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United States v. Marquez

United States District Court, D. New Mexico

October 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
LEONARD G. MARQUEZ, Defendant.

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         On May 5, 2017, United States Magistrate Judge Stephen M. Vidmar filed Proposed Findings and Recommended Disposition (PFRD) (Civ. No. 16), recommending that Defendant Leonard Marquez's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 (Civ. No. 1) be denied. Marquez objected to the PFRD on July 25, 2017. (Civ. No. 21). The government neither objected to the PFRD nor responded to Marquez's objections. On September 18, 2017, this case was reassigned from Senior District Judge C. Leroy Hansen to Senior District Judge James A. Parker. The Court conducted a de novo review of the portions of the PFRD to which Marquez objects and will overrule the objections, adopt the PFRD, deny Marquez's Motion, and dismiss this § 2255 proceeding with prejudice.

         Background

         On February 16, 2007, Marquez was charged with being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2). Presentence Report (“PSR”) at 3. On September 8, 2010, he pleaded guilty to the offense. Id

         The PSR stated that Marquez qualified as an armed career criminal under the Armed Career Criminal Act (“ACCA”) because he had at least three prior violent felony convictions: two for New Mexico residential burglary, [1] NMSA 1978, § 30-16-3(A), and one for New Mexico aggravated assault with a deadly weapon, NMSA 1978, § 30-3-2(A), and one for New Mexico attempted robbery, NMSA 1978, §§ 30-16-2, 30-28-1. The PSR indicated that all four convictions qualified as violent felonies under § 924(e)(2)(B) of the ACCA. PSR at 7-8, 31.

         With the armed career criminal enhancement, Marquez's offense level was 33. Id. at 7. Based on a downward adjustment for acceptance of responsibility, his total offense level was 30. With a criminal history category of VI, Marquez's guideline imprisonment range was 168-210 months. Id. at 8, 31. On March 29, 2011, the Court sentenced Marquez to 180 months imprisonment. Marquez did not appeal his sentence. This is Marquez's first § 2255 Motion.

         United States Supreme Court decisions of Johnson and Welch

         In Johnson v. United States (“Johnson II”), 135 S.Ct. 2551, 2557 (2015), the Supreme Court held that the so-called “residual clause” of the definition of “violent felony” in the ACCA was unconstitutionally vague. The ACCA defined “violent felony” as follows:

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; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The closing words of this definition, italicized above, have come to be known as the “residual clause.”

         In Welch v. United States, 136 S.Ct. 1257, 1268 (2016), the Supreme Court determined that the ruling in Johnson II was substantive (as opposed to procedural) and, therefore, had “retroactive effect in cases on collateral review.” Accordingly, Welch opened the door for individuals sentenced under the residual clause of the ACCA's violent-felony definition to move under § 2255 to vacate their sentences as unconstitutional.

         Summaries of Parties' Arguments and Judge Vidmar's PFRD

         Marquez argued, in part, that his prior convictions only qualified as violent felonies under the now-invalidated residual clause and that, he is, therefore, entitled to be resentenced. The government contended that his two residential burglary convictions qualified under the ACCA's so-called “enumerated clause, ” which designated certain specific crimes as violent felonies.[2]Response at 5 (Civ. No. 8). The government asserted that whether Marquez's third conviction for aggravated assault with a deadly weapon qualified as an ACCA violent felony under the so-called “force clause” of the ACCA depended on the Tenth Circuit's decision in United States v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016), cert. denied, 137 S.Ct. 1214 (2017), which was then pending.[3], [4] Id. at 2-4.

         A. New Mexico residential burglary is a violent felony under the enumerated clause of § 924(e)(2)(B)

         In finding that Marquez's two earlier convictions for New Mexico residential burglary qualified as ACCA violent felonies, Judge Vidmar first determined that the pertinent state statute, NMSA § 30-16-3, was divisible and then applied the modified categorical approach to decide that Marquez was convicted for New Mexico residential burglary under § 30-16-3(A). PFRD at 8-9. After a thorough analysis, Judge Vidmar rejected Marquez's broad interpretation of New Mexico's residential burglary statute, id. at 11-20, concluding that the burglary of a dwelling under § 30-16-3(A) “meets the generic definition of ‘burglary'” and that ...


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