United States District Court, D. New Mexico
G. Elsenheimer Richard A. Winterbottom Attorneys for the
P. Martinez Jack Burkhead Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGSISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on the Magistrate Judge's
Proposed Findings and Recommended Disposition, filed December
23, 2016 (CR Doc. 122; CIV Doc. 17)(“PF&RD”).
On the Court's reference, Order of Reference Relating to
Prisoner Cases, filed June 8, 2016 (CR Doc. 106; CIV Doc. 2),
the Honorable Stephan M. Vidmar, United States Magistrate
Judge, recommended denying: (i) Defendant Marcos
Sanchez's Motion to Vacate, Set Aside or Correct Sentence
Under 28 U.S.C. [§] 2255 (and Johnson v. United
States), filed October 23, 2015 (CR Doc. 104; CIV Doc.
1)(“Motion”); and (ii) the Defendant's
Amended Motion to Correct Sentence Pursuant to 28 U.S.C.
§ 2255, filed August 8, 2016 (CR Doc. 112; CIV Doc.
7)(“Amended Motion”). Defendant Marcos Sanchez
objected to the PF&RD on January 25, 2017. See
Mr. Sanchez's Objections to the Magistrate Judge's
Proposed Findings and Recommended Disposition, filed January
25, 2017 (CR Doc. 127; CIV Doc.
22)(“Objections”). Plaintiff United States of
America neither objected to the PF&RD nor responded to
Sanchez' Objections. On de novo review of the portions of
the PF&RD to which Sanchez objects, the Court will: (i)
overrule the objections; (ii) adopt the PF&RD; (iii) deny
Sanchez' Motion; (iv) deny Sanchez' Amended Motion;
and (v) dismiss case No. CIV 15-1188 JB/SMV with prejudice.
August 25, 2004, Sanchez was charged with one count of being
a felon in possession of a firearm, 18 U.S.C. §§
922(g)(1), 924(a)(2). See Presentence Report at 2
(“PSR”). On July 17, 2006, he pled guilty to the
offense. See PSR at 2. The United States Probation
and Pretrial Services (“USPO”) submitted his PSR
to the Court on October 3, 2006. See PSR at 1. The
PSR provides that Sanchez qualifies as an armed career
criminal under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e)(“ACCA”), because he had three prior
violent felony convictions, all for residential burglary in
New Mexico. See PSR at 7, 8 & 10-11. With the
ACCA enhancement, Sanchez' offense level is
See PSR at 7. Based on a downward adjustment for
acceptance of responsibility, his total offense level is 30,
with a criminal history category of VI and a guideline
imprisonment range of 180-210 months. See PSR at 7,
21. On November 10, 2006, the Court sentenced Sanchez to 180
months' imprisonment. See Judgment at 2, filed
November 10, 2006 (CR Doc. 91).
appealed on grounds unrelated to his sentence. The United
States Court of Appeals for the Tenth Circuit affirmed his
conviction on March 17, 2008. United States v.
Sanchez, No. 06-2329 (10th Cir. Mar. 17, 2008), filed
April 9, 2008 (CR Doc. 100-1). The Supreme Court of the
United States of America denied Sanchez' Petition for a
Writ of Certiorari on October 6, 2008. See Letter
from Supreme Court of the United States Regarding Marcos
Sanchez v. United States 1, filed October 10, 2008 (CR
Doc. 102-1). This case is his first motion under § 2255.
Court's reference, Judge Vidmar found that Sanchez'
prior convictions for New Mexico residential burglary, NMSA
1978, § 30-16-3(A), qualified as violent felonies under
the enumerated clause of the ACCA's definition of
“violent felony, ” 18 U.S.C. § 924(e)(2)(B).
Because he concludes that Sanchez' prior convictions
qualified as violent felonies irrespective of the
now-unconstitutional residual clause, Judge Vidmar also
concludes that Sanchez' sentence enhancement was not
unconstitutional and that he was not entitled to resentencing
pursuant to Johnson v. United States and Welch
v. United States, See PFRD at 20. He recommends
that the Court deny Sanchez' Motion and Amended
Motion. See PFRD at 20.
REGARDING MOTIONS UNDER § 2255 AND JOHNSON V.
to 28 U.S.C. § 2255(a), a “prisoner in
custody” pursuant to a federal conviction may
“move the court . . . to vacate, set aside or correct
the sentence” if it “was imposed in violation of
the Constitution or laws of the United States.” In
Johnson v. United States, 135 S.Ct. 2551 (2015), the
Supreme Court held that the ACCA's so-called
“residual clause” of the definition of
“violent felony” is unconstitutionally vague.
