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United States v. Luna

United States District Court, D. New Mexico

February 14, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RICHARD E. LUNA, Defendant/Movant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION[1]

          LOURDES A. MARTÍNEZ UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendant/Movant's (hereinafter “Defendant”) § 2255 Motion [Doc. 4], [2] 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 RESENTENCED.

         Factual and Procedural Background

         On 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].[3] 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].

         In his § 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 11.

         Discussion

         Under 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. § 924(e).

         The 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.

         Defendant 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 9-11).

         In 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. ...


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