United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
LOURDES A. MARTINEZ, UNITED STATES MAGISTRATE JUDGE
THIS MATTER is before the Court on Defendant/Movant's
(hereinafter “Defendant”) § 2255 Motion
[Doc. 1],  filed on June 15, 2016.
Plaintiff/Respondent (hereinafter “the
Government”) filed a response on August 30, 2016
[Doc. 7], and Defendant filed a reply on September
26, 2016 [Doc. 11]. 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. 2].
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-06-842, the
undersigned recommends, for the reasons set forth below, that
Defendant's § 2255 motion [Doc. 1] be
DENIED and that this case be DISMISSED with prejudice.
and Procedural Background
September 9, 2006, pursuant to a Plea Agreement [Cr.Doc.
16], Defendant pled guilty to Count One in his
Indictment [Cr.Doc. 1] charging him with being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e)(1). 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. 1 at 3] and [Doc.
7 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 possession
with intent to distribute cocaine. See [Doc.
1 at 3] and [Doc. 7 at 2]. In addition,
Defendant states that his base offense level under the
Sentencing Guidelines was 24 and was based, in part, on his
prior convictions for residential burglary. See
[Doc. 1 at 2-3]. On December 12, 2006, the presiding
judge imposed a 180-month sentence, with 3 years of
supervised release. See [Cr.Doc. 21 at
§ 2255 motion, Defendant contends that his prior
convictions for residential burglary no longer qualify as
convictions for crimes of violence for purposes of either the
ACCA or the Sentencing Guidelines pursuant to the holding of
Johnson v. United States, 135 S.Ct. 2551 (2015),
and, therefore, cannot be used to enhance his sentence.
[Doc. 1 at 6]. Defendant asks the Court to vacate
his sentence and resentence him without application of the
ACCA. Id. at 9.
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.
§ 2255 motion, Defendant contends that, following the
holding in Johnson, his prior convictions for
residential burglary can only qualify as violent felonies
under the force clause (§ 924(e)(2)(B)(i)) or as
enumerated offenses (§ 924(e)(2)(B)(ii)) under the ACCA.
[Doc. 1 at 7].
contends that these convictions do not fall under the
ACCA's force clause because the statute under which he
was 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. Defendant
also contends that his residential burglary convictions do
not fall under the ACCA's enumerated clause because New
Mexico's burglary statute is broader than the federal,
generic definition because New Mexico burglary applies to