United States District Court, D. New Mexico
ORDER FOR SUPPLEMENTAL BRIEFING
FASHING UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on John Anzures's Motion to
Correct Sentence Pursuant to 28 U.S.C. § 2255. Doc.
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.
Background Facts and Procedural Posture
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).
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.
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.
Anzures's Claims and the Government's
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.
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 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.
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.
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, ” ...