United States District Court, D. New Mexico
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR United States Magistrate Judge.
MATTER is before me on Defendant Leonard Marquez's Motion
to Correct Sentence Pursuant to 28 U.S.C. § 2255, filed
June 23, 2016. [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
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.
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
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.
under § 2255 and Johnson v. United
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
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.”
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.
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.
§ 2255 Motion
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, 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.
argues that his prior convictions could have 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. The United
States does not argue that Marquez's prior conviction for
attempted robbery can be used to enhance his sentence under
the ACCA. [Doc. 9] 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. 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.
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.
convictions for New Mexico residential burglary qualify as
enumerated violent felonies under the ACCA.
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.
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).
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
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.
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
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
Mexico burglary, § 30-16-3, is divisible into its two
subsections, and Marquez was ...