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United States v. Alires

United States District Court, D. New Mexico

May 1, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOE RAY ALIRES, Defendant.

          Damon P. Martinez United States Attorney David M. Walsh Assistant United States Attorney Albuquerque, New Mexico Attorneys for the Plaintiff.

          Michael Keefe Assistant Federal Public Defender Office of the Federal Public Defender Albuquerque, New Mexico Attorneys for the Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Objections to Presentence Report, filed March 22, 2017 (Doc. 33)(“Objections”). The Court held a sentencing hearing on April 25, 2017. The primary issue is whether Defendant Joe Ray Alires -- who pled guilty to a one-count Indictment charging him with being a Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1) -- has at least three prior convictions for a violent felony or drug offense making him an armed career criminal who is subject to an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). The three prior convictions for violent felonies upon which the United States Probation Office (“USPO”) relies in its Presentence Investigation Report ¶ 13, at 4, disclosed April 14, 2017 (Doc. 36)(“PSR”), to apply the ACCA enhancement are for New Mexico “Residential Burglary, ” in violation of NMSA 1978, § 30-16-3(A). Because the Court concludes that the term “dwelling house, ” as the New Mexico Residential Burglary statute, NMSA 1978, § 30-16-3(A), uses that phrase, does not proscribe broader conduct than does the ACCA's generic enumerated offense of burglary, which itself proscribes unlawful entry into a “building or other structure, ” it will overrule the Objections and apply the ACCA's enhancement pursuant to 18 U.S.C. § 924(e)(1).

         FACTUAL BACKGROUND

         On March 9, 2017, Alires pled guilty to a one-count indictment charging him with a violation of 18 U.S.C. § 922(g)(1), for being “Felon in Possession of a Firearm.” Plea Agreement ¶ 3, at 2, filed March 9, 2017 (Doc. 31)(“Plea Agreement”). In the Plea Agreement, Alires admitted to the following:

On or about June 26, 2014, in Bernalillo County, in the District of New Mexico, I, Joe Ray Alires, having been previously convicted of the felony offenses of residential burglary, possession of a controlled substance, possession of a firearm by a felon, fraudulent use of a credit card, commercial burglary, possession of a deadly weapon or explosive by a prisoner, receiving stolen property, conspiracy to commit receiving and transferring a stolen motor vehicle, residential burglary, and unlawful taking of a motor vehicle, knowingly possessed in and affecting commerce, a firearm and ammunition: a Sig Sauer, model P226, 9mm caliber, semiautomatic pistol, serial number U135012 and approximately, ten (10) Winchester brand 9mm caliber cartridges; and approximately five (5) Remington Peters brand 9mm caliber cartridges. Specifically, the loaded pistol was located near the driver's seat of the Toyota pickup that I was driving prior to it being seized by law enforcement.

Plea Agreement ¶ 6, at 3.

I have been informed that [the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”)] examined the firearm and ammunition and determined that they both meet the statutory definitions of a firear[]m and ammunition. I have also learned that the firearm was manufactured outside the state of New Mexico and that the firearm and ammunition therefore had to have been previously shipped or transported [by] interstate commerce to be physically present and in my possession on June 26, 2014 in Bernalillo County, in the District of New Mexico. By signing this agreement, the Defendant admits that there is a factual basis for each element of the crime to which the Defendant is pleading guilty. The Defendant agrees that the Court may rely on any of these facts, as well as facts in the presentence report, to determine the Defendant's sentence, including, but not limited to, the advisory guideline offense level.

Plea Agreement ¶ 6, at 3-4.

         Alires has twelve convictions and eight other arrests, and a criminal history category of VI. See PSR at 6-16. Regarding Alires' relevant convictions for “felony offenses of residential burglary, ” Plea Agreement ¶ 6, at 3, Alires was arrested for his first residential burglary offense on September 8, 1999, see PSR ¶ 34, at 8. Alires' fingerprints were lifted from a residence in Albuquerque, New Mexico, where the owners had reported that the “back gate to their home was open . . . [and] several items [were] missing . . . includ[ing] three rifles, a shotgun, and property from the children's room.” PSR ¶ 34, at 8. Albuquerque Police's investigation also discovered that, “on March 31, 1999, [Alires] pawned a Nintendo 64 (the [residence owner's] gaming system), games, and also an LCD projector.” PSR ¶ 34, at 8. Alires was arrested for his second residential burglary offense on April 11, 2005. See PSR ¶ 38, at 10-11. On that occasion,

