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United States v. Luna

United States District Court, D. New Mexico

August 8, 2017

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

          THIRD 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 he has three convictions for burglary under Section 30-16-3(A) and (B) of the New Mexico Statutes that 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].[1" name="FN1" id="FN1">1] The Government 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], and objections and a response to the subsequently proposed disposition by this Court. [See Docs. 82 & 83');">83');">83');">83]. 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 DENIED, he not be RESENTENCED, and this matter be DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         A. Facts Underlying Conviction

         On April 24, 2012, a federal grand jury returned a single-count indictment charging Luna as 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 indictment 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. 1');">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. 1');">21, 11');">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 listed four convictions in paragrap. 28 of the PSR, the portion of the report used to propose an ACCA enhancement: two June 12, 1987 convictions 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.]. Although paragrap. 28, subsection 1) identified one conviction date for two residential burglaries, the offenses were committed on two different dates, in different locations, and against two different victims-on August 19, 1986 and March 26, 1986; and against Robin Otten and Albert Marquez at their residences, respectively. [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., p12');">p. 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');">p. 3');">p. 3');">p. 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, Magistrate Judge Lourdes Martinez, on January 25, 2017 for proposed findings and a recommended disposition (“PFRD”). [CV Doc. 15]. The papers filed by both Luna and the Government through April 25, 2017 proceeded under the premise that paragrap. 28 of the PSR, concerning ACCA enhancement of Luna's sentence, listed two convictions for residential burglary and one conviction for commercial burglary.

         On February 14, 2017, Judge Martinez issued the first of two PFRDs. [Doc. 70]. In the first report, Judge Martinez recommended resentencing. [Doc. 70, 14');">p. 14]. Judge Martinez reasoned that under the modified categorical approach, Luna's conviction for commercial burglary was not a violent felony and could not be used to enhance his sentence under the ACCA. [Doc. 70, pp. 10-14]. Judge Martinez further reasoned that since the offense of commercial burglary could not be used to enhance Luna's sentence under the ACCA, and there were only two permissible prior convictions, Luna's 15-year minimum sentence was illegal. [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');">p. 3');">p. 3');">p. 3]. Luna timely objected, urging Judge Vazquez not to adopt the recommendation. [Doc. 77, 12');">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. Luna argued that paragrap. 28 of the PSR listed only the two residential burglaries and the single commercial burglary, and that only those convictions had formed the predicate under the ACCA for the enhancement of his sentence. [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, pp. 3');">p. 3');">p. 3');">p. 3-4]. The Government also contended that other residential burglary convictions listed in the criminal history portion of the PSR, but not in paragrap. 28, could be relied upon to enhance Luna's sentence under the ACCA. [Doc. 78, pp.3-4]. Significantly, the Government did not then assert and had not yet contended that the June 12, 1987 conviction for residential burglary set forth in the paragrap. 28 of the PSR actually encompassed two distinct convictions for residential burglaries committed on different dates, in different places, and with different victims, rather than serving as only one conviction for ACCA purposes. Luna filed a reply[2] 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].

         On June 20, 2017, this Court issued its Second Amended Proposed Findings and Recommended Decision (“Second Amended PFRD”) [Doc. 1');">81], in which this Court recommended resentencing. [Doc. 1');">81, 16');">p. 16]. The Court analyzed Luna's challenge under Section 2255 based on the same premise as the parties and Judge Martinez-that paragrap. 28 of the PSR listed two residential burglary convictions and one commercial burglary conviction. As had Judge Martinez, this Court reasoned that Luna's two convictions for residential burglary were violent felonies and could be used to enhance Luna's sentence under the ACCA, but, under the modified categorical approach, Luna's conviction for commercial burglary could not. [Doc. 1');">81, pp. 8-9]. As a result, the Court concluded that Luna's fifteen-year minimum sentence was invalid because only two prior convictions in paragrap. 28 that qualified under the ACCA as predicates. [Doc. 1');">81, pp. 9-12].

         The Court departed from Judge Martinez's amended recommendation, which was similarly predicated on paragraph 28 of the PSR listing only two residential burglary convictions, in one key respect. The Court determined due process and fundamental fairness militated in favor of resentencing Luna. [Doc. 1');">81, pp 13-14]. While Luna did have other convictions as reflected in the criminal-history portion of the PSR, Luna was not afforded adequate notice that the Government intended to use those offenses as predicates under the ACCA. [Doc. 1');">81, pp. 13-14].

         The Government objected to the Second Amended PRFD on July 5, 2017. [Doc. 82]. For the first time in this proceeding, the Government expressed its position that paragrap. 28 of the PSR “sets forth the ACCA eligible convictions in three paragraphs, but there are four convictions described therein…” [Doc. 82, p. 3');">p. 3');">p. 3');">p. 3 (emphasis added)]. The significance, according to the Government, is that paragrap. 28, the portion of the PSR designed to provide notice to Luna of the convictions that justify an enhanced sentence under the ACCA, set forth three residential burglaries. As a result, notwithstanding Luna's conviction for commercial burglary that does not qualify as a predicate under the ACCA post Johnson, Luna was appraised of three valid predicate felonies from paragrap. 28 itself, necessarily alleviating the Court's due process concerns. On July 20, 2017, Luna filed a response to the Government's objection, insisting that the Government waived its ability to rely not only on the criminal history section of the PSR but also, to the extent the Government had valid documentation, the third residential burglary offense listed in paragrap. 28. [Doc. 83');">83');">83');">83, p. 2-6].

         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. See18 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 ...


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