United States v. Harris

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         In the Proposed Findings and Recommended Disposition (PFRD) (Doc. No. 184), ^[1] Magistrate Judge William P. Lynch recommended granting Defendant Arthur Harris' (Defendant) original pro se “Motion to Seek Time-Barred and Procedurally Defaulted Habeas Petition Pursuant to 28 U.S.C. § 2255 ‘Motion to Vacate, Set Aside, or Correct a Sentence': Due to the Fifth and Sixth Amendment Violations that Renders (sic) Petitioner Actually Innocent of the Imposed Sentence” (Doc. No. 168) (Section 2255 Motion)^[2] asking for resentencing under Johnson v. United States, 576 U.S. __, 135 S.Ct. 2551 (2015). The United States' objects to the PFRD (Doc. No. 185), and Defendant responded to the United States' objections (Doc. No. 186). The United States objects to the PFRD's recommendation that the Court find that the commercial burglary statute NMSA 1978 § 30-16-3(B) is indivisible under Mathis v. United States, 136 S.Ct. 2243 (2016); and therefore, does not qualify as a violent felony under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The United States also argues, for the first time in its objections, that the Section 2255 Motion is time-barred. After a de novo review, the Court finds the objections to be without merit and will adopt the PFRD. The PFRD thoroughly set forth the factual and legal landscape of this case; however, the Court will summarize that information and will address the objections.

         I. BACKGROUND

         On May 20, 2011, a jury convicted Defendant of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. 922(g)(1). (See Doc. No. 78). The Court adopted the facts in the Presentence Investigation Report (PSR) issued by the United States Probation Office (USPO) on September 19, 2011. The PSR stated that Defendant had been convicted of the following crimes under New Mexico law: (1) on January 14, 1985, residential burglary in violation of NMSA § 30-16-3(A); (2) on May 4, 1987, commercial burglary in violation of NMSA § 30-16-3(B); (3) on April 28, 1994, commercial burglary in violation of NMSA § 30-16-3(B); and (4) on April 28, 1994, assault with a deadly weapon. Based on these convictions, the USPO concluded that Defendant's sentence should be enhanced under the ACCA because he had previously been convicted of three violent felonies. The Court accepted the findings in the PSR and sentenced Defendant to 298 months' incarceration. A judgment of conviction was entered on October 1, 2012. (Doc. No. 128).

         Although an offense under § 922(g)(1) is generally subject to a statutory maximum sentence of ten years, see 18 U.S.C. § 924(a)(2), the ACCA will increase that penalty to a statutory minimum sentence of fifteen years if the offender has three prior convictions for a violent felony, a serious drug offense, or a combination of both, that were committed on different occasions. 18 U.S.C. § 924(e)(1). In his Section 2255 Motion, Defendant asks the Court to vacate his sentence and resentence him without the ACCA enhancement. Defendant argues that his two underlying felony convictions for commercial burglary no longer qualify as violent felonies for purposes of ACCA enhancement.

         II. DISCUSSION

         The ACCA defines a “violent felony” as a crime punishable by imprisonment for more than one year and:

(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) (italics added). Subparagraph (i) is referred to as the “force clause” or “elements clause;” the non-italicized portion of subpart (ii) is known as the “enumerated clause”; and, the italicized portion of subpart (ii) is called the “residual clause.” Johnson, __ U.S. __, 135 S.Ct. 2551, 2556 (2015). See United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017); United States v. Fritts, 841 F.3d 937, 939 (11th Cir. 2016); United States v. Gardner, 823 F.3d 793, 801-02 (4th Cir. 2016). In Johnson, the Supreme Court ruled that the residual clause is unconstitutionally vague, but left the force and enumerated clauses intact. 135 S.Ct. at 2557- 2563. Defendant argues that his commercial burglary convictions no longer qualify as violent felonies under the enumerated clause, the only valid provision of the ACCA applicable to this case.^[3]

         To determine whether a past conviction qualifies as one of the enumerated offenses in 18 U.S.C. § 924(e)(2)(B)(ii), courts compare the statutory elements of the crime of conviction with the elements of the “generic” version of the listed offense-i.e. the offense as commonly understood. See Taylor v. United States, 495 U.S. 575, 598 (1990); United States v. Jimenez, No. 16 CV 661 RB/SMV, ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION (Doc. 20), at 6 (D.N.M. Dec. 23, 2016) (hereinafter Jimenez Order). Under this standard, Defendant's two prior convictions for commercial burglary may qualify as violent felonies under the ACCA only if the statutory elements for this crime fit within the generic version of burglary, which is a crime containing the following elements: “an unlawful or unpriviledged entry into . . . a building or other structure, with intent to commit a crime.” Mathis v. United States, __ U.S. __, 136 S.Ct. 2243, 2248 (2016) (quoting Taylor, 495 U.S. at 598).

         In Mathis, the Supreme Court clarified how courts should determine whether a particular statutory violation falls within the generic version of an enumerated offense. Id. Courts must apply “the categorical approach: They focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case.” Id. Elements, in this context, means “the things the prosecution must prove to sustain a conviction.” Id. For example, if the statutory elements of burglary cover “any more conduct than the generic offense, then it is not an ACCA ‘burglary' - even if the defendant's actual conduct (i.e., the facts of the crime) fits within the generic offense's boundaries.” Id. The central question is whether the statute lists multiple elements disjunctively, thereby creating multiple crimes (i.e., a divisible statute, triggering the modified categorical approach), or whether a statute enumerates various factual means of committing a single element (i.e., an indivisible statute, requiring the categorical approach). Id. at 2249-50. To determine if a statute lists alternative means or elements, courts should look at the plain language of the statute, but state court decisions may assist sentencing courts. If statutory alternatives carry different punishments, then they must be elements (and, thus, the statute is divisible, triggering the modified categorical approach). Id. at 2257 (citation omitted).

         Thus, the Court's analysis will focus on the New Mexico commercial burglary statute. If the statutory elements are the same or narrower than the elements of generic burglary, then the Court may rely on Defendant's convictions for this offense to affirm Defendant's enhanced sentence. However, if commercial burglary under New Mexico law does not qualify as a generic burglary under the enumerated clause, the Court cannot rely on that conviction. Id. at 2557, 2563.

         New Mexico's burglary statute provides that

[b]urglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to ...