See 135 S.Ct. at 125. The ACCA defined
“violent felony” as follows:
Any crime punishable by imprisonment for a term exceeding one
year . . . 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)(emphasis added).. The closing
words of this definition, italicized above, have come to be
known as the “residual clause.”
Supreme Court explained that the residual clause left
“grave uncertainty” about “deciding what
kind of conduct the ‘ordinary case' of a crime
involves . . . .” Johnson v. United States
(quoting United States v. Mayer, 560 F.3d 948, 952
(9th Cir. 2009)(Kozinski, C.J.)(dissenting from denial of
rehearing en banc)). The residual clause “denies fair
notice to defendants and invites arbitrary enforcement by
judges, ” because it “ties the judicial
assessment of risk to a judicially imagined ‘ordinary
case' of a crime, not to real-world facts or statutory
elements.” 135 S.Ct. at 2557 (quoting United States
v. Mayer, 560 F.3d at 952). Second, the ACCA's
residual clause leaves “uncertainty about how much risk
it takes for a crime to qualify as a violent felony.”
Johnson v. United States, 135 S.Ct. at 2558. By
combining these two indeterminate inquiries, the Supreme
Court held, “the residual clause produces more
unpredictability and arbitrariness than the Due Process
Clause tolerates.” Johnson v. United States,
135 S.Ct. at 2558. On that ground, it held the residual
clause void for vagueness. See 135 S.Ct. at 2558.
thereafter, the Supreme Court determined that the ruling in
Johnson is substantive as opposed to procedural and,
therefore, has “retroactive effect in cases on
collateral review.” Welch v. United States,
136 S.Ct. 1257, 1268 (2016). Accordingly, Welch v. United
States opened the door for individuals sentenced under
the residual clause of the ACCA's violent-felony
definition to move to vacate their sentences as
unconstitutional under § 2255.
REGARDING PROPOSED FINDINGS AND RECOMMENDED
no party objects to the Magistrate Judge's proposed
findings and recommended disposition, the Court has, as a
matter of course in the past and in the interests of justice,
reviewed the Magistrate Judge's recommendations. In
Pablo v. Soc. Sec. Admin., No. CIV 11-0132 JB/ACT,
2013 WL 1010401 (D.N.M. Feb. 27, 2013)(Browning, J.), the
plaintiff failed to respond to the Magistrate Judge's
proposed findings and recommended disposition, and thus
waived his right to appeal the recommendations, but the Court
nevertheless conducted a review. The Court generally does
not, however, “review the PF&RD de novo, because
the parties had not objected thereto, but rather review[s]
the recommendations to determine whether they clearly
erroneous, arbitrary, obviously contrary to law, or an abuse
of discretion.” Pablo v. Soc. Sec. Admin.,
2013 WL 1010401, at *4. The Court, thus, does not determine
independently what it would do if the issues had come before
the Court first, but rather adopts the proposed findings and
recommended disposition where “[t]he Court cannot say
that the Magistrate Judge's recommendation . . . is
clearly erroneous, arbitrary, obviously contrary to law, or
an abuse of discretion.” Pablo v. Soc. Sec.
Admin., 2013 WL 1010401, at *4. See Alexandre v.
Astrue, No. CIV 11-0384 JB/SMV, 2013 WL 1010439, at *4
(D.N.M. Feb. 27, 2013)(Browning, J.)(“The Court rather
reviewed the findings and recommendations of the Honorable
Stephan M. Vidmar, United States Magistrate Judge, to
determine if they are clearly erroneous, arbitrary, obviously
contrary to law, or an abuse of discretion. The Court
determines that they are not, and will therefore adopt the
PFRD.”); Trujillo v. Soc. Sec. Admin., No. CIV
12-1125 JB/KBM, 2013 WL 1009050, at *5 (D.N.M. Feb. 28,
2013)(Browning, J.)(adopting the proposed findings and
conclusions, noting: “The Court did not review the ARD
de novo, because Trujillo has not objected to it, but rather
reviewed the . . . findings and recommendations to determine
if they are clearly erroneous, arbitrary, obviously contrary
to law, or an abuse of discretion, which they are
not.”). This review, which is deferential to the
Magistrate Judge's work when there is no objection,
nonetheless provides some review in the interest of justice,
and seems more consistent with the waiver rule's intent
than no review at all or a full-fledged review. Accordingly,
the Court considers this standard of review appropriate.
