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United States v. Sanchez

United States District Court, D. New Mexico

December 23, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCOS SANCHEZ, Defendant.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE

         THIS 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.

         Background

         On 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.[1] 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.

         Mr. 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.

         Motions under § 2255 and Johnson v. United States

         Pursuant 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 States.”

         In 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 to another.

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.”

         The 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.

         Soon 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.

         Mr. Sanchez's convictions for New Mexico residential burglary qualify as enumerated violent felonies.

         Mr. 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. 7][2] 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.

         Mr. 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.[3] 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.

         The 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).

         New 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.

         To 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 ...


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