Tuesday, August 29, 2017

Collateral-Attack Waiver Does Not Bar Johnson 2255 Motion; NM Offense of Shooting at or from a Motor Vehicle with Reckless Disregard Is a Violent Felony

United States v. Pam, 2017 WL 3481853 (August 15, 2017)(Published, NM): The panel finds that a Rule 11(c)(1)(C) plea agreement to an ACCA mandated sentence which contained a waiver of collateral attack does not prevent it from considering the merits of Pam’s Johnsonbased 28 U.S.C. § 2255 petition. However, when it does, it rules that New Mexico’s shooting at or from a vehicle with reckless disregard of another has as an element the use, attempted use or threatened use of physical force and therefore is a violent felony.

The district court dismissed Pam’s petition because his sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement, not the ACCA, so Johnsondid not apply. The panel disagreed. Using as a guide, Freeman v. United States, 564 U.S. 522 (2011), it wrote that the agreement explicitly used the ACCA to establish the agreed upon 180 month sentence (statutory 120 month maximum became a minimum of 180 months because the ACCA applied). Thus, the binding nature of the agreement did not prevent the panel from evaluating whether Johnson impacted the constitutionality of Pam’s sentence.

The district court also found that the agreement’s collateral attack waiver was enforceable and barred Pam from bringing a Johnson based § 2255 petition. Again, the panel disagreed. It said that Pam agreed to waive a collateral attack only on his “conviction(s).” The waiver did not limit or waive his rights to collaterally challenge his sentence. Because Pam’s petition challenged the constitutionality of his sentence after Johnson, it does not come within the waiver provision.

Analyzing the merits of Pam’s petition, the panel first decides that New Mexico’s shooting at or from a motor vehicle (NMSA 30-3-8(B)) is divisible. This is because the felony levels increase (4th to 2d degree) with the severity of harm and the varying harm caused is an element which distinguishes each degree. Shooting at or from a motor vehicle requires proof that the accused “willfully discharged a firearm . . . with reckless disregard for the person of another.” After United States v. Hammons, 2017 WL 2884044 (10th Cir. July 7, 2017), the panel said that a statute which requires proof only that the accused acted willfully and with reckless disregard for the risk posed to another person will categorically involve the use of physical force. New Mexico case law demonstrates that the statute was intended to protect against threats to personal safety rather than threats to property. Ultimately, the statute’s ostensibly broad language is limited to "situations involving the willful discharge of a firearm by an accused 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." By circumscribing the statute’s elements in this way, the panel was able to find New Mexico’s drive by shooting statute a violent felony.

Note: A holding that an offense with a mens rea of "reckless disregard" nonetheless can be construed as having an element of intentional use of physical force would seem to be contrary to numerous cases holding that crimes that can be committed with a reckless mens rea do not have an element of intentional use of force.