Barela v. United States of America

Filing 19

REPORT AND RECOMMENDATIONS by Magistrate Judge Lourdes A. Martinez. Objections to R&R due by 2/2/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff/Respondent,

v.

No.

CV 16-0339 JAP/LAM
CR 09-1250 JAP

PAUL BARELA,
Defendant/Movant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION1
THIS MATTER is before the Court on Defendant/Movant’s (hereinafter “Defendant”)
§ 2255 Motion [Doc. 6], 2 filed on June 12, 2016.

Plaintiff/Respondent (hereinafter “the

Government”) filed a response on September 9, 2016 [Doc. 13], and Defendant filed a reply on
October 14, 2016 [Doc. 16]. United States District Judge James A. Parker referred the claims
raised in this case to the undersigned for proposed findings and a recommended disposition, and a
hearing, if necessary. [Doc. 2]. Having considered the motion, response, reply, relevant law,
and the record in this case and in Defendant’s underlying criminal case contained in Case
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Within fourteen (14) days after a party is served with a copy of these proposed findings and
recommended disposition, that party may, pursuant to 28 U.S.C. § 636(b)(1), file written objections to such
proposed findings and recommended disposition. A party must file any objections with the clerk of the
United States District Court for the District of New Mexico within the fourteen (14) day period allowed if that
party wants to have appellate review of the proposed findings and recommended disposition. If no objections
are filed, no appellate review will be allowed. Pursuant to Fed. R. Civ. P. 72(b)(2), a party may respond to
another party’s objections within fourteen (14) days after being served with a copy of the objections.
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Hereinafter, all documents from Case No. CIV-16-0339 cited in this decision will be designated as “Doc.”
followed by their docket number, and all documents from Case No. CR-09-1250 cited in this decision will be
designated as “Cr.Doc.”

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No. CR-09-1250, the undersigned recommends, for the reasons set forth below, that Defendant’s
§ 2255 motion [Doc. 6] and be GRANTED and that Defendant be RESENTENCED.
Factual and Procedural Background
On March 8, 2010, pursuant to a Plea Agreement [Cr.Doc. 41], Defendant pled guilty to an
Indictment [Cr.Doc. 11] charging him with one count of being a felon in possession of a firearm
and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The parties state that
Defendant was subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e), which mandates a minimum sentence of 180 months (15 years). See [Doc. 6
at 2] and [Doc. 13 at 1].3 The parties state that Defendant was subject to the ACCA based on his
convictions for conspiracy to commit aggravated battery, commercial burglary (two convictions),
aggravated battery, and residential burglary. See [Doc. 6 at 2-3] and [Doc. 13 at 1-2]. Defendant
contends that, without the ACCA designation, he would have been subject to a Sentencing
Guidelines range of 100 to 120 months. See [Doc. 6 at 2]. On March 8, 2010, the judge who was
then presiding in Defendant’s criminal case imposed a 180-month sentence, with 3 years of
supervised release. See [Cr.Doc. 43 at 2-3].
In his § 2255 motion, Defendant contends that his prior conviction for conspiracy to
commit aggravated battery should never have been used as an ACCA predicate offense, and that
his prior convictions for commercial burglary no longer qualify as convictions for a crime of
violence pursuant to the holding of Johnson v. United States, 135 S. Ct. 2551 (2015), and,
therefore, cannot be used to enhance his sentence. [Doc. 6 at 3]. Defendant asks the Court to
vacate his ACCA sentence and resentence him. Id. at 15.
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While both parties cite to Defendant’s Presentence Report (“PSR”), the PSR has not been filed in either
Defendant’s civil or criminal cases, and neither party has provided the Court with a copy of the PSR. Nevertheless,
since the parties do not dispute the information in the PSR, the Court will rely on the parties’ statements in their briefs
regarding the content of the PSR.

