United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
Proposed Findings and Recommended Disposition (PFRD) (Doc.
No. 184),  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) 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.
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.
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.
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
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).
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
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.
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 ...