STEPHAN M. VIDMAR, Magistrate Judge.
THIS MATTER is before me on Defendant Marcos Sanchez's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. [§] 2255 (and Johnson v. United States), filed October 23, 2015 [CR Doc. 104; CV Doc. 1], and his Amended Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255, filed August 8, 2016 [CR Doc. 112; CV Doc. 7]. Mr. Sanchez filed a supplement to his amended motion on October 3, 2016. [CR Doc. 117; CV Doc. 12]. The United States responded on October 10, 2016. [CR Doc. 118; CV Doc. 13]. Mr. Sanchez replied on October 20, 2016. [CR Doc. 121; CV Doc. 16]. The Honorable James O. Browning, United States District Judge, referred this matter to me for analysis and a recommended disposition. [CR Doc. 106; CV Doc. 2]. Having considered the briefing, the relevant portions of the underlying criminal record, the relevant authorities, and being otherwise fully advised in the premises, I find that Mr. Sanchez's prior convictions for violating NMSA 1978, § 30-16-3(A) qualify as violent felonies under the enumerated clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B). Because I find that Mr. Sanchez was not sentenced under the residual clause of § 924(e)(2)(B), his sentence is not unconstitutional and he is not entitled to re-sentencing pursuant to Johnson v. United States and Welch v. United States. His motion should be denied.
On August 25, 2004, Mr. Sanchez was charged with one count of being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2). Presentence Report ("PSR") at 2. On July 17, 2006, he pleaded guilty to the offense. Id. United States Probation and Pretrial Services submitted his PSR to the Court on October 3, 2006. Id. at 1. The PSR provided that Mr. Sanchez qualified as an armed career criminal under the ACCA because he had three prior violent felony convictions, all for residential burglary in New Mexico. Id. at 7, 8, 10-11. With the Armed Career Criminal enhancement, Mr. Sanchez's offense level was 33.
Mr. Sanchez appealed on grounds unrelated to his sentence. The Tenth Circuit Court of Appeals affirmed his conviction on March 17, 2008. [CR Doc. 100-1]. The Supreme Court denied Mr. Sanchez's petition for a writ of certiorari on October 6, 2008. [CR Doc. 102-1]. The instant case is his first motion under § 2255.
Pursuant to 28 U.S.C. § 2255(a), a "prisoner in custody" pursuant to a federal conviction may "move the court" "to vacate, set aside or correct the sentence" if it "was imposed in violation of the Constitution or laws of the United States."
In Johnson v. United States, 135 S.Ct. 2551, 2557 (2015), the Supreme Court held that the so-called residual clause of the definition of "violent felony" in the ACCA was unconstitutionally vague. The ACCA defined "violent felony" as follows:
18 U.S.C. § 924(e)(2)(B) (emphasis added). The closing words of this definition, italicized above, have come to be known as the "residual clause."
The Court explained that the residual clause left "grave uncertainty" about "deciding what kind of conduct the `ordinary case' of a crime involves." Johnson, 135 S. Ct. at 2557. That is, the residual clause "denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges" because it "tie[d] the judicial assessment of risk to a judicially imagined `ordinary case' of a crime, not to real-world facts or statutory elements." Id. Second, the ACCA's residual clause left "uncertainty about how much risk it takes for a crime to qualify as a violent felony." Id. at 2558. By combining these two indeterminate inquiries, the Court held, "the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates." Id. On that ground it held the residual clause void for vagueness. Id.
Soon thereafter, the Court determined that the ruling in Johnson was substantive (as opposed to procedural) and, therefore, had "retroactive effect in cases on collateral review." Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Accordingly, Welch opened the door for individuals sentenced under the residual clause of the ACCA's violent-felony definition to move to vacate their sentences as unconstitutional under § 2255.
Mr. Sanchez was designated as an armed career criminal—and thus, his sentence was enhanced—based on three prior felony convictions for residential burglary in New Mexico, NMSA 1978, § 30-16-3(A). PSR at 7, 8, 10-11; [Doc. 7]
Mr. Sanchez argues that his burglary convictions could have qualified as violent felonies (and, thus, counted toward his armed career criminal designation) only under the now-invalidated residual clause, entitling him to be resentenced. [Doc. 7] at 3. The United States argues that the residential burglary convictions qualify as violent felonies even absent the unconstitutionally vague residual clause. [Doc. 13] at 2. The government argues that Mr. Sanchez's residential burglary convictions qualify as violent felonies under the ACCA's so-called "enumerated clause," which designates certain specific crimes, including burglary, as violent felonies.
