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United States v. Marquez

United States District Court, D. New Mexico

May 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LEONARD G. MARQUEZ, Defendant.

          MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          STEPHAN M. VIDMAR United States Magistrate Judge.

         THIS MATTER is before me on Defendant Leonard Marquez's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255, filed June 23, 2016.[1] [CR Doc. 59; CV Doc. 1]. The United States responded on September 22, 2016. [CR Doc. 66; CV Doc. 8]. Marquez replied on December 5, 2016. [CR Doc. 73; CV Doc. 15]. The C. Honorable LeRoy Hansen, Senior United States District Judge, referred this matter to me for analysis and a recommended disposition. [CR Doc. 60; CV Doc. 2]. Having considered the briefing, relevant portions of the underlying criminal record, and relevant authorities, and being otherwise fully advised in the premises, I find that Marquez's prior convictions for violating NMSA 1978, §§ 30-3-2(A) (aggravated assault with a deadly weapon) and 30-16-3(A) (residential burglary) qualify as violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), irrespective of the now-unconstitutional residual clause. Therefore, his sentence is not unconstitutional and he is not entitled to re-sentencing pursuant to Johnson v. United States and Welch v. United States. His motion should be denied.

         Background

         On February 16, 2007, Marquez was charged with being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2). Presentence Report (“PSR”) at 3. On September 8, 2010, he pleaded guilty to the offense. Id.

         United States Probation and Pretrial Services had prepared his PSR. Id. The PSR provided that Marquez qualified as an armed career criminal under the Armed Career Criminal Act (“ACCA”) because he had at least three prior violent felony convictions: two for residential burglary in New Mexico, one for aggravated assault with a deadly weapon in New Mexico, and one for attempted robbery in New Mexico. Id. at 7-8. With the armed career criminal enhancement, Marquez's offense level was 33.[2] Id. at 7. Based on a downward adjustment for acceptance of responsibility, his total offense level was 30, with a criminal history category of VI and a guideline imprisonment range of 168-210 months. Id. at 8, 31. On March 29, 2011, the Court sentenced Marquez to 180 months' imprisonment. [CR Doc. 57]. Marquez did not appeal his sentence. The instant case is his first motion under § 2255.

         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, 2557 (2015), the Supreme Court held that the so-called “residual clause” of the definition of “violent felony” in the ACCA was unconstitutionally vague. 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 Court explained that the residual clause left “grave uncertainty” about “deciding what kind of conduct the ‘ordinary case' of a crime involves.” Johnson, 135 S.Ct. at 2557. That is, the residual clause “denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges” because it “tie[d] the judicial assessment of risk to a judicially imagined ‘ordinary case' of a crime, not to real-world facts or statutory elements.” Id. Second, the ACCA's residual clause left “uncertainty about how much risk it takes for a crime to qualify as a violent felony.” Id. at 2558. By combining these two indeterminate inquiries, the Court held, “the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id. On that ground it held the residual clause void for vagueness. Id.

         Soon thereafter, the Court determined that the ruling in Johnson was substantive (as opposed to procedural) and, therefore, had “retroactive effect in cases on collateral review.” Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Accordingly, Welch 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.

         Marquez's § 2255 Motion

         Marquez was designated as an armed career criminal-and thus, his sentence was enhanced-based on four prior felony convictions: two for New Mexico residential burglary, [3]NMSA 1978, § 30-16-3(A), and one each for New Mexico aggravated assault with a deadly weapon, NMSA 1978, § 30-3-2(A), and New Mexico attempted robbery, NMSA 1978, §§ 30-16-2, 30-28-1. This designation was based on a determination that all four convictions qualified as violent felonies under § 924(e)(2)(B) of the ACCA. PSR at 7-8, 31.

         Marquez argues that his prior convictions could have qualified as violent felonies[4] (and, thus, counted toward his armed career criminal designation) only under the now-invalidated residual clause, entitling him to be resentenced. The United States does not argue that Marquez's prior conviction for attempted robbery can be used to enhance his sentence under the ACCA.[5] [Doc. 9][6] at 2. The United States contends that his two residential burglary convictions qualify under the ACCA's so-called “enumerated clause, ” which designates certain specific crimes, including burglary, as violent felonies.[7] Id. The government further contends that whether Marquez has a third qualifying violent felony-and thus whether his sentence was properly enhanced-depends on whether his aggravated assault conviction qualifies under the so-called “force clause” of the ACCA. Id. It concludes that the Tenth Circuit's decision in United States v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016), disposes of this issue and thus determines the ultimate outcome of this case. [Doc. 8] at 3-4.

