United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE
MATTER is before me on Defendant Marcos Sanchez's Motion
to Vacate, Set Aside or Correct Sentence Under 28 U.S.C.
[§] 2255 (and Johnson v. United States), filed
October 23, 2015 [CR Doc. 104; CV Doc. 1], and his Amended
Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255,
filed August 8, 2016 [CR Doc. 112; CV Doc. 7]. Mr. Sanchez
filed a supplement to his amended motion on October 3, 2016.
[CR Doc. 117; CV Doc. 12]. The United States responded on
October 10, 2016. [CR Doc. 118; CV Doc. 13]. Mr. Sanchez
replied on October 20, 2016. [CR Doc. 121; CV Doc. 16]. The
Honorable James O. Browning, United States District Judge,
referred this matter to me for analysis and a recommended
disposition. [CR Doc. 106; CV Doc. 2]. Having considered the
briefing, the relevant portions of the underlying criminal
record, the relevant authorities, and being otherwise fully
advised in the premises, I find that Mr. Sanchez's prior
convictions for violating NMSA 1978, § 30-16-3(A)
qualify as violent felonies under the enumerated clause of
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B). Because I find that Mr. Sanchez was not
sentenced under the residual clause of § 924(e)(2)(B),
his sentence is not unconstitutional and he is not entitled
to re-sentencing pursuant to Johnson v. United
States and Welch v. United States. His motion
should be denied.
August 25, 2004, Mr. Sanchez was charged with one count of
being a felon in possession of a firearm, 18 U.S.C.
§§ 922(g)(1), 924(a)(2). Presentence Report
(“PSR”) at 2. On July 17, 2006, he pleaded guilty
to the offense. Id. United States Probation and
Pretrial Services submitted his PSR to the Court on October
3, 2006. Id. at 1. The PSR provided that Mr. Sanchez
qualified as an armed career criminal under the ACCA because
he had three prior violent felony convictions, all for
residential burglary in New Mexico. Id. at 7, 8,
10-11. With the Armed Career Criminal enhancement, Mr.
Sanchez's offense level was 33. Id. at 7. Based on
a downward adjustment for acceptance of responsibility, his
total offense level was 30, with a criminal history category
of VI and a guideline imprisonment range of 180-210 months.
Id. at 7, 21. On November 10, 2006, Judge Browning
sentenced Mr. Sanchez to 180 months' imprisonment. [CR
Doc. 91] at 2.
Sanchez appealed on grounds unrelated to his sentence. The
Tenth Circuit Court of Appeals affirmed his conviction on
March 17, 2008. [CR Doc. 100-1]. The Supreme Court denied Mr.
Sanchez's petition for a writ of certiorari on October 6,
2008. [CR Doc. 102-1]. The instant case is his first motion
under § 2255.
under § 2255 and Johnson v. United States
to 28 U.S.C. § 2255(a), a “prisoner in
custody” pursuant to a federal conviction may
“move the court” “to vacate, set aside or
correct the sentence” if it “was imposed in
violation of the Constitution or laws of the United
Johnson v. United States, 135 S.Ct. 2551, 2557
(2015), the Supreme Court held that the so-called residual
clause of the definition of “violent felony” in
the ACCA was unconstitutionally vague. The ACCA defined
“violent felony” as follows:
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; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
18 U.S.C. § 924(e)(2)(B) (emphasis added). The closing
words of this definition, italicized above, have come to be
known as the “residual clause.”
Court explained that the residual clause left “grave
uncertainty” about “deciding what kind of conduct
the ‘ordinary case' of a crime involves.”
Johnson, 135 S.Ct. at 2557. That is, the residual
clause “denie[d] fair notice to defendants and
invite[d] arbitrary enforcement by judges” because it
“tie[d] the judicial assessment of risk to a judicially
imagined ‘ordinary case' of a crime, not to
real-world facts or statutory elements.” Id.
