1704; id. at
14-342 n.3.
Mr. Pam next asserts that § 30-3-8(B) does not constitute a violent felony
under the elements clause of the ACCA because it does not require force to be
directed against the person of another.17 In support of this argument, Mr. Pam
analogizes § 30-3-8(B) to a Kansas statute prohibiting the criminal discharge of a
firearm at an occupied building, dwelling, or motor vehicle, which we determined did
not qualify as a violent felony under the elements clause of the ACCA because it
“requires force against a building or vehicle, but not against the person inside, as [the
elements clause] requires.” United States v. Ford, 613 F.3d 1263, 1271 (10th Cir.
2010). In addition, Mr. Pam relies on the position taken by the government in Ortega
v. United States, No. 1:16-cv-00138-JAP-KK (D.N.M. Feb. 26, 2016), in which it
17
The parties appear to agree that discharging a firearm involves the type of
“violent force—that is, force capable of causing physical pain or injury to another
person,”—contemplated by the elements clause. Johnson v. United States, 559 U.S.
133, 140 (2010).
29
conceded that a § 30-3-8(B) conviction for shooting at a motor vehicle with reckless
disregard for the person of another “does not qualify as a violent felony under the
[elements clause] of the ACCA” because it does “not necessarily require that the
force be used, attempted, or [threatened] ‘against the person of another.’”18
To be sure, the plain language of § 30-3-8(B) is broad. Unlike the Texas
statute at issue in Hernandez, § 30-3-8(B) does not expressly require force to be
directed at or in the direction of another person. Rather, the statute does not require
force to be directed against any object for violations based on shooting from a motor
vehicle, and when prohibiting force directed at something, it is force directed “at . . .
a motor vehicle.” N.M. Stat. Ann. § 30-3-8(B). Nevertheless, the government
contends that because § 30-3-8(B) requires a defendant to knowingly create a
substantial and foreseeable risk to the welfare and safety of others, it creates a de
facto requirement of proximity to the bullet—yielding the same essential results as
the statute in Hernandez. But we must look to the elements, not the results, of a
statute to determine if it constitutes a violent felony under the ACCA. By its plain
terms the statute at issue here encompasses a wider range of conduct than that
prohibited in Hernandez. This is because it appears to criminalize not only situations
where a defendant shoots at, near, or in the proximity of another person, but also
18
Without providing any substantive analysis, the magistrate judge in Ortega
v. United States agreed with the government’s positions and recommended that the
defendant be resentenced in light of Johnson. No. 1:16-cv-00138-JAP-KK (D.N.M.
Feb. 26, 2016). The district court accepted the magistrate judge’s recommendation
without any comment.
30
situations where the intended target is property, or where there is no intended target
at all, if in doing so the shooter is aware of but disregards the risk to another.
Despite the broad language of § 30-3-8(B), its application is restricted by the
meaning given to it by New Mexico courts and, for purposes of determining whether
it constitutes a predicate offense under the ACCA, we are limited to considering
situations “in which there is a ‘realistic probability, not a theoretical possibility’
[that] the state statute would apply.” United States v. Harris, 844 F.3d 1260, 1264
(10th Cir. 2017). In expressly rejecting its previous holding that § 30-3-8(B) was
“designed to protect the public from reckless shooting into a vehicle and the possible
property damage and bodily injury that may result,” State v. Gonzales, 824 P.2d
1023, 1027 (N.M. 1992), overruled by State v. Montoya, 306 P.3d 426 (N.M. 2013),
the Supreme Court of New Mexico recently clarified that § 30-3-8(B) is “intended to
protect against threats to personal safety, and not to threats to property,” and noted
this interpretation is supported by the statute’s varying penalty gradations “based on
differing degrees of potential or actual personal harm to a human victim,” Montoya,
306 P.3d at 436, 437. This understanding of the New Mexico Legislature’s intent
with respect to § 30-3-8(B) is also reflected in State v. Torres, No. 31,567, 2013 WL
4515903, at *2 (N.M. App. Feb. 11, 2013) (unpublished), where the New Mexico
Court of Appeals held that “[b]ecause the mandatory [uniform jury instruction]
definition of reckless disregard makes clear that the substantial and foreseeable risk
is to the ‘welfare and safety’ of others, it indicates that the risk of harm that is
encompassed by [§ 30-3-8(B)] is the risk to the physical person of another.”
31
Moreover, the New Mexico Supreme Court has described § 30-3-8(B) as “an elevated
form of aggravated battery,” State v. Tafoya, 285 P.3d 604, 614 (N.M. 2012), and
noted that “at its core, Section 30-3-8 is one of a group of statutes that proscribe
assault and battery,” State v. Marquez, 376 P.3d 815, 822 (N.M. 2016).
