Albuquerque Journal

Rodella takes another shot at his sentence

High court ruling in firearms case could cut ex-sheriff’s time

- BY MARK OSWALD JOURNAL NORTH

The U.S. Supreme Court may have given former Rio Arriba County Sheriff Tommy Rodella a get-out-ofjail 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 Texarkana, Texas, roughly five years ahead of schedule.

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, 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 about 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 nowdefunct 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.

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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Tommy Rodella

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