United States District Court, D. New Mexico
SECOND AMENDED PROPOSED FINDINGS AND RECOMMENDED
R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE
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.
Facts Underlying Conviction
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].
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].
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].
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;
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.
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].
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].
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 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].
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. §
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.
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