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United States v. Cook

United States District Court, D. New Mexico

March 2, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
CHRISTOPHER COOK, Defendant.

          MEMORANDUM OPINION AND ORDER OVERRULING DEFENDANT'S OBJECTIONS TO ARMED CAREER CRIMINAL DESIGNATION

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         THIS 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. § 924(e).

         BACKGROUND

         On 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.

         DISCUSSION

         The 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.

         Dealing 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.

         This 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 ACCA.

         However, 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:

         A. 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 duties;
(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 ...

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