United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER OVERRULING
DEFENDANT'S OBJECTIONS TO ARMED CAREER CRIMINAL
VÃZQUEZ UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Objections made by
Defendant Christopher Cook to the United States Probation
Office's recommendation in its Presentence Investigation
Report (“PSR”) that Mr. Cook be designated an
armed career criminal under 18 U.S.C. § 924(e). [Docs.
39, 43]. The government objected that the PSR should consider
an additional prior felony conviction in support of its
recommendation. [Doc. 41]. Having reviewed the PSR, the
briefs, the documents establishing Mr. Cook's prior
felony convictions, and having reviewed the relevant law and
being aware of the premises, the Court overrules the
defense's objections and finds that Mr. Cook must be
designated an armed career criminal under 18 U.S.C. §
September 9, 2016, Mr. Cook pleaded guilty to the one-count
Indictment charging Felon in Possession of a Firearm and
Ammunition, in violation of 18 U.S.C. § 922(g)(1). The
PSR recommends that Mr. Cook be designated an armed career
criminal based on the following convictions under New Mexico
law: two convictions for residential burglary in 1999 and
2001 under N.M.S.A. § 30-16-3(A), [Docs. 56-3, 56-4,
56-6], one conviction for commercial burglary in 1999 under
§ 30-16-3(B), [Docs. 56-4, 56-5], and one conviction for
two counts of attempted aggravated assault on a peace officer
in 2008, under § 30-22-22(A)(1), [Docs. 56-1, 56-2].
[Docs. 34 ¶ 21; 44 at 1]. Having applied the armed
career criminal enhancement, the PSR concludes that the
advisory guideline range is 188 to 235 months. Mr. Cook
argues that these prior convictions do not qualify as
predicate violent felonies under the ACCA.
Armed Career Criminal Act (ACCA) imposes a mandatory minimum
fifteen years incarceration for someone who violates 18
U.S.C. § 922(g) and “has three previous
convictions . . . for a violent felony or a serious drug
offense, or both, committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1). The ACCA defines
“violent felony” as either “(i) has as an
element the use, attempted use, or threatened use of physical
force against the person or another; or (ii) is burglary,
arson, extortion, [or] involves use of explosives.” In
Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551 (2015), the Supreme Court invalidated the ACCA's
residual clause, leaving only the above two categories for
predicate violent felonies. Clause (i) is known as the
“elements” clause, and clause (ii) is known as
the “enumerated offenses” clause. In determining
whether a conviction statute falls under the enumerated
offenses clause, courts “focus solely on whether the
elements of the crime of conviction sufficiently match the
elements of [the] generic [offense], while ignoring the
particular facts of the case.” Mathis v. United
States, 136 S.Ct. 2243, 2248 (2016) (citing Taylor
v. United States, 495 U.S. 575, 600-01 (1990)).
“[I]f the crime of conviction covers any more conduct
that the generic offense, then it is not an ACCA [predicate
violent felony]-even if the defendant's actual conduct
(i.e., the facts of the crime) fits within the generic
offense's boundaries.” Id.
first with Mr. Cook's burglary convictions, the Court
incorporates by reference its analysis of New Mexico's
burglary statute in United States v. Tolentino, 2017
WL 3149418 (D.N.M. Jun. 12, 2017), certificate of
appealability denied in 707 Fed.Appx. 558 (10th Cir.
Dec. 19, 2017). In Tolentino, this Court adopted the
Magistrate Court's analysis of New Mexico's burglary
statute as having a “divisible” structure,
requiring the Court to apply the “modified categorical
approach, ” in which the Court “looks to a
limited class of documents (for example, the indictment, jury
instructions, or plea agreement and colloquy) to determine
what crime, with what elements, a defendant was convicted of.
The court can then compare that crime, as the categorical
approach commands, with the relevant generic offense.”
Id. at *2 (quoting Mathis, 136 S.Ct. at
2249). The Court adopted the Magistrate Judge's
recommendation that New Mexico residential burglary is not
broader than the generic definition of burglary. Id.
at 4-6. Furthermore, the Tenth Circuit recently ruled in
United States v. Turrieta, 875 F.3d 1340 (10th Cir.
2017), that New Mexico residential burglary is a violent
felony under the ACCA. Accordingly, the Court counts Mr.
Cook's two residential burglary convictions under §
30-16-3(A) as predicate violent felonies under the ACCA.
Court has not yet ruled whether New Mexico commercial
burglary under § 30-16-3(B) is a violent felony under
the ACCA. In United States v. Luna, No. 16-CR-0343
MV, Doc. 70 at 10-14, Magistrate Judge Lourdes A.
Martínez recommended to this Court that New Mexico
commercial burglary is broader than generic burglary because
it encompasses unlawful entries into vehicles, watercrafts or
aircrafts, while the generic definition is limited to
“buildings or other structures.” Id. at
10. The Magistrate Court cited New Mexico Supreme Court
caselaw, the plain text of the statute, and the wording of
the correlative uniform jury instruction, all indicating that
New Mexico commercial burglary is not divisible, making it
broader than the generic definition of burglary. Id.
at 11-13. This Court did not rule on whether to adopt this
recommendation because additional facts came to light causing
the Magistrate Court to eliminate this analysis from its
revised Report & Recommendations. See United States
v. Luna, No. 16-CR-0343 MV, Doc. 90, 2018 WL 446660
(D.N.M. Jan. 17, 2018) (Vázquez, J.) (finding that the
defendant was properly designated under the ACCA in light of
five convictions for New Mexico residential burglary.
However, the court held in United States v. Barela,
No. 09-CR-1250 JAP, Doc. 71, 2017 WL 4280584 (D.N.M. Feb. 28,
2017) (Parker, J.) that New Mexico commercial burglary is not
divisible and therefore broader than federal generic
burglary. The court in Barela found that the
defendant's ACCA designation had been based in part on a
New Mexico commercial burglary conviction, and that the case
should be set for resentencing. Id. at *6. This
Court notes that there may be emerging consensus that New
Mexico commercial burglary is not a violent felony under the
the Court need not decide whether New Mexico commercial
burglary is a violent felony under the ACCA because Mr.
Cook's conviction for attempted aggravated assault upon a
peace officer under N.M.S.A. § 30-22-22(A)(1) clearly
falls under the “elements” clause of the ACCA.
The New Mexico statute criminalizing aggravated assault upon
a peace officer reads:
Aggravated assault upon a peace officer consists of:
(1) unlawfully assaulting or striking at a peace officer with
a deadly weapon while he is in the lawful discharge of his
(2) committing assault by threatening or menacing a peace
officer who is engaged in the lawful discharge of his duties
by a person wearing a mask, hood, robe or other covering upon
the face, head or body, or while disguised in any manner so
as to conceal identity; or
(3) willfully and intentionally assaulting a peace officer
while he is in the lawful discharge of his duties with ...