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United States v. Luna

United States District Court, D. New Mexico

June 20, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RICHARD ELIZARDO LUNA, Defendant/Movant.

          SECOND AMENDED PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE

         Richard Elizardo Luna, presently incarcerated at FCI Florence, seeks review of his sentence under 28 U.SC. § 2255 in light of the Supreme Court's decision in Johnson v. United States, 576 U.S. __, 135 S.Ct. 2551 (2015). In his motion to vacate, Luna contends that his three convictions for burglary under Section 30-16-3(A) and (B) of the New Mexico Statutes no longer qualify as violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), the basis used to enhance his sentence to 180 months. [Docs. 57 & 61]. The Government has filed a response in opposition [Doc. 64], and Luna a reply [Doc. 66]. The parties have also on two occasions submitted objections, responses, and replies to earlier recommendations from this Court's predecessor. [See Docs. 70, 72, 76, 77, & 80]. Acting under its inherent authority to reconsider previous rulings and an order of reference from United States District Judge Martha Vazquez to conduct proceedings, see 28 U.S.C. § 636, the Court has considered the parties' submissions and now recommends Luna's motion be granted and he be resentenced.

         I. BACKGROUND

         A. Facts Underlying Conviction

         On April 24, 2012, a federal grand jury returned a single-count indictment charging Luna with being a felon in possession of a firearm contrary to Title 18, Sections 922(g)(1) and 924(a)(2) of the United States Code. [Doc. 2]. The charging document listed three prior felonies as the basis for the offense, including two convictions for residential burglary and one for larceny. [Doc. 2, ¶¶1-3]. On December 5, 2012, Luna pleaded guilty to the charge and executed a formal plea agreement. [Doc. 42]. United States Magistrate Judge Robert Hayes Scott accepted the plea, and the matter was set for sentencing. [Doc. 43].

         The factual basis for Luna's commission of the offense is set forth in the plea agreement. [Doc. 42, ¶5]. Luna admitted that in July of 2012, he knowingly possessed a Smith & Wesson model 5903, 10 rounds of Federal brand 9 millimeter cartridges and a single Winchester brand 9 millimeter cartridge. [Doc. 42, ¶9]. Luna also agreed 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.” [Doc. 42, ¶10]. The parties nonetheless proposed a sentence of 180 months as representing the appropriate amount of incarceration in light of the crime's nature and severity. [Doc. 42, ¶5].

         The United States Probation Office prepared a report in advance of Luna's sentencing. [CV Doc. 21]. This Presentence Report (“PSR”) noted that Luna “has at least three prior convictions for a violent felony, or drug offense, or both, which were committed on different occasions.” [CV Doc. 21, p. 11]. As a result, the Probation Office determined that Luna “is an armed career criminal and subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e).” [Id.]. Although the PSR indicated Luna had convictions for seven drug or violent felonies, the Probation Office relied on three: a June 12, 1987 conviction for residential burglary in New Mexico's Second Judicial District; an August 16, 1996 conviction for the same crime in the same district; and a December 15, 2008 conviction for commercial burglary in the same district. [Id.]. In a separate section detailing Luna's full criminal history, the PSR documented a total of four adult convictions for residential burglary, among numerous others. [Id., pp. 12-29].

         On March 22, 2013, Luna filed objections to the PSR. [Doc. 47]. In relevant part, he challenged his conviction for “commercial burglary . . . as qualifying him as an Armed Career Criminal” for sentencing purposes. [Doc. 47, pp. 2-3]. Specifically, Luna argued, that conviction is not a violent felony under the categorical approach and facts of the offense. [Doc. 47, pp. 3-6]. The Government responded to the objection and asserted that there were many other residential burglary convictions that would support the ACCA enhancement, and generic commercial burglary is a qualifying violent felony at any rate. [Doc. 49, pp. 4-5]. On April 22, 2013, United States District Judge Nancy Freudenthal adopted the PSR findings and sentenced Luna to 180 months incarceration, the minimum required by the ACCA. [Docs. 52; 53].

