United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on Magistrate Judge Laura
Fashing's Proposed Findings of Fact and Recommended
Disposition, Doc. 73 (Report), and movant Herman Dubois'
Objections to the Magistrate Judge's Proposed Findings
and Recommended Disposition, Doc. 78. Having reviewed the
record in this case, the Court overrules Dubois'
objections and adopts the magistrate judge's
recommendation to deny Dubois' motion.
Standard of Review
party files timely written objections to the magistrate
judge's recommendation, the district court generally will
conduct a de novo review and “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” 28 U.S.C. § 636(C);
see also Fed. R. Civ. P. 72(b)(3). To preserve an
issue for de novo review, “a party's objections to
the magistrate judge's report and recommendation must be
both timely and specific.” United States v. One
Parcel of Real Prop., With Buildings, Appurtenances,
Improvements, & Contents, Known as: 2121 E. 30th St.,
Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996).
magistrate judge recommended that the Court deny Dubois'
challenge to his sentence under the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015)-which held that that residual clause in the Armed
Career Criminal Act (ACCA) was unconstitutionally
vague-because Dubois has at least three prior convictions
that qualify as violent felonies under the ACCA without
reference to the residual clause. With respect to Dubois'
prior robbery conviction, the magistrate judge recommended
that I follow my earlier opinion in United States v.
King, 248 F.Supp.3d 1062 (D.N.M. 2017) “unless and
until the Tenth Circuit holds that simple robbery under New
Mexico law qualifies as a violent felony under the
ACCA.” Doc. 73 at 9. With respect to Dubois' two
prior residential burglary convictions, the magistrate judge
recommended that I follow the Tenth Circuit's decision in
United States v. Turrieta, 875 F.3d 1340 (10th Cir.
2017), which held that residential burglary under New Mexico
law matches the generic form of burglary and therefore is
categorically a violent felony under the enumerated crimes
clause of the ACCA. Doc. 73 at 12. With respect to
Dubois' two prior aggravated burglary convictions, the
magistrate judge recommended that I apply the analysis set
forth in United States v. Snyder, 871 F.3d 1122
(10th Cir. 2017) to determine that his aggravated burglary
convictions constituted generic burglary under the law as it
existed in 2011, when Dubois was sentenced. See Doc.
73 at 12-14, 17-21.
objects to the magistrate judge's report on three
grounds. First, he argues that because the presentence report
(PSR) listed only three prior felony convictions that
potentially qualify as violent felonies under the ACCA, not
five, the Court is precluded from relying on any conviction
not specifically identified in the PSR. Doc. 78 at 1-2.
Second, he argues that residential burglary under New Mexico
law is not a violent felony under the enumerated crimes
clause of the ACCA, and that the Court should decline to
follow the Tenth Circuit's decision in Turrieta.
Id. at 2-8. Third, he argues that simple robbery
under New Mexico law is not a violent felony under the
elements clause of the ACCA, and that the Court should
decline to follow the Tenth Circuit's recent decision in
United States v. Garcia, 877 F.3d 944 (10th Cir.
2017), which held otherwise. Id. at 8-11. None of
Dubois' arguments have merit.
respect to Dubois' first claim-that the Court may not
consider any felony convictions other than those specifically
relied upon in the PSR as predicate offenses for the ACCA
enhancement-Dubois did not raise this issue before the
magistrate judge. See Docs. 48, 61, 71. Indeed,
Dubois invited the magistrate judge to consider all
five of his prior felony convictions. In his original motion,
after discussing his prior robbery conviction and arguing
that it did not qualify as a violent felony under the
elements clause, he stated: “Mr. Dubois' four
remaining felony offenses use[d] to classify him under the
ACCA were burglaries of a dwelling house.” Doc. 48 at
13. He then argued that these four prior burglary convictions
did not qualify as violent felonies under the ACCA's
enumerated crimes clause. See Id. at 13-15. Dubois
never suggested that the Court should not consider both his
prior robbery conviction and his four prior burglary
convictions in determining whether he still qualified for the
ACCA enhancement. “[T]heories raised for the first time
in objections to the magistrate judge's report are deemed
waived.” United States v. Garfinkle, 261 F.3d
1030, 1031 (10th Cir. 2001). The Court will overrule
Dubois' objection to this aspect of the magistrate
regard to Dubois' second and third objections, which
suggest that the Court should decline to follow the Tenth
Circuit's decisions in Turrieta and
Garcia, the Court is not free to do as Dubois
suggests. “A district court must follow the precedent
of this circuit, regardless of its views concerning the
advantages of the precedent of our sister circuits.”
United States v. Spedalieri, 910 F.2d 707, 709 n.2
(10th Cir. 1990). Turrieta held that New
Mexico's residential burglary offense is categorically a
violent felony under the enumerated crimes clause of the
ACCA. 875 F.3d at 1346-47. Garcia held that New
Mexico's robbery offense is categorically a violent
felony under the ACCA's elements clause. 877 F.3d at 956.
Dubois explains why he disagrees with these opinions in order
to preserve his arguments on appeal. See Doc. 78 at
1. The Court, however, is bound by these decisions. Because
Dubois has two prior residential burglary convictions and one
prior robbery conviction, all under New Mexico law, he
qualifies for the ACCA enhancement without reference to the
ACCA's residual clause. He therefore is not entitled to
relief under Johnson.
foregoing reasons, the Court overrules Dubois' objections
THEREFORE ORDERED that the Proposed Findings of Fact and
Recommended Disposition (Doc. 73) is ADOPTED by the Court.
FURTHER ORDERED that this case is DISMISSED, and that a final
judgment be entered concurrently with this order.