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Sanchez v. United States

United States District Court, D. New Mexico

April 30, 2017

MARCOS SANCHEZ, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          Aric G. Elsenheimer Richard A. Winterbottom Attorneys for the Plaintiff

          Damon P. Martinez Jack Burkhead Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER ADOPTING THE MAGSISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOTITION

         THIS 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.

         FACTUAL BACKGROUND

         On 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 33.[1] 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).

         Sanchez 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.

         On the 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.[2] See PFRD at 20.

         LAW REGARDING MOTIONS UNDER § 2255 AND JOHNSON V. UNITED STATES

         Pursuant 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.”

         The 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.

         Soon 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.

         LAW REGARDING PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         Where 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.

         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. 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. 2001).

         ANALYSIS

         In his 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.

         I. 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.

         Sanchez 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 at 21.

         Sanchez 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.[3] 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.

         A. TO DETERMINE WHETHER A PAST CONVICTION QUALIFIES AS AN ENUMERATED VIOLENT FELONY, COURTS COMPARE THE ELEMENTS OF THE CRIME OF ...


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