Albuquerque Police were dispatched to a burglary in progress. The caller advised she was locked in her bathroom and could hear a back window breaking. The caller also told police that she could hear someone in her house. Officers arrived on scene, and observed the defendant walking out the front door. He appeared startled as he looked at the officers and quickly walked back into the house, slamming the door. Officers gave the defendant commands to come out of the house, as officers were informed the home owner was still inside. Officers broke a window in the house and continued to give the defendant verbal commands to exit the residence. The defendant ultimately surrendered to police . . . .

PSR ¶ 38, at 10-11.

         Alires' arrest for his third residential burglary offense came on October 27, 2005. See PSR ¶ 40, at 11-12. There, a

police report from the Albuquerque Police Department, [charged that Alires] did unlawfully enter a residence on General Stilwell NE, with the intent to commit a theft ther[e]in. A neighbor to the residence observed the defendant running from a residence out a back yard. The defendant ran from neighbors and jumped into a vehicle driving in the area. Police located the address tied to that vehicle and spoke with the owner who advised the person who jumped in the vehicle was Joe Alires. The owner of the residence on General Stilwell, NE advised police no one had permission to be in his residence or take any property in the residence. Stolen items from the home had the approximate value of $1, 200.00.

PSR ¶ 40, at 11-12. Alires' fourth arrest for a residential burglary offense came on June 26, 2014, and came in connection with the conduct leading to Alires' present one-count federal charge for being a felon in possession of a firearm. See PSR ¶ 41, at 12. Alires was in the process of burglarizing a residential home when police officers arrived, and thereafter apprehended him and discovered the firearms. See PSR ¶ 10, at 3-4.

         PROCEDURAL HISTORY

         Alires pled guilty to a one-count indictment charging him with a violation of 18 U.S.C. § 922(g)(1), for being “Felon in Possession of a Firearm.” Plea Agreement ¶ 3, at 2. The USPO disclosed a PSR on April 14, 2017, recommending the Court apply the ACCA's enhancement for armed career criminals pursuant to 18 U.S.C. § 924(e). PSR ¶ 25, at 6. The PSR applies the ACCA enhancement, stating:

The offense of conviction is a violation of 18 U.S.C. § 922(g), and the defendant has at least three prior convictions for a violent felony or serious drug offense, or both, which were committed on different occasions. Therefore, the defendant is an armed career criminal and subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e). The offense level for an armed career criminal is the greatest of §§4B1.4(b)(1), (b)(2) or (b)(3). In this case, the defendant used or possessed a firearm or ammunition in connection with either a crime of violence, as defined in §4B1.2(a), or a controlled substance offense, as defined in §4B1.2(b), or the firearm possessed by the defendant was of a type described in 26 U.S.C. § 5845(a).

PSR ¶ 25, at 6.

         Alires then filed his Objections to the ACCA enhancement on March 22, 2017, see Objections at 1, and the Plaintiff United States of America responded to the Objections on March 23, 2017, in support of the ACCA enhancement, with the United States' Response to Defendant's Objections to Presentence Report, filed March 23, 2017 (Doc. 34)(“Response”), see Response at 1. Alires replied to the Response with the Defendant's Reply to the United States' Response to Defendant's Objections to Presentence Report at 6, filed April 10, 2017 (Doc. 35)(“Reply”). The USPO disclosed an addendum to the PSR on April 19, 2017, to reflect application of the “2016, rather than the 2015, Guidelines Manual.” Memorandum, disclosed April 19, 2017 (Doc. 40)(“Addendum”).

         1. The Objections.

         Alires primarily objects to “the finding in paragraph 22 of the Presentence Report [] that the defendant is an armed career criminal based on his prior convictions . . . in New Mexico for residential burglary.” Objections at 1. Alires, consequently, objects to the PSR's recommendation that the Court apply the ACCA sentencing enhancement. See Objections at 1-2. In his Objections, Alires contends that the “meaning of ‘dwelling house' in N.M.S.A. § 30-16-3(A) is any structure, any part of which is customarily used as living quarters.” Objections at 2. Because of “the New Mexico Court of Appeals decision in State v. Foulenfont, 895 P.2d 1329, 1332 (NM App. 1995), ” Alires argues, “the framework and language of § 30-16-3 strongly suggests vehicles, watercraft and aircraft are ‘structures' within the ‘dwelling house' definition.” Objections at 2. Alires thus explains that, because there is “a realistic probability New Mexico would apply § 30-16-3(A) to unlawful entry into vehicles, ” and because his “offense stretches beyond the confines of generic burglary, Mr. Alires' potential ACCA sentence is founded on the ACCA's residual clause, ” which is now unconstitutional. Objections at 2-3.