The enumerated clause of § 924(e)(2)(B)(ii) provides that an underlying felony conviction is a "violent felony" if it "is burglary, arson, or extortion, [or] involves use of explosives." To determine whether a past conviction qualifies as one of the offenses enumerated in § 924(e)(2)(B)(ii), courts compare the elements of the crime of conviction with the elements of the "generic" version of the listed offense—in other words, "the offense as commonly understood." Descamps v. United States, 133 S.Ct. 2276, 2281 (2013). A prior conviction qualifies as an enumerated ACCA predicate offense only if its elements are the same as, or narrower than, those of the generic offense. Id.; Mathis v. United States, 136 S.Ct. 2243, 2247 (2016). The definition and scope of the offenses enumerated in the ACCA's definition of "violent felony" are questions of federal law. See United States v. Rivera-Oros, 590 F.3d 1123, 1126 (10th Cir. 2009).
To determine whether a prior conviction is sufficiently similar to a generic offense, courts generally apply the so-called "categorical approach." That is, courts consider only 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, 136 S. Ct. at 2248 (citing Taylor v. United States, 495 U.S. 575, 600-01 (1990)). If the underlying statute of conviction "sweeps more broadly than the generic crime," the prior conviction cannot qualify as an ACCA predicate, irrespective of whether the defendant's actual conduct in committing the crime would qualify under the generic offense. Descamps, 133 S. Ct. at 2283.
Some statutes, however, have a more complicated structure, making the comparison of elements more difficult and requiring a slightly different approach. A single statute may be "divisible"—it may list elements in the alternative—and thereby define multiple crimes. Id. at 2281. When a statute defines multiple crimes by listing alternative elements, courts undertake the "modified categorical approach" to determine which of the multiple alternative elements listed in the statute applied to convict the defendant. Id. Under the modified categorical approach, a sentencing court looks to the record of conviction (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of. Then, the court is able to compare the elements of that crime, as the categorical approach commands, with the elements of the relevant generic offense. Id.
The Supreme Court has provided guidance for determining whether a statute is indivisible or divisible and, thus, whether to implement the modified categorical approach first or proceed directly to the categorical approach. Mathis, 136 S. Ct. at 2256-57. The central question is whether the statute lists multiple elements disjunctively, thereby creating multiple different crimes (i.e., a divisible statute, triggering the modified categorical approach), or whether it enumerates various factual means of committing a single element (i.e., an indivisible statute, requiring the categorical approach). Id. at 2249-50. If a state court decision "definitively answers the question," then a sentencing judge "need only follow what it says." Id. at 2256. Or, "the statute on its face may resolve the issue." Id. If statutory alternatives carry different punishments, then they must be elements (and, thus, the statute divisible, triggering the modified categorical approach). Id. (citing Apprendi v. New Jersey, 530 U.S. 466 (2000)). "Conversely, if a statutory list is drafted to offer `illustrative examples,' then it includes only a crime's means of commission." Id.
I find that Mr. Sanchez's statute of conviction, § 30-16-3, is divisible. The statute reads:
§ 30-16-3. The statute is divisible into subsections A and B, which separate the alternative elements. A plain-text reading of the statute shows that New Mexico burglary is divided into residential burglary and all other types of burglary. Furthermore, the subsections carry different penalties. Subsection A, burglary of a "dwelling house," is a third degree felony. Id. Subsection B, burglary of a "vehicle, watercraft, aircraft or other structure, movable or immovable," is a fourth degree felony. Id. As Mathis instructs, statutory alternatives carrying different penalties "must be elements." 136 S. Ct. at 2256 (citing Apprendi, 530 U.S. 466). The statute is divisible into subsection A (residential burglary) and subsection B (non-residential burglary).
Because I find the statute is divisible, I apply the modified categorical approach to determine whether Mr. Sanchez was convicted under subsection A or subsection B. Id. at 2249 (describing the modified categorical approach). Neither party has submitted documentation of Mr. Sanchez's prior convictions to the Court, but both parties describe his prior convictions as being for "residential burglary" under § 30-16-3(A). [Doc. 7] at 2-3, 5; [Doc. 13] at 5-6. Additionally, the PSR characterizes Mr. Sanchez's prior burglary convictions as residential burglary convictions under subsection A. PSR at 7, 8, 10-11. Therefore, I find that Mr. Sanchez was convicted under subsection A of the statute.
