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United States v. Tolentino

United States District Court, D. New Mexico

February 17, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
LAWRENCE PAUL TOLENTINO, Defendant/Movant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION [1]

          LOURDES A. MARTINEZ, UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court on Defendant/Movant's (hereinafter “Defendant”) § 2255 Motion [Doc. 1], [2] 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.

         Factual and Procedural Background

         On 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].[3] 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 2-3].

         In his § 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.

         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.

         In his § 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].

         Defendant 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 ...


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