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United States v. Anzures

United States District Court, D. New Mexico

June 5, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JOHN ANZURES, Defendant/Movant.

          MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER comes before the Court on Magistrate Judge Laura Fashing's Proposed Findings of Fact and Recommended Disposition, Doc. 70[1] (Report), and defendant/movant John Anzures's Objections to the Magistrate Judge's Proposed Findings and Recommended Disposition, Doc. 73. Having carefully reviewed the record in this case and the relevant law, the Court overrules Anzures's objections and adopts the magistrate judge's recommendation to deny Anzures's motion.

         I. Standard of Review

         When a 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).

         II. Discussion

         The magistrate judge recommended that the Court deny Anzures's challenge to his sentence under the Supreme Court's decision in Samuel Johnson v. United States, [2] 135 S.Ct. 2551 (2015)-which held that that residual clause in the Armed Career Criminal Act (ACCA) was unconstitutionally vague-because Anzures was sentenced without reference to the residual clause. The magistrate judge concluded that at the time of Anzures's sentencing, there is no question that his commercial burglary conviction fell within the enumerated crimes clause of the ACCA. Doc. 70 at 8-13. In addition, his two prior convictions for aggravated assault with a deadly weapon fall within the ACCA's elements clause. Id. at 14-17. And, although the Court did not rely upon Anzures's prior aggravated battery conviction at his original sentencing in July 2012, it also qualifies as a violent felony under the ACCA's elements clause. Thus, if the Court erred in relying on the commercial burglary conviction, any error was harmless because the aggravated battery conviction could be substituted for the commercial burglary conviction. Id. at 17-28.

         Anzures objects to the magistrate judge's Report on numerous grounds. First, he argues that the magistrate judge erred in applying the Tenth Circuit's decision in United States v. Snyder, 871 F.3d 1122 (10th Cir. 2017), arguing that Snyder should be limited to its facts, that following Snyder will lead to arbitrary and inconsistent results, that Snyder was wrongly decided, and that application of Snyder will result in an independent due process violation. Doc. 73 at 5- 15. Second, he argues that the magistrate judge incorrectly concluded that aggravated assault with a deadly weapon in New Mexico necessarily has as an element the use, attempted use, or threatened use of physical force against another person. Id. at 15-27. Third, he argues that the magistrate judge erred in concluding that the government had not waived its right to rely on his prior aggravated battery conviction under New Mexico law as a predicate for the ACCA. Id. at 27-30. He further argues that if the Court considers this conviction, it does not qualify as a violent felony under the elements clause of the ACCA. Id. at 30-38. For the following reasons, the Court overrules Anzures's objections to the magistrate judge's Report.

         A. This Court is Bound by the Tenth Circuit's Decision in Snyder, and the Magistrate Judge Correctly Applied its Analysis.

         Anzures vehemently argues that this Court should not apply the Tenth Circuit's decision in Snyder, 871 F.3d 1122, on a variety of grounds. See Doc. 73 at 5-15. The Court, however, is not free to disregard binding Tenth Circuit precedent. “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). Indeed, the Tenth Circuit recently characterized Snyder “as the leading authority in this circuit on determining if a sentencing court used the ACCA's residual clause in sentencing.” United States v. Washington, - F.3d -, 2018 WL 2208475, *3 n.4 (10th Cir. May 15, 2018). Thus, to the extent that Anzures objects to the magistrate judge's report on the ground that Snyder was wrongly decided, or that the Court should decline to follow Snyder, or that the application of Snyder will lead to arbitrary results or a due process violation, those objections are overruled. This Court is bound to follow Snyder. Consequently, the only issue before the Court is whether the magistrate judge erred in her application of Snyder to this case.

