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United States v. Anzures

United States District Court, D. New Mexico

November 30, 2017

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

          PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION

          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. Having reviewed the submissions of the parties and the relevant law, I recommend that the Court deny Anzures's motion.

         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's base offense level was 24 under USSG[2] § 2K2.1(a)(2) because he committed the offense after having sustained at least two prior felonies that were crimes of violence. PSR ¶ 33. Anzures received a four-level enhancement pursuant to USSG § 2K2.1(b)(6) because he used or possessed the firearm in connection with another felony offense, namely aggravated burglary, kidnapping, armed robbery, and bribery of a witness. PSR ¶ 34. Without the armed career criminal enhancement, Anzures's adjusted offense level would have been 28. PSR ¶ 38.

         However, because Anzures had three prior violent felony convictions, he 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. As a result, Anzures's offense level became 34. Id. He received a three-level reduction for acceptance of responsibility under USSG § 3E1.1. PSR ¶ 40. His total offense level was 31, and his criminal history category was VI, which resulted in an advisory guideline sentencing range of 188 to 235 months in prison. PSR ¶¶ 41, 58, 93. 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. Anzures did not appeal his sentence.

         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, 61, 63.

         On October 24, 2017, I directed the parties to file simultaneous supplemental briefs to address the Tenth Circuit's decision in United States v. Snyder, 871 F.3d 1122 (10th Cir. 2017). Doc. 65. In Snyder, the Tenth Circuit 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.”[3]Id. at 1128 (quoting United States v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017)). The court further 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. I asked the parties to address the question of whether, based on the relevant legal background at the time Anzures was sentenced, the Court could determine that the he was not sentenced using the ACCA's residual clause. See Doc. 65. The parties filed their supplemental briefs on November 13, 2017. Docs. 67, 69.

         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.

         In his supplemental brief, Anzures urges the Court to limit Snyder to its facts and refuse to extend its reasoning to his situation because it would perpetuate a misapplication of the law. See Doc. 69. The government argues that, under Snyder, the Court can consider the law in effect when Anzures was sentenced, and if binding precedent at that time established that any of his prior convictions constituted violent felonies, the Court may conclude that the sentencing court relied on that precedent in determining that Anzures qualified for the ACCA. See Doc. 67. Based on the analysis set forth in Snyder, I find that Anzures's prior commercial burglary conviction would have qualified as generic burglary in 2012 when he was sentenced. But, even without resorting to the analysis in Snyder, Anzures still has three prior felonies that qualify as violent felonies under the ACCA. Anzures therefore is not entitled to relief.

         III. Discussion

         A. The Supreme Court's Decision in Johnson II

         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) (Johnson II), the Supreme Court struck down the residual clause as unconstitutionally vague, but it left intact the elements clause and the enumerated crimes clause.[4]The following year, the Court held that Johnson II 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 II, a defendant must have been sentenced under the residual clause of the ACCA, not the elements clause or the enumerated crimes clause.

         Anzures has four prior felony convictions that potentially qualify as violent felonies under the ACCA. See Doc. 36 at 4-5, 8-9 (plea agreement acknowledging and listing Anzures's prior felony convictions); Docs. 48-1, 48-2; PSR ¶¶ 39, 43, 44, 46, 53. They are two convictions for aggravated assault, one conviction for commercial burglary, and one conviction for aggravated battery, all under New Mexico law. See Id. The probation officer who prepared the presentence report relied on the two convictions for aggravated assault and the commercial burglary conviction. PSR ¶ 39. Anzures objects to the Court considering his aggravated battery conviction. Doc. 58 at 7-10. But assuming that the Court can consider the aggravated battery conviction, the parties agree that both it and the aggravated assault convictions must satisfy the ACCA's elements clause to qualify as a violent felony. See Doc. 40 at 4-7; Doc. 48 at 4-5, 13- 17; Doc. 58 at 10-16. For Anzures's burglary conviction to qualify as a violent felony, it must constitute generic burglary under Taylor v. United States, 495 U.S. 575, 599 (1990). See Doc. 40 at 7-15; Doc. 48 at 5-13. The Court must apply the “categorical approach” to determine whether a prior conviction falls within the ACCA's elements clause or the enumerated crimes clause. Descamps v. United States, 133 S.Ct. 2276, 2283 (2013); Taylor, 495 U.S. at 599-602. To further complicate matters, the Tenth Circuit's recent decision in Snyder, 871 F.3d 1122, permits the Court to examine the state of the law at the time Anzures was sentenced to determine whether it's clear that the Court did not rely on the residual clause in sentencing him.