Having concluded that Mr. Sanchez's prior convictions are for New Mexico residential burglary, I next "compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime." Descamps, 133 S. Ct. at 2281. "A state statute does not need to match the generic definition verbatim." Rivera-Oros, 590 F.3d at 1133. It need only "correspond[] in substance to the generic meaning." Taylor, 495 U.S. at 599. "[T]o find that a state statute creates a crime outside the generic definition . . . . requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime." Rivera-Oros, 590 F.3d at 1133 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). I find that New Mexico residential burglary—the unauthorized entry of a dwelling house with the intent to commit any felony or theft therein—is substantially the same as, or narrower than, generic burglary.
The parties agree that Taylor sets out the elements of generic burglary: "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." 495 U.S. at 599; see also Mathis, 136 S. Ct. at 2248 (quoting Taylor for the generic definition); [Doc. 7] at 6 (quoting Taylor, 495 U.S. at 599); [Doc. 13] at 3 (quoting Mathis, 136 S. Ct. at 2248). The parties dispute the breadth of the locational element of both generic burglary and New Mexico residential burglary. That is, they dispute whether the definition of "dwelling house" in subsection A of the New Mexico statute is broader than the definition of "building or other structure" in the generic offense.
Mr. Sanchez argues that the locational element of New Mexico residential burglary, "dwelling house," is broader than that of generic burglary, "building or other structure." [Doc. 7] at 9-10; [Doc. 12] at 3-5; [Doc. 16] at 2-9. He argues that New Mexico residential burglary is broad and encompasses the burglary of any of the structures listed in either subsection A or subsection B of the statute ("any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable"), provided the structure is used for habitation. [Doc. 16] at 2-3, 7-8. Therefore, Mr. Sanchez argues, a person could be convicted under subsection A for burglarizing a movable vehicle in which someone is living. Id. at 3, 8 (arguing that a "dwelling house" could be a "watercraft, trailer, mobile home, car, RV, or even tractor-trailer truck in which a person is customarily living"); [Doc. 7] at 9-10. He further contends that generic burglary is limited to the burglary of a building or other "enclosed space" that is not movable. [Doc. 7] at 9-10; [Doc. 16] at 7 (citing Taylor, 495 U.S. at 598, and Shepard v. United States, 544 U.S. 13, 15-16 (2005)). He asserts that generic burglary does not encompass the burglary of, for example, "a boat or motor vehicle." [Doc. 16] at 7 (internal quotation marks omitted). Because, as he maintains, generic burglary does not accommodate the burglary of movable structures such as motor vehicles, even where used as habitations, New Mexico residential burglary is overbroad. Thus, Mr. Sanchez argues, his prior convictions for residential burglary cannot qualify as violent felonies under the enumerated clause of the ACCA.
The United States disagrees, arguing that subsection A should be cabined by its plain language, which refers only to burglary of a "dwelling house" and does not refer to burglary of "vehicles, watercrafts, and aircrafts." [Doc. 13] at 6. The government urges the Court not to let state law interpretations of the non-residential burglary subsection inform the scope and meaning of residential burglary. Id. at 8-10. The government also points out that New Mexico law further narrows "dwelling house" to only those structures "customarily used as living quarters." Id. at 6-7.
I find Mr. Sanchez's argument unpersuasive. First, New Mexico residential burglary is not as broad as Mr. Sanchez claims; it is not susceptible to the interpretation that he urges the Court to accept. Rather, a plain-text reading of the statute, the Supreme Court's decision in Mathis, and the state court decisions interpreting burglary of a "dwelling house" compel a finding that New Mexico residential burglary does not include movable structures. Nor does the Tenth Circuit construe generic burglary as narrowly as Mr. Sanchez claims. Even if New Mexico courts interpreted residential burglary to include the burglary of a movable vehicle in which a person was living, the residential burglary subsection would still comport with the generic definition: the Tenth Circuit has held that generic burglary encompasses burglary of such structures, where they are used as habitations. Ultimately, there is no realistic probability that New Mexico courts would construe burglary of a "dwelling house" in a way that would render it overbroad. See Gonzales, 549 U.S. at 193.
New Mexico residential burglary—the burglary of a "dwelling house," under subsection A of the burglary statute—simply does not encompass, as Mr. Sanchez suggests, the burglary of any and all structures listed in § 30-16-3 (whether enumerated in subsection A or subsection B), so long as the structure is used as a habitation.