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Discussion
Under the ACCA, an individual who violates § 922 (g) (e.g., being a felon in possession of
a firearm or ammunition), and who has “three previous convictions . . . for a violent felony or a
serious drug offense,” will receive a mandatory, minimum 15-year sentence. 18 U.S.C. § 924(e).
The statute defines the term “violent felony” as:
[A]ny crime punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an adult,
that-(i)
has as an element the use, attempted use, or
threatened use of physical force against the person of another; or
(ii)
is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another . . . .
18 U.S.C. § 924(e)(2)(B)(i)-(ii) (emphasis added). The emphasized clause is referred to as the
“residual clause,” and in Johnson the Supreme Court held that the residual clause “denies fair
notice to defendants and invites arbitrary enforcement by judges,” and, therefore, violates the due
process clause of the Constitution. Johnson, 135 S.Ct. at 2557.
Defendant contends that his prior conviction for conspiracy to commit aggravated battery
should never have been used as an ACCA predicate offense, and that his prior convictions for
commercial burglary no longer qualify as convictions for a crime of violence pursuant to the
holding of Johnson, and, therefore, cannot be used to enhance his sentence. See [Doc. 6 at 3].
Defendant contends that his commercial burglary convictions no longer qualify as violent felonies
under the residual clause of the ACCA because that clause was found to be unconstitutional in
Johnson. Id. at 4-5. Defendant further contends that his convictions for commercial burglary do

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not fall under the ACCA’s elements, or force, clause because the statute under which he was
convicted, N.M.S.A. 1978 § 30-16-3, does not contain as an element the use, attempted use, or
threatened use of physical force against another person. Id. at 6. Finally, Defendant contends
that his commercial burglary convictions do not fall under the ACCA’s enumerated clause,
because the meanings of “structure” and “entry” at the time of Defendant’s convictions were much
broader than federal, generic law regarding the definitions of those terms. Id. at 7-13. Defendant
contends that the Court should apply the modified categorical approach, and that the charging
documents for his commercial burglary convictions do not identify whether he “entered” into a
“structure” in a manner recognized by the federal, generic definition of burglary, so those
convictions cannot be used to support an ACCA sentence. Id. at 9 and 13-15.
In response, the Government concedes that Defendant’s conspiracy conviction does not
qualify as a crime of violence for purposes of the ACCA. See [Doc. 13 at 2 and 3]. However, the
Government contends that Defendant’s convictions for commercial burglary qualify as
ACCA-predicate offenses. Id. at 5. The Government contends that the subsection of the
burglary statute under which Defendant was convicted, N.M.S.A. § 30-16-3(B), “contains
alternatives which encompass both generic and non-generic burglary” (id. at 7), and that, pursuant
to Mathis v. United States, 136 S.Ct. 2243 (2016), this section is divisible, and the relevant
element for Defendant’s convictions is burglary of a structure, which is not more broad than the
federal, generic definition (see id. at 9-11). Therefore, the Government argues that Defendant’s
commercial burglary convictions fall under the ACCA’s enumerated clause and maintains that
Defendant was correctly classified as an armed career criminal. Id. at 11.
In reply, Defendant disputes the Government’s reading of Mathis, and contends that
Mathis provides that the Court can look at Defendant’s criminal record documents to determine

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under which of the two subsections of § 30-16-3 Defendant was convicted (i.e., (A) or (B)), but
that the statute is not further divisible, and that commercial (or non-residential) burglary under
subsection B is broader than generic burglary, so it cannot be used as an ACCA-predicate offense.
See [Doc. 16 at 2-3 and 6]. Defendant further contends that his criminal record documents fail to
establish whether the “entry” or “structure” used in his charging documents satisfy the generic
definition. See id. at 9-12. In addition, on November 30, 2016, Defendant filed a Notice of
Supplemental Authority (Doc. 17), notifying the Court that, in United States v. Jimenez, Case
No. 03-CR-1832 RB and 16-CV-661 RB/SMV, the Magistrate Judge had entered a report and
recommendation finding that non-residential burglary under the New Mexico statute does not
qualify as a crime of violence for ACCA purposes. On January 11, 2017, Defendant filed a
Second Notice of Supplemental Authority (Doc. 18), stating that the presiding judge in that case
had adopted the Magistrate Judge’s report and recommendation.
Based on the foregoing, the Court must determine whether Defendant’s convictions for
commercial4 burglary fall under the enumerated clause of the ACCA, § 924(e)(2)(B)(ii).5 To
determine whether a past conviction qualifies as one of the offenses enumerated at
§ 924(e)(2)(B)(ii), courts compare the elements of the crime of conviction with the elements of the
federal generic version of the listed offense. See Mathis, 136 S.Ct. at 2248. “To determine
whether a prior conviction is for generic burglary (or other listed crime) courts apply what is
known as the categorical approach: They focus solely on whether the elements of the crime of
conviction sufficiently match the elements of generic burglary, while ignoring the particular facts
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The Court uses the terms “commercial” and “non-residential” burglary interchangeably.