         B. Procedural Facts

         On April 25, 2016, Luna filed the instant motion pursuant to 28 U.S.C. § 2255 and Johnson challenging the Court's use of his burglary conviction under N.M. Stat. Ann. § 30-16-3(B) as a basis for the ACAA enhancement. [Doc. 57]. The Court subsequently appointed counsel to assist him. [Doc. 59]. Thereafter, the Government filed a response in opposition [Doc. 64], and Luna a reply [Doc. 66]. United States District Judge Martha Vazquez referred the matter to this Court's predecessor, United States Magistrate Judge Lourdes Martinez, on January 25, 2017 for proposed findings and a recommended disposition (“PFRD”). [CV Doc. 15].

         On February 14, 2017, Judge Martinez issued the first of two PFRDs. [Doc. 70] In the first report, Judge Martinez recommended resentencing. [Doc. 70, p. 14]. She reasoned that under the modified categorical approach, Luna's conviction for commercial burglary was not an enumerated violent felony. [Doc. 70, pp. 10-14]. Because that offense did not qualify, there were only two permissible prior convictions under the ACCA and the 15 year minimum was no longer appropriate. [Doc. 70, pp. 13-14].

         Following objections [Doc. 72], Judge Martinez issued a second PFRD on April 25, 2017 reconsidering her earlier recommendation. [Doc. 76]. Based on Luna's substantial criminal history that included additional convictions for residential burglary under Section 30-16-3(A) as outlined in a separate section of the PSR that had only then become available to the Court, Judge Martinez recommended that Luna's motion to vacate his sentence be denied. [Doc. 76, p. 3]. Luna timely objected, urging Judge Vazquez not to adopt the recommendation. [Doc. 77, p. 12]. Luna asserted that the Government waived reliance on the other residential burglaries in the PSR's recitation of his criminal history because those were not used in actually enhancing his sentence-only the two residential burglaries and the single commercial burglary formed the predicate under the ACCA. [Doc. 77, pp. 5-8].

         The Government disagreed in an amended response to Luna's objection. [Doc. 79]. It insisted the Eleventh Circuit precedent Luna cited does not support his waiver contention and, at any rate, the crime of commercial burglary under N.M. Stat. Ann. § 30-16-3(B) qualifies post Johnson as one of the violent felonies enumerated in the ACCA. [Doc. 78, p. 3-4]. Luna filed a reply[1] on June 7, 2017 reiterating his waiver argument. [Doc. 80]. On June 13, 2017, Judge Vazquez referred the matter to this Court. [CV Doc. 28].

         II. APPLICABLE LAW

         An offense under Section 922(1) for being a felon in possession carries a maximum prison term of ten years so long as the offender has not been convicted of three previous violent felonies or serious drug offenses. See 18 U.S.C. § 924(a)(2) & (e)(1). If the defendant has the three prior convictions, the ACCA imposes a minimum sentence of 15 years' incarceration. At the time of Luna's conviction, the ACCA defined violent felonies as an offense “punishable by more than a year, ” involving “as an element the use, attempted use, or threatened use of force, ” or the crime is “burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). The Court enhanced Luna's sentence under the ACCA because he was twice convicted for residential burglary under N.M. Stat. Ann. § 30-16-3(A) and once for commercial burglary contrary to N.M. Stat. Ann. § 30-16-3(B).

         Two years after Luna's sentencing, the United States Supreme Court held that the ACCA's “residual clause”-the one that allows an ACCA enhancement for crimes “otherwise involving conduct that presents a serious risk of physical injury”- is unconstitutionally vague, but left intact the enumerated-crimes provision (burglary, arson, extortion, crimes involving explosives). Johnson, 135 S.Ct. at 2256. Johnson's holding is retroactive, see Welch v. United States, __ U.S. __, __, 136 S.Ct. 1257, 1268 (2016), and Luna asserts that the three burglary convictions upon which the Court based the enhancement do not survive Johnson's mandate. He is partially correct, and for that reason the Court recommends he be resentenced.

         III. ANALYSIS

         Whether a conviction for burglary qualifies as a violent felony post Johnson requires the Court to compare that offense under New Mexico law to the federal “generic” version of the same crime. See Taylor v. United States, 495 U.S. 575, 598 (1990). Under this “categorical approach, ” the Court focuses “solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case.” Mathis v. United States, U.S. __, __, __, 136 S.Ct. 2243, 2248 (2016). If the elements of New Mexico burglary-or “things the prosecution must prove to sustain a conviction”- are broader than the federal ...


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