United States District Court, D. New Mexico
ORDER FOR SUPPLEMENTAL BRIEFING
FASHING UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Herman Dubois' Motion to
Correct Sentence Pursuant to 28 U.S.C. § 2255. Doc.
The Honorable Martha Vázquez referred this case to me
to recommend to the Court an ultimate disposition of the
case. No. CIV 16-0630 MV/LF, Doc. 2. The Court believes that
a recent published Tenth Circuit opinion-a case not decided
when the briefing was complete-may control the outcome of
this case. The Court therefore will direct the parties to
submit simultaneous briefs on how United States v.
Snyder, ___ F.3d___, 2017 WL 4171886 (10th Cir. Sept.
21, 2017) affects this case, as explained below.
Background Facts and Procedural Posture
December 20, 2010, Dubois pled guilty to an indictment that
charged him with being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). See Docs. 2, 38, 40. The probation
officer who prepared Dubois' presentence report
(“PSR”) determined that Dubois had at least three
prior violent felony convictions, and therefore was subject
to an enhanced sentence as an armed career criminal under
USSG § 4B1.4 and 18 U.S.C. § 924(e). PSR ¶ 26.
The PSR relied on two prior convictions for burglary of a
dwelling house, two prior convictions for aggravated burglary
(armed after entering), and a robbery conviction.
Id. Because Dubois was considered an armed career
criminal under 18 U.S.C. § 924(e)(1), he was subject to
a mandatory minimum sentence of 180 months in prison, and his
guideline imprisonment sentence was 180 months, rather than
the ten-year maximum sentence that otherwise would have been
applicable. See PSR ¶ 91; 18 U.S.C. §
party objected to the PSR. See Doc. 45. Pursuant to
the plea agreement, the government filed a motion for
downward departure, which the Court granted. See
Docs. 43, 44. On May 12, 2011, the Court sentenced Dubois to
144 months in prison. Docs. 45, 46. The Court entered its
judgment on May 16, 2011. See Doc. 46.
22, 2016, Dubois filed a Motion to Vacate and Correct
Sentence Pursuant to 28 U.S.C. § 2255 (and Johnson
v. United States). Doc. 48. The government filed its
response on October 31, 2016, Doc. 59, and Dubois filed his
reply on February 3, 2017, Doc. 61.
Dubois' Claims and the Government's
argues that his prior robbery conviction and his four prior
burglary convictions under New Mexico law no longer qualify
as violent felonies under the Armed Career Criminal Act
(ACCA), and that his sentence therefore exceeds the statutory
maximum sentence. Doc. 48 at 4-15. He argues that because the
Supreme Court held in Johnson that the ACCA's
“residual clause” is unconstitutionally vague, he
no longer has three prior felony convictions that qualify as
violent felonies under either the “elements
clause” or the “enumerated crimes clause”
of the ACCA. See id. In response, the government
does not rely on Dubois' prior robbery conviction.
Instead, the government argues that Dubois has four prior
burglary convictions that still qualify as violent felonies
under the ACCA. Doc. 59 at 2-13.
The Supreme Court's Decision in Johnson
ACCA provides, in pertinent part, that “[i]n the case
of a person who violates section 922(g) of this title and has
three previous convictions . . . for a violent felony . . .
committed on occasions different from one another, such
person shall be . . . imprisoned not less than fifteen years
. . . .” 18 U.S.C. § 924(e)(1). “[T]he term
‘violent felony' means any crime punishable by
imprisonment for a term exceeding one year . . . that-(i) has
as an element the use, attempted use, or threatened use of
physical force against the person of another [the
“elements clause”]; or (ii) is burglary, arson,
or extortion, involves use of explosives [the
“enumerated crimes clause”], or otherwise
involves conduct that presents a serious potential risk of
physical injury to another [the “residual
clause”] . . . .” 18 U.S.C. § 924(e)(2)(B).
In Johnson v. United States, 135 S.Ct. 2551, 2563
(2015), the Supreme Court struck down the residual clause as
unconstitutionally vague, but it left intact the elements
clause and the enumerated crimes clause. The following year
the Court held that Johnson announced a substantive
rule that applied retroactively on collateral review.
Welch v. United States, 136 S.Ct. 1257, 1268 (2016).
Thus, to be entitled to relief under Johnson, a
defendant must have been sentenced under the residual clause
of the ACCA, not the elements clause or the enumerated crimes
The Tenth Circuit's Decision in Snyder
Snyder, the defendant argued-just as Dubois argues
here-that his prior burglary convictions under Wyoming law
“cannot sustain the ACCA sentencing enhancement.”
2017 WL 4171886, at *4. The Tenth Circuit determined that
this argument “necessarily implies that the district
court, in sentencing Snyder under the ACCA, concluded that
his prior burglary convictions fell within the scope of the
ACCA's residual clause, ” not the enumerated crimes
clause. Id. The district court that considered
Snyder's 2255 petition “found, as a matter of
historical fact, that it did not apply the ACCA's
residual clause in sentencing Snyder under the ACCA, ”
and instead sentenced Snyder based on the enumerated crimes
Tenth Circuit agreed with the district court that whether
Snyder was sentenced under the residual clause was a finding,
but noted that it was a finding that was based largely on
legal conclusions. Id. at *5. Thus, the court held
that “it may be possible to determine that a sentencing
court did not rely on the residual clause-even when
the sentencing record alone is unclear-by looking to the
relevant background legal environment at the time of
sentencing.” Id. (quoting United States v.
Geozos, 870 F.3d 890, 896 (9th Cir. 2017)). Based on
this analysis, the court held that Snyder was not entitled to
relief because it was clear, based on the relevant legal
background, that “there would have been little dispute
at the time of Snyder's sentencing that his two Wyoming
burglary convictions involving occupied structures fell
within the scope of the ACCA's enumerated crimes
clause”-not the residual clause. Id.
Dubois was sentenced in March 2011, less than a year after
the Tenth Circuit's decision in United States v.
Ramon Silva, 608 F.3d 663 (10th Cir. 2010). In Ramon
Silva, the court examined the same New Mexico burglary
statute at issue in Dubois' prior residential burglary
convictions. See Id. at 665 (examining N.M. Stat.
Ann. § 30-16-3). The statute at issue in Ramon
Silva also is identical to New Mexico's aggravated
burglary statute except for the aggravating factors.
Compare N.M. Stat. Ann. § 30-16-3 with
§ 30-16-4. In Ramon Silva, the court held that
because New Mexico's burglary statute was broader than
generic burglary, it would employ the modified categorical
approach to determine the character of the defendant's
burglary. 608 F.3d at 665-66. And because the indictment
charged the defendant with ...