United States District Court, D. New Mexico
PROPOSED FINDINGS OF FACT AND RECOMMENDED
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. Having reviewed the
submissions of the parties and the relevant law, I recommend
that the Court deny Anzures's motion.
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's base
offense level was 24 under USSG § 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.
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).
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
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.
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.”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.
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.
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.
The Supreme Court's Decision in Johnson II
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.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
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.
The Tenth Circuit's Decision in Snyder
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.
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 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.
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
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.
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.
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
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.
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).
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
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
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 ...