Furthermore, Mr. Sanchez has supplied no authority to support his theory that the locations enumerated in subsection B (and the case law interpreting them) can be applied wholesale to subsection A—that the language in the Uniform Jury Instructions defining "dwelling house" provides a hook sufficient to reel in this whole separate body of case law. Mr. Sanchez cites no case in which a New Mexico court relied on an interpretation of the non-residential burglary statute to uphold a conviction for residential burglary. In fact, Mr. Sanchez cites no case at all in which a New Mexico court has actually interpreted the meaning of "dwelling house" beyond the definition supplied in the Uniform Jury Instructions.
Finally, a consideration of the limited case law from the New Mexico courts addressing the meaning of "dwelling house" within § 30-16-3(A) is instructive and further compels the outcome that I recommend. New Mexico courts have adopted the definition of "dwelling house" provided in the Uniform Jury Instructions: "any structure, any part of which is customarily used as living quarters." State v. Ross, 1983-NMCA-065, ¶ 11, 100 N.M. 38, 53 (citing UJI 14-1631 NMRA). The few cases interpreting burglary of a "dwelling house" do not evaluate whether structures listed under subsection B could qualify under subsection A. Rather, these cases analyze whether the burglarized location satisfies the "living quarters" requirement of subsection A. In State v. Ervin, the New Mexico Court of Appeals held that a burglarized house was a "dwelling house" for purposes of § 30-16-3(A) because the defendant presented no evidence that the previous occupant of the house "had abandoned the house or had no intention of returning." 1981-NMCA-068, ¶¶ 1, 4, 96 N.M. 366, 367. The court cited with approval the common law rule that "a building is not a dwelling before the first occupant has moved in; nor does it continue to be a dwelling after the last occupant has moved out with no intention of returning." Id. ¶ 3. Though not conclusive, Ervin suggests that New Mexico residential burglary contemplates only those structures that lend themselves to occupancy over some fixed period of time. See also State v. Lara, 1978-NMCA-112, ¶¶ 4-5, 92 N.M. 274, 275 (holding that a garage attached to a residence but from which there was no direct access to the interior of the house was a "dwelling house" under the residential burglary statute "because the garage was a part of the structure used as living quarters").
In the one case in which a New Mexico court actually discussed the subsection B structures in evaluating a conviction under subsection A, the court rejected the argument Mr. Sanchez raises here. State v. Ruiz, 1980-NMCA-123, 94 N.M. 771, superseded by statute on other grounds as stated in State v. McCormack, 1984-NMCA-042, ¶ 12, 101 N.M. 349, 351-52. In Ruiz, the court addressed the meaning of "dwelling house" in the context of holding that criminal trespass is a lesser included offense of residential burglary. Id. ¶¶ 40-46. As a preliminary matter, the court explained that "[t]he offense charged was burglary of a dwelling house; thus, we are not concerned with vehicles, watercraft or aircraft, or other structures." Id. ¶ 39. Next, in comparing the respective locational elements of residential burglary (entry of a "dwelling house") and criminal trespass (entry of "lands of another"), the court held that trespass is a lesser included offense of residential burglary because entry of a dwelling house necessarily means entry "upon the lands of another." Id. ¶ 45 (internal quotation marks omitted). "Lands," the court stated, "includes buildings and fixtures, and is synonymous with real property." Id. (internal quotation marks omitted). "When one enters another's dwelling house, . . . one has entered lands of another." Id. The court was careful to note that "[t]his reasoning, of course, would not apply if the burglary was of a vehicle, watercraft or aircraft." Id. The court in Ruiz stated plainly (albeit in dicta) that the locational element of residential burglary excludes vehicles and the like and is limited to fixed structures. Subsection A of the burglary statute is not susceptible to the broad interpretation that Mr. Sanchez asks the Court to give it. The two subsections of New Mexico burglary set out discrete locational elements, and the locations listed in subsection B cannot be read into subsection A.
Even if the New Mexico residential burglary statute could be read to include the burglary of a vehicle in which a person was living, as Mr. Sanchez maintains, it still would not be overbroad, because generic burglary in the Tenth Circuit is not as narrow as Mr. Sanchez contends it is. There is no question that generic burglary excludes the burglary of "vehicles," that is, movable structures used for transportation. See Shepard, 544 U.S. at 15-16 (generic burglary is limited to burglaries "committed in a building or enclosed space . . ., not in a boat or motor vehicle"); Mathis, 136 S. Ct. at 2250 (Iowa statute was overbroad where it reached "any building, structure, [or] land, water, or air vehicle" (emphasis and alteration in original) (internal quotation marks omitted)). Mr. Sanchez, however, interprets the Supreme Court's language on vehicles and movable structures to mean that generic burglary cannot encompass the burglary of any movable structure, even when such structure is used as a habitation. See [Doc. 16] at 4, 7-9. He cites for support a recent decision of the Fourth Circuit Court of Appeals that so construed the generic definition. [Doc. 12] at 2-3 (citing United States v. White, 836 F.3d 437 (4th Cir. 2016)).
