United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
HONORABLE MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Magistrate Judge Lourdes A.
Martínez' Proposed Findings and Recommended
Disposition (Doc. 12)  (hereinafter
“PF&RD”), filed on February 17, 2017, which
recommended denying Defendant/Movant's (hereinafter
“Defendant”) § 2255 motion [Doc.
1], filed on June 15, 2016. Defendant filed objections
to the PF&RD [Doc. 13] on March 1, 2017. The
Government did not respond to Defendant's objections and
the time for doing so has passed. The Court has conducted a
de novo review of those portions of the PF&RD to
which Defendant objects and finds that the objections are
without merit. Accordingly, the Court will: (1) overrule the
Defendant's objections as meritless; (2) adopt the
PF&RD; (3) deny Defendant's § 2255 motion; and
(4) enter a final judgment dismissing this case with
explained in the PF&RD, Defendant pled guilty in 2006 to
being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1) and 924(e)(1). See
[Doc. 12 at 2] (citing Cr.Doc. 16 and
Cr.Doc. 1). The parties state that Defendant was
subject to an enhanced sentence under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
which mandates a minimum sentence of 180 months (15 years),
based on two prior convictions for residential burglary and
one prior conviction for possession with intent to distribute
cocaine. See [Doc. 1 at 3] and [Doc.
7 at 2]. Defendant also states that his base offense
level under the Sentencing Guidelines was 24 and was based,
in part, on his prior convictions for residential burglary.
See [Doc. 1 at 2-3]. On December 12, 2006,
the presiding judge imposed a 180-month sentence, with 3
years of supervised release. See [Cr.Doc.
21 at 2-3].
§ 2255 motion, Defendant contends that, pursuant to the
holding of Johnson v. United States, 135 S.Ct. 2551
(2015), his prior convictions for residential burglary no
longer qualify as convictions for crimes of violence for
purposes of the ACCA or the Sentencing Guidelines, and,
therefore, cannot be used to enhance his sentence. [Doc.
1 at 6]. As explained in the PF&RD (see Doc.
12 at 3), in Johnson, the Supreme Court held
that the residual clause of the ACCA is unconstitutionally
vague. 135 S.Ct. 2551, 2563 (2015). The Magistrate Judge
noted that “[t]he Government does not appear to dispute
Defendant's contentions that his burglary convictions do
not fall under the force clause of the ACCA (§
924(e)(2)(B)(i)), or that they no longer qualify under the
residual clause pursuant to the holding in
Johnson.” [Doc. 12 at 5, n.4]. The
Magistrate Judge further noted that neither party briefed the
issue of whether Defendant's residential burglary
convictions qualify as convictions for crimes of violence
under the Sentencing Guidelines. Id. at 5-6, n.4.
Therefore, the Magistrate Judge considered whether
Defendant's residential burglary convictions fall under
the ACCA's enumerated clause. Id.
Magistrate Judge explained that, in order to determine
whether a past conviction qualifies as one of the ACCA's
enumerated offenses, “courts compare the elements of
the crime of conviction with the elements of the federal,
generic version of the listed offense.” Id. at
5-6 (citing Mathis v. United States, 136 S.Ct. 2243,
2248 (2016)). The Magistrate Judge further explained:
A prior conviction qualifies as an ACCA-predicate offense
‘if its elements are the same as, or narrower
than, those of the generic offense.' Mathis, 136
S.Ct. at 2248. However, ‘if the crime of
conviction covers any more conduct than the generic offense,
then it is not an ACCA “burglary” -- even if the
defendant's actual conduct (i.e., the facts of
the crime) fits within the generic offense's
boundaries.' Id. The federal, generic definition
of burglary is ‘an unlawful or unprivileged entry into,
or remaining in, a building or structure, with intent to
commit a crime.' Taylor v. United States, 495
U.S. 575, 599 (1990). Thus, when a burglary statute is
broader than the generic definition, then the statute may not
be used as an ACCA-qualifying predicate offense under the
enumerated clause. See, e.g., Descamps v. United
States, 133 S.Ct. 2276, 2282-83 (2013) (finding that
California's burglary statute, which provides that a
‘person who enters' certain locations ‘with
intent to commit grand or petit larceny or any felony is
guilty of burglary, ' is broader than federal generic
burglary because it criminalizes entering a location, even
lawfully, with the intent to steal, whereas generic burglary
requires an unlawful or unprivileged entry).
When a statute has a ‘divisible' structure, whereby
it lists elements in the alternative and defines multiple
crimes, a court must discern which of the alternative
elements listed was necessary for the defendant's
conviction. See Mathis, 136 S.Ct. at 2249. To do so,
courts use a ‘modified categorical approach, '
under which a court ‘looks to a limited class of
documents (for example, the indictment, jury instructions, or
plea agreement and colloquy) to determine what crime, with
what elements, a defendant was convicted of.'
Mathis, 136 S.Ct. at 2249 (citations omitted).
‘The court can then compare that crime, as the
categorical approach commands, with the relevant generic
offense.' Id. When faced with an
‘alternatively phrased' statute which
‘enumerates various factual means of committing a
single element' (id.), a court must
‘determine whether [the statute's] listed items are
elements or means' (id. at 2256). ‘If they
are elements, the court should . . . review the record
materials to discover which of the enumerated alternatives
played a part in the defendant's prior conviction, and
then compare that element (along with all others) to those of
the generic crime.' Id. (citation omitted).
However, if the listed items ‘are means [of committing
a single element], the court has no call to decide which of
the statutory alternatives was at issue in the earlier
prosecution, ' and ‘[g]iven ACCA's indifference
to how a defendant actually committed a prior offense, the
court may ask only whether the elements of the state
crime and generic offense make the requisite match.'
To determine whether a statute lists elements or means, a
court should look to see if state court decisions are of
assistance, as the Supreme Court did in Mathis when
it looked to an Iowa Supreme Court decision regarding
Iowa's burglary law, which held that the various premises
listed in the burglary statute at issue were
‘alternative methods of committing one offense, so that
a jury need not agree whether the burgled location was a
building, other structure, or vehicle.' Id.
(citing State of Iowa v. Duncan, 312 N.W.2d 519, 523
(Iowa 1981) (internal quotation marks and brackets omitted).
The Supreme Court stated that ‘[w]hen a ruling of that
kind exists, a sentencing judge need only follow what it
says.' Id. (citation omitted). In addition, the
Supreme Court instructs that ‘the statute on its face
may resolve the issue, ' and that ‘[i]f statutory
alternatives carry different punishments, then . . . they
must be elements, ' but ‘if a statutory list is
drafted to offer illustrative examples, then it includes only
a crime's means of commission.' Id.
(citations and internal quotations marks omitted). Finally,
if state law fails to provide clear answers, the Supreme
Court states that the court may ‘peek' at the
record of a prior conviction itself for ‘the sole and
limited purpose' of determining whether the listed items
are means or elements. Id. at 2256-57 (citation and
internal quotation marks omitted).
burglary statute at issue in this case reads:
Burglary consists of the unauthorized entry of any vehicle,
watercraft, aircraft, dwelling or other structure, movable or
immovable, with the intent to commit any felony or theft
A. Any person who, without authorization, enters a dwelling
house with intent to commit any felony or theft therein is
guilty of a third degree felony.
B. Any person who, without authorization, enters any vehicle,
watercraft, aircraft or other structure, movable or
immovable, with intent to commit any felony or theft ...