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United States v. Anzures

United States District Court, D. New Mexico

October 24, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JOHN ANZURES, Defendant/Movant.

          ORDER FOR SUPPLEMENTAL BRIEFING

          LAURA FASHING UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER comes before the Court on John Anzures's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255. Doc. 40.[1] The Honorable Judith Herrera referred this case to me to recommend to the Court an ultimate disposition of the case. No. CIV 16-0697 JCH/LF, Doc. 7. 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, 871 F.3d 1122 (10th Cir. 2017) affects this case, as explained below.

         I. Background Facts and Procedural Posture

         On April 11, 2012, Anzures 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. 4, 34, 36. The probation officer who prepared Anzures's presentence report (“PSR”) determined that Anzures had 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 ¶ 39. The PSR relied on two prior convictions for aggravated assault with a deadly weapon and a commercial burglary conviction. Id. Because Anzures 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 range was 188 to 235 months in prison, rather than the ten-year maximum sentence that otherwise would have been applicable. See PSR ¶¶ 92, 93; 18 U.S.C. § 924(a)(2).

         Neither party objected to the PSR. See Doc. 38, Doc. 45 at 3. Pursuant to the plea agreement and Fed. R. Crim. P. 11(C)(1)(c), the government and Anzures had agreed that the appropriate sentence was 180 months in prison. Doc. 36 at 3. The Court accepted the plea agreement and imposed a sentence of 180 months. See Doc. 45 at 9-10; see also Doc. 39 at 2. The Court entered its judgment on July 16, 2012. See Doc. 39.

         On June 24, 2016, Anzures filed a Motion to Vacate and Correct Sentence Pursuant to 28 U.S.C. § 2255 (and Johnson v. United States). Doc. 40. The government filed its response on November 16, 2016, Doc. 48, and Anzures filed his reply on March 31, 2017, Doc. 58. The Court also permitted the government to file a surreply, to which Anzures responded on May 12, 2017. See Docs. 59-1, 63.

         II. Anzures's Claims and the Government's Response

         Anzures argues that his prior aggravated assault convictions and his prior commercial burglary conviction 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. 40. 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 argues that Anzures has at least three prior felony convictions that still qualify as violent felonies under the ACCA. Doc. 48. In addition to Anzures's two prior aggravated assault convictions and his prior commercial burglary conviction, the government also relies on Anzures's prior felony aggravated battery conviction. See id.

         III. The Supreme Court's Decision in Johnson

         The 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 clause.

         III. The Tenth Circuit's Decision in Snyder

         In Snyder, the defendant argued-just as Anzures argues here-that his prior burglary convictions under “cannot sustain the ACCA sentencing enhancement.” 871 F.3d at 1128. 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 clause. Id.

         The 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 1128-29. 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. at 1128 (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.

         Here, Anzures was sentenced in April 2012, nearly two years 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 Anzures's prior commercial burglary conviction. See Id. at 665 (examining N.M. Stat. Ann. § 30-16-3). 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 entering “a structure, a shed, ” ...


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