The Tenth Circuit, however, has already spoken on this issue. In United States v. Spring, the court held that generic burglary encompasses burglary of a "mobile home or vehicle adapted for the overnight accommodation of persons." 80 F.3d 1450, 1462 (10th Cir. 1996) (internal quotation marks omitted). The court in Spring noted that the Texas statute at issue did "not include vehicles in the sense in which Taylor intended," that is, vehicles whose sole or primary purpose is transportation, rather than habitation. Id. In reaching this conclusion, the court pointed to the purpose behind the inclusion of burglary as a predicate offense and Taylor's differentiation between burglary of a building and burglary of a car: the burglary of structures such as homes poses a risk of violence to the occupants of the house or other structure. Id. (quoting United States v. Sweeten, 933 F.2d 765, 771 (9th Cir. 1991), overruled by United States v. Grisel, 488 F.3d 844 (9th Cir. 2007)). The burglary of a vehicle, by contrast, is more like a property crime; it is less severe because it does not pose the same risk of violent confrontation. Id. (quoting Sweeten, 933 F.2d at 771). The burglary of a mobile home or like structure is much more like the burglary of a home than a vehicle. Id. (quoting Sweeten, 933 F.2d at 771). Indeed, as the court noted, it "is often likely to pose a greater risk of violence to the occupant or owner than the burglary of a building or house because it is more difficult for the burglar to enter or escape unnoticed."
The Tenth Circuit reiterated the holding of Spring in Ramon Silva, 608 F.3d at 668. "`[T]he generic definition [of burglary] broadly construes the possible settings for burglary,'" the court noted. Id. (second alteration in original) (quoting United States v. Cummings, 531 F.3d 1232, 1235 (10th Cir. 2008)). It is not restricted to "permanent" spaces "designed for human habitation or business." Id. (internal quotation marks omitted). Generic burglary is "`coterminous,'" the court concluded, with a state statute that prohibits burglary of "`a building or other place designed to provide protection for persons or property against weather or intrusion,'" but that does not include "`vehicles or other conveyances whose primary purpose is transportation.'" Id. (emphasis added) (quoting Cummings, 531 F.3d at 1235-36).
Thus, while the law is clear that generic burglary does not include those movable structures "whose primary purpose is transportation," id. (internal quotation marks omitted), in the Tenth Circuit, mobile homes, trailers, and like structures used for habitation do satisfy generic burglary's locational element. The hypothetical situation to which Mr. Sanchez repeatedly turns in his briefing—a person living in a movable trailer or using his vehicle as his dwelling—does not, in fact, run afoul of the definition of generic burglary in the Tenth Circuit.
Ultimately, underlying my comparison of New Mexico residential burglary with generic burglary is the Supreme Court's mandate that there must be "a realistic probability, not a theoretical possibility, that the [s]tate would apply its statute to conduct that falls outside the generic definition of a crime." Gonzales, 549 U.S. at 193. To make such a finding "requires more than the application of legal imagination to a state statute's language." Id. Mr. Sanchez asks the Court to conjure a circumstance under which a person could be convicted under subsection A for burglarizing a structure listed in subsection B—and not just any structure, but one, utilized as a dwelling, that would fall outside the Tenth Circuit's permissive conception of the locational element of generic burglary. See Ramon Silva, 608 F.3d at 668. Mr. Sanchez himself does not point to any such case. There is no realistic probability that New Mexico courts would apply the residential burglary statute to a locational element outside the generic definition. Mr. Sanchez asks the Court to construe New Mexico residential burglary as overbroad based on the theoretical possibility that the subsection could be applied to conduct outside the generic definition. In line with the dictates of the Supreme Court and the Tenth Circuit, I decline to do so.
Mr. Sanchez makes a compelling case as to why New Mexico burglary, if it were an indivisible statute, would not qualify as a "violent felony" under the ACCA, or why a conviction under subsection B of the New Mexico burglary statute would not qualify. But the statute is divisible, and Mr. Sanchez was convicted under subsection A, not subsection B. He wants to fuse the two subsections so that they mean one and the same thing. The burglary statute, however, is not susceptible to such an interpretation. I find that burglary of a dwelling under § 30-16-3(A) meets the generic definition of "burglary."