         I find that Marquez's prior convictions for residential burglary and aggravated assault qualify as violent felonies even absent the unconstitutional residual clause. His prior burglary convictions qualify under the enumerated clause because New Mexico residential burglary is substantially similar to generic burglary. And, based on the holding of Maldonado-Palma, his prior conviction for aggravated assault with a deadly weapon qualifies under the force clause. Therefore, I recommend that Marquez not be resentenced and that his § 2255 motion be denied.

         Marquez's convictions for New Mexico residential burglary qualify as enumerated violent felonies under the ACCA.

         To determine whether a prior conviction qualifies as a violent felony under the enumerated clause, courts compare the elements of the crime of conviction with the elements of the generic offense.

         The enumerated clause of § 924(e)(2)(B) provides that an underlying felony conviction is a “violent felony” if it “is burglary, arson, or extortion, [or] involves use of explosives.” To determine whether a past conviction qualifies as one of the offenses enumerated in § 924(e)(2)(B)(ii), courts compare the elements of the crime of conviction with the elements of the “generic” version of the listed offense-in other words, “the offense as commonly understood.” Descamps v. United States, 133 S.Ct. 2276, 2281 (2013). A prior conviction qualifies as an enumerated ACCA predicate offense only if its elements are the same as, or narrower than, those of the generic offense. Id.; Mathis v. United States, 136 S.Ct. 2243, 2247 (2016). State law defines the substantive elements of the crime of conviction. United States v. Harris, 844 F.3d 1260, 1264 (10th Cir. 2017). And federal law governs the definition and scope of the generic offense. Id.; United States v. Rivera-Oros, 590 F.3d 1123, 1126 (10th Cir. 2009).

         “A state statute does not need to match the generic definition verbatim.” Rivera-Oros, 590 F.3d at 1133. It need only “correspond[] in substance to the generic meaning.” Taylor v. United States, 495 U.S. 575, 599 (1990). “[T]o find that a state statute creates a crime outside the generic definition . . . . requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Rivera-Oros, 590 F.3d at 1133 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).

         In undertaking this comparison of elements, courts generally apply the so-called “categorical approach.” That is, courts consider only whether the elements of the crime of conviction sufficiently match the elements of the generic offense, while ignoring the particular facts of the case. Mathis, 136 S.Ct. at 2248 (citing Taylor, 495 U.S. at 600-01). If the underlying statute of conviction “sweeps more broadly than the generic crime, ” the prior conviction cannot qualify as an ACCA predicate, irrespective of whether the defendant's actual conduct in committing the crime would qualify under the generic offense. Descamps, 133 S.Ct. at 2283.

         Some statutes, however, have a more complicated structure and require a slightly different approach. A single statute may be “divisible”-it may list elements in the alternative- and thereby define multiple crimes. Id. at 2281. When a statute defines multiple crimes by listing alternative elements, courts undertake the “modified categorical approach” to determine which of the multiple alternative elements listed in the statute applied to convict the defendant. Id. Under the modified categorical approach, a sentencing court looks to the record of conviction to determine what crime, with what elements, a defendant was convicted of. The court then compares the elements of that crime, as the categorical approach commands, with the elements of the relevant generic offense. Id.

         The Supreme Court has provided guidance for determining whether a statute is indivisible or divisible and, thus, whether to implement the modified categorical approach first or proceed directly to the categorical approach. Mathis, 136 S.Ct. at 2256-57. The central question is whether the statute lists multiple elements disjunctively, thereby creating multiple different crimes (i.e., a divisible statute, triggering the modified categorical approach), or whether it enumerates various factual means of committing a single element (i.e., an indivisible statute, requiring the categorical approach). Id. at 2249-50. If a state court decision “definitively answers the question, ” then a sentencing judge “need only follow what it says.” Id. at 2256. Or, “the statute on its face may resolve the issue.” Id. If statutory alternatives carry different punishments, then they must be elements (and, thus, the statute divisible, triggering the modified categorical approach). Id. (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)). “Conversely, if a statutory list is drafted to offer ‘illustrative examples, ' then it includes only a crime's means of commission.” Id.

         New Mexico burglary, ยง 30-16-3, is divisible into its two subsections, and Marquez was ...


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