         B. The Tenth Circuit's Decision in Snyder

         In Snyder, the defendant argued-just as Anzures argues here-that his prior burglary convictions “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 that formed the basis of Anzures's 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, ” his crime constituted generic burglary. Id. at 666. The defendant therefore was subject to the ACCA's enhanced sentencing provisions under the enumerated crimes clause. Id. at 668-69.

         Although the court in Snyder noted that this type of analysis “has since been abrogated by the Supreme Court's decision in Mathis v. United States, __ U.S. __, 136 S.Ct. 2243 (2016), ” Snyder, 871 F.3d at 1129 n.4, it nonetheless appears it would have been the analysis that the district court would have been required to employ at the time Anzures was sentenced. Thus, the question becomes whether, given the Tenth Circuit's decision in Ramon Silva, there is any dispute that when Anzures was sentenced, his prior burglary conviction fell within the scope of the ACCA's enumerated crimes clause, not the residual clause.

         The court in Ramon Silva also examined the same New Mexico aggravated assault statute that is at issue here. Although the court focused on “‘apprehension causing' aggravated assault” under N.M. Stat. Ann. § 30-3-2(A), the court held that this type of aggravated assault “create[d] a commensurate threat of physical force such that the crime qualifies as a violent felony under the ACCA.” Ramon Silva, 608 F.3d at 670, 672. The court further held that “[p]urposefully threatening or engaging in menacing conduct toward a victim, with a weapon capable of causing death or great bodily harm, threatens the use of force capable of causing physical pain or injury, ” and “would always include as an element the threatened use of violent force.” Id. at 672 (internal quotation marks omitted). This holding similarly raises the question of whether there is any dispute that when Anzures was sentenced, his prior aggravated assault conviction fell within the scope of the ACCA's elements clause, not the residual clause.

         C. At the Time of Anzures's Sentencing, There is No Question that His Conviction for Commercial Burglary Fell Within the Enumerated Crimes Clause of the ACCA.

         In his supplemental brief, Anzures does not contest that his prior commercial burglary conviction would have constituted generic burglary under the analysis employed by Ramon Silva. See generally Doc. 69. Instead, he argues that the Court should not apply the Snyder analysis because it perpetuates a misapplication of the law, and because the record of his sentencing is so sparse. See Id. at 2-7. He also argues that Snyder's holding should be limited because it misapplied the Ninth Circuit's reasoning in Geozos, on which Snyder relied. Id. at 7- 10. Anzures's arguments make clear, however, that his challenge to his sentence-at least to the extent that his sentence is based on his prior commercial burglary conviction-is based on Mathis, not Johnson II.

         1. Employing the Analysis that the District Court Would have been Required to Employ in 2012, the Court can Determine that the Sentencing Court did not Rely on the Residual Clause in Finding that Anzures's Prior Burglary Conviction was a Violent Felony Under the ACCA.

         In Taylor, the Supreme Court held that an offense constitutes “burglary” under § 924(e) if, regardless of its exact definition, it has the basic elements of a “generic” burglary-i.e., an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. 495 U.S. at 599. In determining whether a defendant's prior conviction meets this generic definition of burglary, the Court employs the categorical approach, which “look[s] only to the fact of conviction and the statutory definition of the prior offense.” Id. at 602. If the statutory definition of the prior conviction “substantially corresponds to ‘generic' burglary, ” the inquiry is at an end. Id. If the statutory definition of the prior conviction proscribes a range of conduct that is broader than generic burglary, the Court applies the modified-categorical approach, which “go[es] beyond the mere fact of conviction” and determines whether “the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.” Id. In “pleaded cases, ” the Court looks to “the statement of factual basis for the charge, shown by a transcript of plea colloquy or by a written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.” Shepard v. United States, 544 U.S. 13, 20 (2005).

         As already mentioned, Anzures was convicted under the exact same statute that was at issue in Ramon Silva, decided in 2010. See Ramon Silva, 608 F.3d at 665. That statute provides:

         Burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.

A. Any person who, without authorization, enters a dwelling house with intent to commit any felony or theft therein is guilty of a third degree felony.
B. Any person who, without authorization enters any vehicle, watercraft, aircraft or other structure, movable or immovable, with intent to commit any felony or theft therein is guilty of a fourth degree felony.

N.M. Stat. Ann. § 30-16-3. In Ramon Silva, the court noted that “New Mexico courts have interpreted the phrase ‘other structure' in subsection B ‘to require an enclosure similar to a vehicle, watercraft, aircraft, or dwelling.'” 608 F.3d at 665 (quoting State v. Foulenfont, 1995-NMCA-028, ¶ 11, 119 N.M. 788, 791, 895 P.2d 1329, 1332). And because § 30-16-3(B) included the unlawful entry of locations that went beyond the generic definition of burglary, the court employed the modified categorical approach (as understood in 2010) and examined the “charging document, plea ...


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