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United States v. Tolentino

United States District Court, D. New Mexico

June 12, 2017

UNITED STATES OF AMERICA Plaintiff/Respondent,



         THIS MATTER is before the Court on Magistrate Judge Lourdes A. Martínez' Proposed Findings and Recommended Disposition (Doc. 12) [1] (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 prejudice.


         As 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].

         In his § 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.

         The 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.' Id.
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).

         The 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 therein.
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 ...

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