         As a threshold matter, Anzures argues that the Court should not apply Snyder because there was no evidence in this case that the Court did not rely on the residual clause in determining that Anzures's prior commercial burglary offense was a violent felony under the ACCA. See Doc. 34 at 5; see also Id. at 10-11 (arguing that before the Supreme Court's decision in Samuel Johnson, sentencing courts routinely relied on the residual clause to determine that a prior offense qualified as a violent felony under the ACCA). He asserts that if the record is unclear or silent as to whether the Court applied the residual clause at sentencing, the defendant is entitled to relief under Samuel Johnson. See Id. at 12-13. The Tenth Circuit, however, has just rejected this approach. In Washington, the court held that on collateral review, the defendant bears the burden of showing “by a preponderance of the evidence-i.e., that it is more likely than not-”that a sentencing court relied on the residual clause in determining that the defendant was ACCA eligible to be entitled to relief under Samuel Johnson. Washington, 2018 WL 2208475, at *3. In reaching this conclusion, the court specifically rejected the analysis of both the Ninth and Fourth Circuits, which have held that a defendant need only show that the sentencing court “may have” relied on the residual clause to establish a claim under Samuel Johnson. See Id. (rejecting analysis in United States v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017) and United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017)). In short, it's Anzures's burden to show by a preponderance of the evidence that the Court relied on the residual clause in sentencing him. If he fails to make this showing, he is not entitled to relief.

         In this case, as was true in Washington, the Court did not state which clause it was relying upon when it decided that Anzures was subject to the ACCA. See generally Doc. 45 (sentencing transcript); see also PSR ¶ 39 (noting that Anzures was subject to ACCA without specifying which clause of the ACCA applied). Consequently, Anzures bears the burden of showing, based on the relevant legal environment when he was sentenced in July 2012 and on the record, that it was more likely than not that the Court relied on the residual clause in sentencing him. See Washington, 2018 WL 2208475, at *4. This he cannot do.

         In July 2012, when Anzures was sentenced, the most recent published Tenth Circuit opinion on whether a New Mexico commercial burglary conviction qualified as a violent felony under the ACCA was United States v. Ramon Silva, 608 F.3d 663 (10th Cir. 2010). As the magistrate judge correctly pointed out, Anzures was convicted under the exact same statute that was at issue in Ramon Silva. See Ramon Silva, 608 F.3d at 665. That statute provides:

Burglary 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 therein.
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 agreement, and plea colloquy to determine the character of [the defendant's] admitted burglary.” Id. at 665-66 (internal quotation marks omitted).

         The indictment to which Ramon Silva pled guilty charged him with “enter[ing] a structure, a shed.” Id. at 666. Ramon Silva argued that a shed did not “satisfy the ‘building or other structure' element in generic burglary” because it was not designed for human habitation or business and was not permanent. Id. The court rejected this argument. It reasoned that Supreme Court precedent and its own cases made clear that the “building or structure” element of generic burglary was broad, and included “both buildings and less complete structures.” Id. at 668 (emphasis and internal quotation marks omitted). It included “a building or other place designed to provide protection for persons or property against weather or intrusion, but does not include vehicles or other conveyances whose primary purpose is transportation.” Id. (quoting United States v. Cummings, 531 F.3d 1232, 1235 (10th Cir. 2008)). The court held “that the ‘building or other structure' element in generic burglary encompasses those burglaries that have been ‘committed in a building or enclosed space . . ., not in a boat or motor vehicle.'” Id. at 668-69 (quoting Shepard v. United States, 544 U.S. 13, 16 (2005)).

         Applying the analysis of Ramon Silva to this case, there can be little doubt that when the Court sentenced Anzures, his commercial burglary conviction fell within the scope of the ACCA's enumerated crimes clause. Anzures pled guilty to an indictment that charged him with “enter[ing] a structure, New Mexico Storage and Lock, located at 220 Isleta SW, without authorization or permission, with intent to commit any felony or a theft therein, ” in violation of N.M. Stat. Ann. § 30-16-3(B). Doc. 40-1 at 1. That indictment makes clear that the place Anzures entered was a structure designed to protect property from intrusion, and was not a boat, vehicle, airplane, or other conveyance whose primary purpose was transportation. See Id. Thus, the Court's application of the modified categorical approach as it existed in 2012 would have resulted in a determination that Anzures's commercial burglary conviction constituted generic burglary. Anzures has failed to establish by a preponderance of the evidence that the Court relied on the residual clause in finding that Anzures's commercial burglary conviction was a violent felony under the ACCA. The magistrate judge correctly applied the Snyder analysis to this case.