5

The Government does not dispute Defendant’s contentions that his commercial burglary convictions do not
fall under the “elements” (or “force”) clause of the ACCA (§924(e)(2)(B)(i)), or that they no longer qualify under the
residual clause pursuant to the holding in Johnson (see Doc. 6 at 3 and Doc. 13 at 2), and the Court finds no reason to
hold otherwise.

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of the case.” Id. (citing Taylor v. United States, 495 U.S. 575, 600-01 (1990)). A prior
conviction qualifies as an ACCA-predicate offense “if its elements are the same as, or narrower
than, those of the generic offense.” Id. However, “if the crime of conviction covers any more
conduct than the generic offense, then it is not an ACCA ‘burglary’ -- even if the defendant’s
actual conduct (i.e., the facts of the crime) fits within the generic offense’s boundaries.” Id. The
generic definition of burglary is “an unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime.” Taylor, 495 U.S. at 599. Thus, when a
burglary statute is broader than the generic definition, then the statute may not be used as an
ACCA-qualifying predicate offense under the enumerated clause.

See, e.g., Descamps v.

United States, 133 S.Ct. 2276, 2282-83 (2013) (finding that California’s burglary statute, which
provides that a “person who enters” certain locations “with intent to commit grand or petit larceny
or any felony is guilty of burglary,” is broader than federal generic burglary because it criminalizes
entering a location, even lawfully, with the intent to steal, whereas generic burglary requires an
unlawful or unprivileged entry).
When a statute has a “divisible” structure, whereby it lists elements in the alternative and
defines multiple crimes, a court must discern which of the alternative elements listed was necessary
for the defendant’s conviction. See Mathis, 136 S.Ct. at 2249. To do so, courts use a “modified
categorical approach,” under which a 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.” Id. (citations omitted). “The court can then compare that
crime, as the categorical approach commands, with the relevant generic offense.” Id. When faced
with an “alternatively phrased” statute which “enumerates various factual means of committing a
single element” (id.), a court must “determine whether [the statute’s] listed items are elements or
means” (id. at 2256). “If they are elements, the court should . . . review the record materials to

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discover which of the enumerated alternatives played a part in the defendant’s prior conviction, and
then compare that element (along with all others) to those of the generic crime.” Id. (citation omitted).
However, if the listed items “are means [of committing a single element], the court has no call to
decide which of the statutory alternatives was at issue in the earlier prosecution,” and “[g]iven ACCA’s
indifference to how a defendant actually committed a prior offense, the court may ask only whether the
elements of the state crime and generic offense make the requisite match.” Id.
To determine whether a statute lists elements or means, a court should look to see if state court
decisions are of assistance, as the Supreme Court did in Mathis when it looked to an Iowa Supreme
Court decision regarding Iowa’s burglary law, which held that the various premises listed in the
burglary statute at issue were “alternative methods of committing one offense, so that a jury need not
agree whether the burgled location was a building, other structure, or vehicle.” Id. (citing Iowa v.
Duncan, 312 N.W.2d 519, 523 (Iowa 1981) (internal quotation marks and brackets omitted). The
Supreme Court stated that “[w]hen a ruling of that kind exists, a sentencing judge need only follow
what it says.” Id. (citation omitted). In addition, the Supreme Court instructs that “the statute on its
face may resolve the issue,” and that “[i]f statutory alternatives carry different punishments, then . . .
they must be elements,” but “if a statutory list is drafted to offer illustrative examples, then it includes
only a crime’s means of commission.” Id. (citations and internal quotations marks omitted). Finally,
if state law fails to provide clear answers, the Supreme Court states that the court may “peek” at the
record of a prior conviction itself for “the sole and limited purpose” of determining whether the listed
items are means or elements. Id. at 2256-57 (citation and internal quotation marks omitted).
The burglary statute at issue in this case reads:
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.

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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.S.A. 1978 § 30-16-3. The alternative elements in this statute are separated into subsections A
and B, wherein subsection A is burglary of a “dwelling house,” a third degree felony, and subsection B
is non-residential (or commercial) burglary, a fourth degree felony. Because this statute is divisible
into these two elements, the Court may examine the state court documents that were used to convict
Defendant in order to determine whether Defendant was convicted under subsection A or
subsection B. See Mathis, 136 S.Ct. at 2249 (describing the modified categorical approach). The
charging documents indicate that Defendant was charged with commercial burglary under
§ 30-16-3(B). See [Doc 6 at 20] (criminal information alleging burglary contrary to § 30-16-3(B)),
and id. at 33 (indictment alleging burglary contrary to § 30-16-3(B)).
Next, the Court must compare subsection B with the federal generic definition of burglary to
determine whether § 30-16-3(B) is broader than the federal, generic definition. The federal, generic
definition of burglary is “an unlawful or unprivileged entry into, or remaining in, a building or other

