United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
LOURDES A. MARTÍNEZ UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court on Defendant/Movant's
(hereinafter “Defendant”) § 2255 Motion
[Doc. 4],  filed on June 24, 2016.
Plaintiff/Respondent (hereinafter “the
Government”) filed a response on August 9, 2016
[Doc. 8], and Defendant filed a reply on August 19,
2016 [Doc. 9]. On October 14, 2016, this case was
reassigned to the undersigned as the pretrial judge.
[Doc. 12]. On January 25, 2017, United States
District Judge Martha Vázquez referred the claims
raised in this case to the undersigned for proposed findings
and a recommended disposition, and a hearing, if necessary.
[Doc. 15]. Having considered the motion, response,
reply, relevant law, and the record in this case and in
Defendant's underlying criminal case contained in Case
No. CR-12-969, the undersigned recommends, for the reasons
set forth below, that Defendant's § 2255 motion
[Doc. 4] be GRANTED in part and
DENIED in part and that Defendant be
and Procedural Background
December 5, 2012, pursuant to a Plea Agreement [Cr.Doc.
42], Defendant pled guilty to an Indictment [Cr.Doc.
2] charging him with one count of being a felon in
possession of a firearm and ammunition, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2). The parties
state that Defendant was subject to an enhanced sentence
under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e), which mandates a minimum sentence of
180 months (15 years). See [Doc. 4 at 2]
and [Doc. 8 at 2]. The parties state that Defendant
was subject to the ACCA based on two prior convictions for
residential burglary, and one prior conviction for commercial
burglary. See [Doc. 4 at 2] and [Doc.
8 at 2]. Defendant contends that, without the ACCA
designation, he would have been subject to a Sentencing
Guidelines range of 100 to 120 months. See [Doc.
4 at 2]. On April 17, 2013, the judge who was then
presiding in Defendant's criminal case imposed a
180-month sentence, with 3 years of supervised release.
See [Cr.Doc. 53 at 2-3].
§ 2255 motion, Defendant contends that his prior
convictions for residential and commercial burglary no longer
qualify as convictions for crimes of violence pursuant to the
holding of Johnson v. United States, 135 S.Ct. 2551
(2015), and, therefore, cannot be used to enhance his
sentence. [Doc. 4 at 2]. Defendant asks the Court to
vacate his ACCA sentence and resentence him. Id. at
the ACCA, an individual who violates § 922 (g)
(e.g., being a felon in possession of a firearm or
ammunition), and who has “three previous convictions .
. . for a violent felony or a serious drug offense, ”
will receive a mandatory, minimum 15-year sentence. 18 U.S.C.
statute defines the term “violent felony” as:
[A]ny crime punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency involving the
use or carrying of a firearm, knife, or destructive device
that would be punishable by imprisonment for such term if
committed by an adult, 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)(i)-(ii) (emphasis added). The
emphasized clause is referred to as the “residual
clause, ” and in Johnson the Supreme Court
held that the residual clause “denies fair notice to
defendants and invites arbitrary enforcement by judges,
” and, therefore, violates the due process clause of
the Constitution. Johnson, 135 S.Ct. at 2557.
contends that his prior convictions for residential and
commercial burglary no longer qualify as violent felonies
under the residual clause of the ACCA because that clause was
found to be unconstitutional in Johnson. [Doc.
4 at 3]. Defendant further contends that these
convictions do not fall under the ACCA's elements, or
force, clause because the statute under which he was
previously convicted, N.M.S.A. 1978 § 30-16-3, does not
contain as an element the use, attempted use, or threatened
use of physical force against another person. Id. at
4. Finally, Defendant contends that his burglary convictions
do not fall under the ACCA's enumerated clause because
the meanings of “structure” and
“entry” at the time of Defendant's
convictions were broader than federal, generic law regarding
the definitions of those terms. Id. at 4-11.
Defendant contends that the Court should apply the modified
categorical approach (id. at 6), and that the
charging documents for his burglary convictions do not
identify whether he “entered” into a
“structure” in a manner recognized by the
federal, generic definition of burglary, so those convictions
cannot be used to support an ACCA sentence (id. at
response, the Government contends that Defendant's
convictions for residential and commercial burglary qualify
as ACCA-predicate offenses. [Doc. 8 at 5-10]. The
Government contends that the subsection of the burglary
statute under which Defendant was convicted for residential
burglary, N.M.S.A. § 30-16-3(A), “limits the
overbroad statutory alternatives and leaves a conviction
under it narrower than a conviction under generic
burglary.” Id. at 5. In addition, the
Government contends that the subsection of the burglary
statute under which Defendant was convicted for commercial
burglary, N.M.S.A. § 30-16-3(B), “contains
alternative elements and is a divisible statute, which means
the Court may employ the modified categorical approach to
determine which alternative element formed the basis of
[Defendant's] conviction.” Id. ...