         2. The Response.

         The United States argues in its Response that “the elements of the New Mexico offense of residential burglary in § 30-16-3(A) match or are narrower than the Supreme Court's definition of generic burglary, [meaning that the] Defendant's burglary convictions should qualify as ACCA predicate offenses.” Response at 2. The United States contends that Alires' New Mexico residential burglary offenses thus fall within the purview of the ACCA's enumerated offense of generic burglary, see 18 U.S.C. § 924(e)(2)(B)(ii), subjecting him to the ACCA enhancement, see Response at 2. According to the United States, “if a statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form.” Response at 2 (citing Descamps v. United States, 133 S.Ct. 2276, 2283 (2013)). Further, the United States explains that “[t]o determine whether a prior conviction is for generic burglary courts apply what is known as the categorical approach, ” which “requires a comparison between the elements of the statute at issue with the elements of the generic offense.” Response at 2-3 (citing Taylor v. United States, 495 U.S. 575, 600 (1990); Mathis v. United States, 136 S.Ct. 2243, 2248 (2016)). The United States provides that, where a statute contains “multiple alternative elements, ” however, “a court may employ the modified categorical approach, but if the statute instead ‘enumerates various factual means of committing a single element, ' the court may not.” Response at 3 (citing Mathis v. United States, 136 S.Ct. at 2249). The United States argues that, to ascertain whether the modified categorical approach must be applied, the Supreme Court of the United States of America has explained:

The first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means. If they are elements, the court should do what we have previously approved: review the record materials to discover which of the enumerated alternatives was the offense of conviction and compare the elements of the offense of conviction to the generic crime. But instead if they are means, the court has no call to decide which of the statutory alternatives was at issue in the earlier prosecution.

         Response at 3 (citing Mathis v. United States, 136 S.Ct. at 2256).

         Here, the United States argues:

[T]he New Mexico burglary statute has two alternative subsections with different penalties. Subsection 30-16-3(A), residential burglary, is a third degree felony, which carries a maximum penalty of three years in prison. . . . In contrast, subsection 30-16-3(B), commercial burglary, is a fourth degree felony, which carries a maximum penalty of 18 months in prison. . . . Thus, because these two alternatives have different penalties, they constitute different elements. . . . As a result, the New Mexico burglary statute is a divisible statute and the court may apply the modified categorical approach to determine which subsection formed the basis of defendant's convictions in this case. . . . Here, the modified categorical approach can be employed to establish that his convictions were for residential burglary.

         Response at 3 (citing Mathis v. United States, 136 S.Ct. at 2256). Then, in support of its argument that the New Mexico residential burglary offense had elements that were the same or narrower than generic burglary, the United States argues that the New Mexico offense only “requires an entry of a dwelling house with the intent, at the time of entry, to commit a felony or theft therein.” Response at 5. The “dwelling house element, ” the United States contends, is “narrower than the ‘building or other structure' element of generic burglary, ” because in “New Mexico law, a ‘dwelling house' is defined as ‘any structure, any part of which is customarily used as living quarters' [which] is necessarily narrower than generic burglary because it applies to only one category of buildings or structures, i.e., only those customarily used as living quarters.” Response at 5 (citing State v. Ross, 1983-NMCA-065, ¶ 11, 665 P.2d 310). Accordingly, the United States explains that its “conclusion that § 30-16-3(A) qualifies as a generic burglary offense is supported by the Tenth Circuit's analysis of generic burglary in United States v. Ramon Silva, 608 F.3d 663, 668-69 (10th Cir. 2010) . . . [where] the court held that generic burglary encompasses those burglaries that have been ‘committed in a building or enclosed space . . . not in a boat or motor vehicle.'” Response at 6 (quoting Shepard v. United States, 544 U.S. 13, 16 (2005)). Thus, the United States asserts, when “[a]pplying Silva to § 30-16-3(A), a dwelling house unquestionably qualifies as ‘a building or enclosed space' because dwelling house is defined as a ‘structure, any part of which is customarily used as living quarters, '” and the “New Mexico definition of a dwelling house does not include a ‘boat or motor vehicle' or any other means of transport. Instead, it is limited to ‘structures.'” Response at 6 (citing State v. Ross, 1983-NMCA-065, ¶ 11, 665 P.2d 310). The United States last attacks Alires' reliance on the case of State v. Foulenfont, 1995-NMCA-028, 895 P.2d 1329, because the “offense of conviction at issue in Foulenfont was § 30-16-3(B), not § 30-16-3(A).” Response at 7.