Second, the ACCA's residual clause left
“uncertainty about how much risk it takes for a crime
to qualify as a violent felony.” Id. at 2558.
By combining these two indeterminate inquiries, the Court
held, “the residual clause produces more
unpredictability and arbitrariness than the Due Process
Clause tolerates.” Id. On that ground it held
the residual clause void for vagueness. Id.
thereafter, the Court determined that the ruling in
Johnson was substantive (as opposed to procedural)
and, therefore, had “retroactive effect in cases on
collateral review.” Welch v. United States,
136 S.Ct. 1257, 1268 (2016). Accordingly, Welch
opened the door for individuals sentenced under the residual
clause of the ACCA's violent-felony definition to move to
vacate their sentences as unconstitutional under § 2255.
Sanchez's convictions for New Mexico residential burglary
qualify as enumerated violent felonies.
Sanchez was designated as an armed career criminal-and thus,
his sentence was enhanced-based on three prior felony
convictions for residential burglary in New Mexico, NMSA
1978, § 30-16-3(A). PSR at 7, 8, 10-11; [Doc.
at 2-3. This designation was based on a determination that
his burglary convictions qualified as “violent
felon[ies], ” as that term is defined in §
924(e)(2)(B) of the ACCA. PSR at 21; [Doc. 7] at 2-3.
Sanchez argues that his burglary convictions could have
qualified as violent felonies (and, thus, counted toward his
armed career criminal designation) only under the
now-invalidated residual clause, entitling him to be
resentenced. [Doc. 7] at 3. The United States argues that the
residential burglary convictions qualify as violent felonies
even absent the unconstitutionally vague residual clause.
[Doc. 13] at 2. The government argues that Mr. Sanchez's
residential burglary convictions qualify as violent felonies
under the ACCA's so-called “enumerated clause,
” which designates certain specific crimes, including
burglary, as violent felonies. Id. Therefore, the
United States argues, Johnson does not apply to this
case, and Mr. Sanchez should not be resentenced. I agree with
the United States. I find that Mr. Sanchez's prior
convictions for New Mexico residential burglary qualify as
violent felonies under the enumerated clause of §
924(e)(2)(B), and not the residual clause, because New Mexico
residential burglary is substantially similar to generic
burglary. He is not entitled to resentencing.
enumerated clause of § 924(e)(2)(B)(ii) provides that an
underlying felony conviction is a “violent
felony” if it “is burglary, arson, or extortion,
[or] involves use of explosives.” To determine whether
a past conviction qualifies as one of the offenses enumerated
in § 924(e)(2)(B)(ii), courts compare the elements of
the crime of conviction with the elements of the
“generic” version of the listed offense-in other
words, “the offense as commonly understood.”
Descamps v. United States, 133 S.Ct. 2276, 2281
(2013). A prior conviction qualifies as an enumerated ACCA
predicate offense only if its elements are the same as, or
narrower than, those of the generic offense. Id.;
Mathis v. United States, 136 S.Ct. 2243, 2247
(2016). The definition and scope of the offenses enumerated
in the ACCA's definition of “violent felony”
are questions of federal law. See United States v.
Rivera-Oros, 590 F.3d 1123, 1126 (10th Cir. 2009).
Mexico burglary, § 30-16-3, is divisible into subsection
A (residential burglary) and subsection B (non-residential
burglary), and Mr. Sanchez was convicted under subsection A.
determine whether a prior conviction is sufficiently similar
to a generic offense, courts generally apply the so-called
“categorical approach.” That is, courts consider
only whether the elements of the crime of conviction
sufficiently match the elements of the generic offense, while
ignoring the particular facts of the case. Mathis,
136 S.Ct. at 2248 (citing Taylor v. United States,
495 U.S. 575, 600-01 (1990)). If the underlying statute of
conviction “sweeps more broadly than the generic crime,
” the prior conviction cannot qualify as an ACCA