See Thomas v. Arn, 474 U.S. 140, 151
(1985)(“There is nothing in those Reports, however,
that demonstrates an intent to require the district court to
give any more consideration to the magistrate's report
than the court considers appropriate.”). The Court is
reluctant to have no review at all if its name is going at
the bottom of the order adopting the Magistrate Judge's
proposed findings and recommendations.
Court, thus, does not determine independently what it would
do if the issues had come before the Court first, but rather
adopts the proposed findings and recommended disposition
where “[t]he Court cannot say that the Magistrate
Judge's recommendation . . . is clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of
discretion.” Pablo v. Soc. Sec. Admin., 2013
WL 1010401, at *4. A district judge must “make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1)(C).
“[O]bjections to the magistrate judge's report must
be both timely and specific to preserve an issue for de novo
review by the district court[.]” United States v.
2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996).
To preserve an issue, a party's objections to a PFRD must
be “sufficiently specific to focus the district
court's attention on the factual and legal issues that
are truly in dispute.” United States v. 2121 E.
30th St., 73 F.3d at 1060. Moreover, “theories
raised for the first time in objections to the magistrate
judge's report are deemed waived.” United
States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir.
PF&RD, Judge Vidmar concludes that Sanchez'
convictions under New Mexico's residential burglary
statute qualify as violent felonies under 18 U.S.C. §
924(e)(2)(B)'s enumerated clause. In this part's
remainder, the Court analyzes Sanchez' Objections to
Judge Vidmar's PF&RD. The Court concludes that Judge
Vidmar's conclusions are not clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of
discretion. The Court, accordingly: (i) overrules
Sanchez' Objections; (ii) adopts the PF&RD; (iii)
denies the Defendant's Motion; (iv) denies the
Defendant's Amended Motion; and (v) dismisses Case No.
CIV 15-1188 JB/SMV with prejudice.
JUDGE VIDMAR CONCLUDES THAT SANCHEZ' CONVICTIONS UNDER
NEW MEXICO'S RESIDENTIAL BURGLARY STATUTE QUALIFY AS
VIOLENT FELONIES UNDER 18 U.S.C. § 924(e)(2)(B)'S
was designated as an armed career criminal, and, thus, his
sentence was enhanced based on three prior felony convictions
for New Mexico residential burglary, NMSA 1978, §
30-16-3(A). See PSR ¶¶ 21-22, at 7, 8,
10-11. This designation was based on a determination that his
burglary convictions qualified as “violent
felon[ies]” under § 924(e)(2)(B) of the ACCA. PSR
argues that his burglary convictions qualified as violent
felonies -- and, thus, counted toward his armed career
criminal designation -- only under the now-invalidated
residual clause, entitling him to be resentenced.
See Amended Motion at 3. The United States argues
that Sanchez' residential burglary convictions qualify as
violent felonies even absent the unconstitutionally vague
residual clause. See United States' Response to
the Defendant's Motion and Supplement to Correct Sentence
Under 28 U.S.C. § 2255, at 2, filed October 10, 2016
(Doc. 13)(“Response to the Defendant's
Motion”). The United States argues that the residential
burglary convictions qualify as violent felonies under the
ACCA's so-called enumerated clause, which designates as
violent felonies certain specific crimes, among them
burglary. See Response to the
Defendant's Motion at 2. The United States, therefore,
argues that Johnson v. United States does not apply
to this case and that the Court should not resentence
Sanchez. See Response to the Defendant's Motion
at 13. Judge Vidmar agrees with the United States.
See PFRD at 20. Judge Vidmar concludes that
Sanchez' prior convictions for New Mexico residential
burglary qualify as violent felonies under the enumerated
clause of § 924(e)(2)(B), because he concludes that New
Mexico residential burglary is substantially similar to
generic burglary. See PFRD at 20. Because
Sanchez' sentence is enhanced irrespective of the
residual clause, Judge Vidmar concludes that Sanchez is not
entitled to resentencing. See PFRD at 20.
TO DETERMINE WHETHER A PAST CONVICTION QUALIFIES AS
AN ENUMERATED VIOLENT FELONY, COURTS COMPARE THE ELEMENTS OF
THE CRIME OF ...