         3. The Reply.

         The Reply begins, in relevant part, by explicating:

The Taylor Court made clear that certain “places . . . other than buildings” were not places, even if entered unlawfully with the intent to commit a crime that would qualify the offense as a “burglary.” . . . Those disqualified places include booths, tents, automobiles, boats and railroad cars. . . . The Court later clarified in Shepard that the ACCA “makes burglary a violent felony only if committed in a building or enclosed space (“generic burglary”) not in a boat or motor vehicle.” . . .
A defendant has been convicted of a “burglary” under the ACCA if the defendant has been convicted of an offense that “corresponds in substance” to the generic definition.

         Reply at 4 (quoting Taylor v. United States, 495 U.S. at 599; Shepard v. United States, 544 U.S. at 15-16; United States v. Ramon Silva, 608 F.3d at 668-69). The Reply also concedes that “[t]he parties agree that § 30-16-3's section A has elements that are divisible from § 30-16-3's section B, given the difference in penalties between the two, ” thus inherently requiring application of the modified categorical approach. Reply at 5 (citing Mathis v. United States, 136 S.Ct. at 2256 (“If statutory alternatives carry different punishments, then . . . they must be elements.”). Accordingly, Alires' Reply provides that “[t]he parties dispute what places ‘dwelling house' in § 30-16-3(A) encompasses, ” and that he “will demonstrate ‘dwelling house' includes places, such as vehicles, watercraft, aircraft and similar structures that take New Mexico residential burglary outside the bounds of generic burglary.” Reply at 5-6.

         Alires proceeds to argue that New Mexico's Uniform Jury Instruction 14-1630 defines “dwelling house, ” for the purposes of New Mexico's residential burglary offense, as “any structure, any part of which is customarily used as living quarters.” Reply at 6. Alires then contends that “the state's express definition of ‘dwelling house' suggests an expansive interpretation of the term[, because t]he definition refers to ‘any' ‘structure.'” Reply at 6. Alires strongly relies on UJI 14-1630's use of the word “any, ” and highlights a Court of Appeal of New Mexico's opinion which concludes that a “dwelling house” encompasses burglary of a garage without access to a residence. Reply at 6-7. According to Alires, this UJI ensures that “jurors would reasonably understand the definition to include a wide range of structures.” Reply at 8.

         Alires then addresses the Court of Appeal of New Mexico opinion

in Foulenfont [which] shows how far the “dwelling house” term stretches. In that case, the court applied to § 30-16-3 the ejusdem generis principle that where general words follow an enumeration of things of a particular and specific meaning, the general words are construed as applying to things of the same kind or class as those specifically mentioned. . . . Based on that principle the court held the term “other structure” that follows “vehicle, watercraft, aircraft, dwelling” in § 30-16-3's introductory paragraph means “an enclosure similar to a vehicle, watercraft, aircraft or dwelling.”

         Reply at 8. It is Alires' contention, then, that,

Foulenfont's holding makes apparent that a vehicle, a watercraft or an aircraft is as much a “structure” as a dwelling is. In other words, the word “structure” includes those things as well as enclosures similar to them. Consequently, the accepted definition of “dwelling house” -- “any structure, any part of which is customarily used as living quarters, ” NMRA Crim. UJI 14-1631 -- must include a vehicle, watercraft, aircraft or similar structure. This conclusion is consistent with the “‘normal rule of statutory construction' to interpret ‘identical words used in different parts of the same act [as having] the same meaning.'”

Reply at 9. Alires concedes, however, that the State v. Foulenfont holding concerns a prosecution for NMSA 1978 ยง 30-16-3(B) and not for NMSA 1978 ...


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