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United States v. Luna

United States District Court, D. New Mexico

January 17, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
RICHARD ELIZARDO LUNA, Defendant/Movant.

          ORDER ADOPTING REPORT AND RECOMMENDATION, OVERRULING OBJECTIONS, DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE, AND DISMISSING CASE WITH PREJUDICE

          MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Richard Luna's objections to Magistrate Judge Kevin R. Sweazea's third amended report filed on August 8, 2017, recommending that the Court deny Luna's motion to vacate, correct, or set aside sentence. [See Docs. 57, 61, 84, & 86].[1] Pursuant to 28 U.S.C. § 636(b), the Court has made a de novo determination of all matters to which Luna objected. Being fully advised, the Court OVERRULES Luna's objections, ADOPTS the magistrate judge's third amended proposed findings and recommended disposition (“PFRD”), and DISMISSES the case with prejudice.

         BACKGROUND

         On December 5, 2012, Luna pleaded guilty to possessing a firearm and ammunition as a felon. [Doc. 42]. Under the felon-in-possession statute, Luna's conviction carried a maximum sentence of ten years. See 18 U.S.C. §§ 922(g)(1) & 924(a)(2). However, because Luna had previously committed more than three “violent felonies, ” as reflected by multiple convictions for burglary in New Mexico listed in a presentence report (“PSR”), Luna was considered an “armed career criminal.” [CV Doc. 21-1, p. 11 (listing past convictions)]. As such, the Armed Career Criminal Act (“ACCA”) mandated a harsher prison term of at least fifteen years. See 18 U.S.C. § 924(e)(1)-(2). Luna was sentenced to the fifteen-year minimum on April 22, 2013. [Doc. 53].

         Two years later, the Supreme Court invalidated the ACCA's “residual clause, ” see Johnson v. United States, 576 U.S.__, 135 S.Ct. 2551 (2015), which forms the basis for Luna's collateral attack under Section 2255. The residual clause refers to the second sentence of Section 924(e)(2)(B)(ii) that broadly defines “violent felony” as “otherwise involv[ing] conduct that presents a serious risk of physical injury to another.” 18 U.S.C §924(e)(2)(B)(ii). Important here is that after Johnson, an armed career criminal who received the fifteen-year minimum because of the residual clause is entitled to resentencing.[2] By contrast, a career criminal sentenced on the basis of the ACCA's other, disjunctive definitions of “violent felony” is unaffected by Johnson: the “force clause, ” which includes “the use, attempted use, or threatened use of physical force against . . . another”; and the “enumerated clause” identifying specific offenses: “burglary, arson, or extortion . . .[or crimes] involve[ing] explosives.” 18 U.S.C. § 924(e)(2)(B)(i)-(ii).

         In his motion for resentencing, Luna argued that his past convictions for burglary under New Mexico law fall into the former camp. Each of the four PFRDs issued by the magistrate judges agreed that Johnson invalidated Luna's conviction for non-residential burglary under N.M. Stat. Ann. § 30-16-3(B), but concluded Luna's other convictions for residential burglary, N.M. Stat. Ann. § 30-16-3(A), satisfied the enumerated clause. [See Docs. 70, 76, 81, & 84]. What accounts for the multiple PFRDs is that Luna committed five residential burglaries in New Mexico, but not all of those convictions were described in paragraph 28, the specific part of the PSR dedicated to the ACCA. [CV Doc. 21-1].[3] Judge Martinez initially recommended that Luna be resentenced, reasoning that without the commercial burglary offense, Luna only had two qualifying convictions for residential burglary, one short of the ACCA's threshold. [Doc. 70]. When the Government objected that there were multiple additional qualifying crimes other than those set forth in paragraph 28 of the PSR, Judge Martinez amended her PFRD, recommending that the Court use Luna's other convictions for residential burglary listed in the “criminal history” section of the PSR. [Doc. 76].

         When Judge Martinez retired, Judge Sweazea was reassigned the case and entered a second-amended PFRD. [Doc. 81]. Judge Sweazea agreed with the analysis contained in Judge Martinez's PFRDs, but reasoned that due process required Luna be given the opportunity at resentencing to dispute any conviction not specifically listed in paragraph 28. [Id.]. In objecting to the second-amended PFRD, the Government pointed out that paragraph 28 actually identified three separate convictions for residential burglary. [Doc. 82]. Although in several rounds of briefing the parties failed to point out this critical fact, Judge Sweazea determined it was dispositive, assuaged any due process concerns, and recommended in a third-amended PFRD that the Court deny Luna's Section 2255 motion. [Doc. 84]. Luna objects to this final PFRD arguing, in sum, that Judge Sweazea misapplied the law in concluding that his New Mexico convictions for residential burglary are violent felonies under the ACCA and that Luna had fair notice of the convictions upon which the ACCA enhancement would be based. [Doc. 86].

         STANDARD

         The Court undertakes “a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). “[O]bjections to the magistrate judge's report must be both timely and specific to preserve an issue for de novo review by the district court[.]” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). The objections must be “sufficiently specific to focus the district court's attention on the factual and legal issues that are truly in dispute.” Id. Likewise, “theories raised for the first time in objections . . . are deemed waived.” United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001) (citation omitted).

         DISCUSSION

         Luna's objections comprise two alternative arguments that the magistrate judge misapplied the law: residential burglary under N.M. Stat. Ann. § 30-16-3(A) is not a violent felony under the ACCA, and even if it were, the Court may only count two such convictions against him for purposes of sentencing. The Court disagrees and overrules Luna's objections.

         Residential Burglary

         Luna asserts that residential burglary, N.M. Stat. Ann. § 30-16-3(A), is not a violent felony under the enumerated clause because the offense encompasses more conduct than the federal “generic” version of burglary. Luna would be correct, however, only if a comparison under the categorical approach demonstrates that the elements of residential burglary-or “things the prosecution must prove to sustain a conviction”- are broader than federal burglary, meaning those elements “cover[] []more conduct than the generic offense.” Mathis v. United States, __ U.S.__, __, 136 S.Ct. 2243, 2248 (2016) (citations omitted).[4]

         As the Court understands his argument, Luna acknowledges a statute criminalizing burglary of a home would likely be a categorical match. It is Section 30-16-3(A)'s use of the term “dwelling house” that gives Luna pause. See N.M. Stat. Ann. § 30-3-16-3(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.”) (Emphasis added). According to Luna, “dwelling house” encompasses boats and vehicles used for habitation that federal law would not recognize as generic burglary. Compare N.M. Rule Ann. 14-1631 (defining “dwelling house” for purposes of the Uniform Jury Instructions as “any structure, any part of which is customarily used as living quarters”) wit ...


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