structure, with intent to commit a crime.” Taylor, 495 U.S. at 599. Since the New Mexico
definition of non-residential burglary encompasses unlawful entries into more than just “buildings or
other structures,” the Court finds that New Mexico’s non-residential burglary statute is broader than
the federal generic definition. Because the Court finds that New Mexico’s burglary statute is broader
than generic burglary based on its inclusion of more than just buildings or structures, the Court declines
to address Defendant’s contention that the definition of “entry” as used in the New Mexico burglary
statute is broader than the federal definition.
While the Government concedes that Ҥ 30-16-3(B) is broader than generic burglary because it
encompasses unlawful entry into not just a building or structure, but a ‘vehicle, watercraft, [or]

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aircraft’” (Doc. 13 at 6, citing Mathis, 136 S.Ct. at 2250), the Government asks the Court to find that
subsection B is further divisible and, thus, satisfies the generic burglary definition (see Doc. 13
at 7-11).

Specifically, the Government contends that the charging documents for Defendant’s

commercial burglary convictions “establish that the relevant element for all three convictions was
burglary of a structure (‘Parnelli Jones Auto Center’ and ‘Giant Gas Station’) not burglary of a
‘vehicle, watercraft, [or] aircraft,’” and, thus, “these convictions were for generic burglary and either
qualify as one of the three requisite convictions for the ACCA enhancement.” Id. at 9. The
Government admits that it “has been unable to locate any New Mexico state case addressing whether
the alternatives listed in § 30-16-3(B) are elements or means of committing commercial burglary” (id.
at 7), and concedes that the statutory penalties are the same for any of the alternatives listed in
subsection B (id.). Nevertheless, the Government argues that the alternatives listed in subsection B
(“any vehicle, watercraft, aircraft or other structure, movable or immovable”) do not constitute a list of
“illustrative examples,” and, thus, constitute elements which make the subsection divisible. See id.
at 8.
To support this contention, the Government attempts to distinguish United States v. Howard,
742 F.3d 1334 (11th Cir. 2014), in which the Eleventh Circuit Court of Appeals held that Alabama’s
burglary statute contained a non-exhaustive list of illustrative examples and, thus, was indivisible and
permitted application of the categorical approach only. See [Doc. 13 at 8-9]. In Howard, the
Alabama statute at issue provided that “a person commits the crime of burglary in the third degree if he
knowingly enters or remains unlawfully in a building with intent to commit a crime therein,” and
Alabama law defined “building” with a list that “include[d] any vehicle, aircraft or watercraft used for
the lodging of persons or carrying on business therein.” See Howard, 742 F.3d at 1348. The
Eleventh Circuit looked to Descamps, which explains that courts must determine “whether the ‘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’” (Howard, 742 F.3d at 1348, quoting Descamps,

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133 S.Ct. at 2281), and concluded that “nothing in the Alabama statute suggests its definition of
‘building’ is drafted in the alternative,” but instead “includes a non-exhaustive list of things that fall
under that definition’” (Howard, 742 F.3d at 1348). The Eleventh Circuit found that the use of the
word “includes” before the alternatives was significant because it indicated a “non-exhaustive list of
examples to clarify the meaning of the term,” not alternative elements. Id. (citation and internal
quotation marks omitted). Contrasting the statute in Howard to New Mexico’s commercial burglary
statute, the Government contends that Ҥ 30-16-3(B) contains a definitive list of items which
effectively creates several different crimes,” and that, therefore, “the Court may infer that § 30-16-3(B)
contains alternative elements and is a divisible statute.” [Doc. 13 at 9] (internal quotation marks
omitted).
Based on the foregoing, the Government urges the Court to examine the charging documents to
determine whether Defendant was convicted of burgling a vehicle, watercraft, aircraft, or “other
structure.” See id. The Government further contends that if the Court concludes that it is unclear
whether or not § 30-16-3(B) contains illustrative examples or alternative elements, the Court should
look at the record documents to see if they reference one alternative term to the exclusion of the others.
Id. at 9-10. The Government argues that, because the charging documents list a structure for one of
the counts, and automobiles for the other counts, “the list in § 30-16-3(B) are elements that the
prosecutor must prove, not alternative means to commit the crime.” Id. at 10 (citing Mathis, 136 S.Ct.
at 2257). The Government contends that, because Defendant was charged with burgling a “structure,”
Defendant’s convictions are consistent with the definition of generic burglary and, thus, constitute
enumerated violent felonies under the ACCA. See id. at 11.
For the following reasons, the Court finds that subsection B is not divisible. First, the Court
finds that state law supports a finding that subsection B is not divisible. As noted by Defendant, the
New Mexico Supreme Court has explained that subsection B does not provide a finite list. See
[Doc. 16 at 2-3] (citing New Mexico v. Office of the Public Defender ex rel. Muqqddin,