These decisions provide controlling declarations that application of
§ 30-3-8(B) is limited to situations involving the willful discharge of a firearm by the
defendant coupled with knowledge that in doing so he is creating a substantial and
foreseeable risk to the safety and welfare of the person of another. See N.M. U.J.I.
14-342. Thus, in contrast to the Kansas statute analyzed in Ford, which merely
requires force be used against an occupied building or vehicle without any risk of
harm to the person inside—thereby making “the requisite person . . . one step
removed”—§ 30-3-8(B)’s requirement of knowingly creating a substantial and
foreseeable risk to the welfare and safety of another person puts “the requisite
person” at the forefront—necessarily requiring a person to have some level of
proximity to the bullet and the defendant to know of the risk created by that
proximity by the criminal defendant. Ford, 613 F.3d at 1271. It is therefore not
possible to willfully discharge a firearm in the manner proscribed by § 30-3-8(B)
without at least attempting or threatening the use of physical force against the person
of another. See United States v. Mendez-Henriquez, 847 F.3d 214, 222–25 (5th Cir.
2017) (concluding volitionally shooting at an occupied motor vehicle, even when no
one is targeted, at the very least has as a subsumed element the threatened use of
force against the person of another).
32
This conclusion is supported by our recent decision in United States v.
Hammons, --- F.3d ---, 2017 WL 2884044, at *2–4 (10th Cir. July 7, 2017). There, a
panel of this court held that Oklahoma’s drive-by shooting statute, Okla. Stat. tit. 21,
§ 652(B), qualifies as a violent felony under the ACCA’s elements clause. The
Oklahoma statute at issue in Hammons provides:
Every person who uses any vehicle to facilitate the intentional discharge
of any kind of firearm, crossbow or other weapon in conscious disregard
for the safety of any other person or persons shall upon conviction be
punished . . . .
Okla. Stat. tit. 21, § 652(B) (1992). Although the Oklahoma statute, like § 30-3-8(B),
does not contain a requirement that the discharge of the firearm be directed at or in
the direction of another person, let alone at any object in particular, we held that the
statute unquestionably requires that physical force be employed “against the person
of another” as required by 18 U.S.C. § 924(e)(2)(B)(i). We reached this conclusion
because “[t]he Oklahoma Court of Criminal Appeals—the court of last resort for state
criminal cases—has held that § 652(B) is ‘indisputably a crime against the person.’”
Hammons, --- F.3d at ---, 2017 WL 2884044 at *2 n.3 (quoting Burleson v. Saffle, 46
P.3d 150, 152 (Okla. Crim. App. 2002)). In Burleson, the Oklahoma Court of
Criminal Appeals explained that
[d]rive-by shooting, like shooting with intent to kill or assault and
battery with a deadly weapon, is indisputably a crime against the
person. The Legislature intended to stop people from using vehicles to
aid them in shooting other people, and the statute’s focus is on behavior
which aids the intentional shooting.
33
Burleson, 46 P.3d at 152. The New Mexico Supreme Court has made similar
pronouncements regarding § 30-3-8(B)—New Mexico’s drive-by-shooting statute—
noting that the statute is intended to protect against threats to personal safety, rather
than threats to property. See Montoya, 306 P.3d at 436–37.
Finally, because of the New Mexico courts’ construction of the statute, we find
it more theoretical than realistic that § 30-3-8(B) would be applied to conduct not
involving the use, attempted use, or threatened use of force against the person of
another. See Harris, 844 F.3d at 1270. Mr. Pam has done nothing to dissuade us of
this conclusion. He points to no case, including his own, in which New Mexico has
applied § 30-3-8(B) to circumstances not involving the use, attempted use, or
threatened use of force against the person of another. See Gonzales v. Duenas-
Alvarez, 549 U.S. 183, 193 (2007) (holding that to meet the realistic probability
standard, a defendant “must at least point to his own case or other cases in which the
state courts in fact did apply the statute in the . . . manner for which he argues”). And
our own review of New Mexico cases has failed to identify any. As a result, while we
recognize the existence of hypothetical scenarios that could arguably support a
conviction under § 30-3-8(B) without implicating the use, attempted use, or
threatened use of force against the person of another, given the lack of precedent
supporting such hypotheticals there is not a realistic probability that New Mexico
would punish such conduct under § 30-3-8(B). See United States v. Taylor, 630 F.3d
629, 634 (7th Cir. 2010) (“In applying the categorical approach, we are concerned
with the ordinary case, not fringe possibilities.”).
34
Under New Mexico law, shooting at or from a motor vehicle with reckless
disregard for the person of another, whether resulting in no injury or great bodily
harm, has as an element the use, attempted use, or threatened use of physical force
against the person of another. Mr. Pam therefore has three qualifying felony
convictions under the ACCA, making his 180-month sentence lawful and providing
an alternative basis for affirming the district court’s dismissal of Mr. Pam’s § 2255
motion.
IV. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s dismissal of
Mr. Pam’s § 2255 motion.
35