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Rodella takes another legal shot at his sentence

SANTA FE, N.M. — The U.S. Supreme Court may have given former Rio Arriba County Sheriff Tommy Rodella a get-out-of-jail pass.

If Rodella’s new lawyer is successful in arguing that a June decision by the high court applies to the ex-sheriff’s case, he could be freed from his federal prison cell in Texas, roughly five years ahead of schedule.

Former Rio Arriba County Sheriff Tommy Rodella leaves the federal courthouse in Albuquerque after an August 2014 hearing on charges against him that eventually resulted in two convictions and a prison sentence of more than 10 years. (Jim Thompson/Albuquerque Journal)

In January 2015, Rodella was sentenced to 10 years and one month behind bars for convictions on two federal counts related to a road rage incident in which he allegedly brandished a gun while roughing up a driver on a Sunday afternoon.

Rodella got 37 months for violating the victim’s civil rights by subjecting him to an unreasonable seizure while acting under color of law, in a case brought by the U.S. Attorney’s Office in Albuquerque.

Rodella – then the sheriff, but not in uniform and while using his personal vehicle – allegedly tailgated the other driver and then chased him down. The driver said he had no idea his pursuer was the sheriff.

Rodella and his son are said to have eventually pulled the 26-year-old driver from his car, Rodella with gun in hand. The driver said he thought he was going to die. In the end, the sheriff shoved his badge into the driver’s face while shouting, “Here’s my badge, mother(expletive),” according to the driver.

Three other motorists testified at trial of threatening behavior by Rodella during traffic stops.

But most of Rodella’s prison time – 84 months, or seven years – wasn’t for the civil rights violation or roughing up anyone. Instead, that was tacked on for his second conviction, on a count of brandishing a firearm during a crime of violence, known as a firearms enhancement.

Rodella has maintained he was singled out for federal prosecution because he had angered the U.S. Attorney’s Office by refusing to deputize U.S. Forest Service officers to enforce laws in Rio Arriba County, an offshoot of legal battles between the federal government and heirs of Spanish and Mexican land grants.

Now, the Supreme Court – in a 5-4 vote on a robbery case out of Texas, with conservative Justice Neil Gorsuch joining the court’s liberal wing – has struck down as “unconstitutionally vague” the federal firearms statute that added seven years to Rodella’s prison sentence.

Previously, the now-defunct statute made it an additional crime to use a firearm during “a crime of violence,” which was defined in part as any offense that “by its nature, involve(d) a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

“A vague law is no law at all,” Gorsuch wrote for the court majority in the case, U.S. v. Davis.

For the dissenting justices, Justice Brett Kavanaugh wrote that the 30-year-old firearms statute had been applied successfully in thousands of cases and striking it down would probably result in the release of some inmates.

This month, a lawyer – also from Texas – has taken on representing Rodella and has filed notice that she will bring the Supreme Court’s June ruling into play.

One of her filings says she will demonstrate that under U.S. v. Davis, Rodella is entitled to have his firearms conviction overturned, reducing his sentence to just the 37 months he received for his other conviction, the civil rights violation.

Rodella “has served over 57 months, not counting the time served prior to his conviction becoming final,” attorney Susan J. Clouthier of Houston wrote, and therefore the ex-sheriff “is currently serving time for an Unconstitutional sentence in violation of the United States Supreme Court law in U.S. v Davis.”

Clouthier is also asking for quick consideration of her motion, so that Rodella “can be released on Community Supervision as soon as possible.”

Wyoming case

Clouthier has written in another filing that the 10th Circuit Court of Appeals, based in Denver, which considers appeals from New Mexico federal courts, has already vacated the firearms enhancement conviction of a former Wyoming lawman who faced the same counts as Rodella did.

In that bizarre 2009 case, a state trooper pleaded guilty to a civil rights violation for pulling over and kidnapping a truck driver with plans to kill him using a staged, fake accident as part of an insurance fraud scheme. Federal prosecutors said the trooper gave up on the plan only after realizing that the trucker’s rig was equipped with GPS that would have shown the truck had been stationary, not traveling, before any accident involving the trooper’s car.

Clouthier said that in July, prosecutors supported vacating the former officer’s accompanying firearms enhancement conviction in light of the Supreme Court’s U.S. v. Davis ruling the month before.

Clouthier, who couldn’t be reached for comment last week, is also arguing that Rodella hasn’t missed any deadlines in raising the same issue. She said that because the Supreme Court “recognized a new right retroactively applicable” in cases like Rodella’s, he had a year from June 24, when the Supreme Court issued the ruling, to do so.

In March, Rodella, acting as his own attorney, but with the help of a “jailhouse lawyer,” filed a motion seeking to have his convictions overturned. He argued that he was “deprived of effective assistance of counsel” because his attorney, Robert Gorence of Albuquerque, failed to mount an adequate defense at trial. Gorence had no comment on the filing.

Clouthier’s recent filings seek to amend Rodella’s March motion.

The U.S. Attorney’s Office has responded with a filing that does not oppose Clouthier’s request to amend the March filing but objects to accelerated consideration of Clouthier’s motions on behalf of Rodella “solely on grounds that the Court is in the best position to manage its own docket.”

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