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2012-NMSC-029, __ N.M. __, 285 P.3d 622). The New Mexico Supreme Court stated in this case
that § 30-16-3 “divides the crime [of burglary] into different grades, with the entry of a dwelling being
a third degree felony while entry into any of the other enumerated objects being a fourth degree
felony.” 2012-NMSC-029, ¶ 13. The fact that the Court described only two “grades” indicates that
subsection B is not divisible.
Second, the plain text of the statute indicates that it is not divisible. As conceded by the
Government (see Doc. 13 at 7), the statutory penalties are the same for any of the alternatives listed in
subsection B, which indicates that it contains a list of means, not elements. See Mathis, 136 S. Ct.
at 2257 (explaining that courts should look at the plain language of the statute, and that, if statutory
alternatives carry different punishments, then they must be elements). In addition, the plain language
of the statute indicates that it is divisible into only subsections A and B, and that subsection B is not
further divisible, because the state legislature separated residential burglary in subsection A from all
other burglaries in subsection B.
Third, the Court agrees with Defendant that the correlative uniform jury instruction indicates
that subsection B contains alternative means, not elements. See [Doc. 16 at 4]. As the Supreme
Court explained in Mathis, if the charging document and correlative jury instructions both use an
umbrella term like “premises,” or both list the alternatives together, e.g., “building, structure, or
vehicle,” such construction would be “as clear an indication as any that each alternative is only a
possible means of commission, not an element that the prosecutor must prove to a jury beyond a
reasonable doubt.” 136 S.Ct. at 2257. Conversely, if the charging document and correlative jury
instructions both reference “one alternative term to the exclusion of all others,” that could indicate
“that the statute contains a list of elements, each one of which goes toward a separate crime.” Id.
Here, the correlative jury instruction for burglary lists all of the alternatives of “[vehicle] [watercraft]
[aircraft] [dwelling] [or] [other structure],” which indicates that the alternatives are only possible
means of commission, and not elements that the prosecutor must prove to a jury beyond a reasonable

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doubt.

See UJI 14-1630 N.M.R.A.

In addition, UJI 14-1630 N.M.R.A. only treats the term

“dwelling” differently from the other places of commission of the offense by instructing the courts to
give UJI 14-1631, which defines “dwelling house,” only if the charge is burglary of a dwelling house.
The Court, therefore, finds that this jury instruction supports a finding that each of the alternatives in
subsection B provides alternative methods of committing the single crime of non-residential burglary.
See Mathis, 136 S.Ct. at 2250.
Finally, the Court rejects the Government’s attempt to distinguish the holding of Howard.
The Court finds that the term in subsection B “or other structure” is similar to the word “includes” in
the statute in Howard, and that both of these terms indicate non-exhaustive lists of alternative means by
which the offense may be committed. The Court is not persuaded by the Government’s contention
that subsection B contains a definitive, finite list of items that creates several different crimes.
For the reasons stated above, the Court finds that § 30-16-3(B) is divisible into subsections A
(residential burglary) and B (non-residential burglary), but that subsection B is not further divisible.
Therefore, the Court finds that it would not be proper to apply the modified categorical approach to the
alternatives listed in subsection B. See Mathis, 136 S.Ct. at 2254 (explaining that the application of
the modified categorical approach “is not to be repurposed as a technique for discovering whether a
defendant’s prior conviction, even though for a too-broad crime, rested on facts . . . that also could have
satisfied the elements of a generic offense”). Because subsection B is broader than the federal generic
definition of burglary, Defendant’s convictions for commercial burglary may not be used as
ACCA-predicate offenses under the enumerated clause, and Defendant should be resentenced.

Conclusion
IT IS THEREFORE RECOMMENDED, for the reasons stated above, that
Defendant’s § 2255 motion [Doc. 6] be GRANTED, that the Court VACATE Defendant’s

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sentence, ORDER an updated sentencing memorandum, and set this case for resentencing as soon
as possible.

______________________________________
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE

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