         Anzures argues that Ramon Silva and other cases that applied the modified categorical approach in a similar fashion “may have represented a trend in the circuit at the time[, ] but they were not controlling law.” Doc. 73 at 6. He says that the Tenth Circuit's earlier decision in United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008) highlighted the intra-circuit split on the correct application of the modified categorical approach, and that Zuniga-Soto made clear that “when faced with an intra-circuit conflict, [courts] should follow earlier, settled precedent over a subsequent deviation therefrom.” Id. at 1121 (quoting Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996)). Zuniga-Soto, however, dealt with the application of the modified categorical approach to the determination of whether the Texas crime of assault on a public servant had as an element the use, attempted use, or threatened use of physical force. Id. at 1113. The court noted that some prior Tenth Circuit panels had used the modified categorical approach to determine whether the facts underlying a defendant's prior conviction actually involved the use of force, which was impermissible. See Id. at 1121. Instead, courts only were permitted to examine specified judicial records to determine which part of a statute had been charged against a defendant, which in turn determined which part of the statute a court should examine on its face. Id.

         Nothing about the holding in Ramon Silva is obviously in conflict with Zuniga-Soto, and there is no reason to think that the Court would have relied on Zuniga-Soto-which had nothing to do with either burglary or the enumerated crimes clause of the ACCA-to determine that Anzures's prior commercial burglary conviction did not fall within the enumerated crimes clause of the ACCA. In 2013, after Anzures was sentenced, the Supreme Court explained the modified categorical approach as follows:

We have previously approved a variant of this method-labeled (not very inventively) the “modified categorical approach”-when a prior conviction is for violating a so-called “divisible statute.” That kind of statute sets out one or more elements of the offense in the alternative-for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.

Descamps v. United States, 570 U.S. 254, 257 (2013). This is the analysis that the court in Ramon Silva applied. The New Mexico burglary statute set forth the elements of commercial burglary in the alternative, stating that burglary involves the unlawful entry into “any vehicle, watercraft, aircraft or other structure.” N.M. Stat. Ann. § 30-16-3(B). The court examined the charging document only to determine whether the defendant was convicted of the part of the statute prohibiting entry into a “structure, ” which the court held constituted generic burglary, verses some other alternative, i.e., a vehicle, watercraft, or aircraft. See Ramon Silva, 608 F.3d at 665-69. It was not until the Supreme Court's 2016 decision in Mathis v. United States, 136 S.Ct. 2243 (2016), which distinguished between the elements of a crime from the means of committing that crime, see Id. at 2249-50, that the Tenth Circuit had any reason to question its approach in Ramon Silva. See Washington, 2018 WL 2208475, at *4 n.5 (noting that Ramon Silva was abrogated by Mathis).

         Indeed, Anzures cites another case that makes it even more obvious that in 2012, as the modified categorical approach was understood then, the Court found that his commercial burglary conviction fell within the enumerated crimes clause of the ACCA, not the residual clause. See Doc. 73 at 6 (citing United States v. King, 422 F.3d 1055, 1057 (10th Cir. 2005) to support the proposition that New Mexico's commercial burglary statute is not categorically generic burglary). King presents facts remarkably similar to this case. In King, the sentencing court enhanced the defendant's sentence under the ACCA based in part on the defendant's prior conviction for commercial burglary under the same statute at issue here and in Ramon Silva. King, 422 F.3d at 1056, 1058. The court held that because New Mexico's commercial burglary statute is broader than generic burglary, the sentencing court properly could employ the modified categorical approach and examine specified court documents to determine whether the defendant was convicted of generic burglary. Id. at 1057. The defendant in King pled guilty to an indictment that charged him with entering “a structure, American Self-Storage Unit # 136 . . ., without authorization or permission, with ...


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