Luna v. United States of America

Filing 16

REPORT AND RECOMMENDATIONS by Magistrate Judge Lourdes A. Martinez re 4 Section 2255 Motion. Objections to R&R due by 2/28/2017. 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 16-0343 MV/LAM
CR 12-0969 MV

RICHARD E. LUNA,
Defendant/Movant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION1
THIS MATTER is before the Court on Defendant/Movant’s (hereinafter “Defendant”)
§ 2255 Motion [Doc. 4], 2 filed on June 24, 2016.

Plaintiff/Respondent (hereinafter “the

Government”) filed a response on August 9, 2016 [Doc. 8], and Defendant filed a reply on
August 19, 2016 [Doc. 9]. On October 14, 2016, this case was reassigned to the undersigned as
the pretrial judge. [Doc. 12]. On January 25, 2017, United States District Judge Martha
Vázquez referred the claims raised in this case to the undersigned for proposed findings and a
recommended disposition, and a hearing, if necessary. [Doc. 15].

Having considered the

1

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.
2

Hereinafter, all documents from Case No. CIV-16-0343 cited in this decision will be designated as “Doc.”
followed by their docket number, and all documents from Case No. CR-12-969 cited in this decision will be
designated as “Cr.Doc.”

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motion, response, reply, relevant law, and the record in this case and in Defendant’s underlying
criminal case contained in Case No. CR-12-969, the undersigned recommends, for the reasons set
forth below, that Defendant’s § 2255 motion [Doc. 4] be GRANTED in part and DENIED in
part and that Defendant be RESENTENCED.
Factual and Procedural Background
On December 5, 2012, pursuant to a Plea Agreement [Cr.Doc. 42], Defendant pled guilty
to an Indictment [Cr.Doc. 2] 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. 4 at 2] and [Doc. 8 at 2].3 The parties state that Defendant was subject to the ACCA
based on two prior convictions for residential burglary, and one prior conviction for commercial
burglary. See [Doc. 4 at 2] and [Doc. 8 at 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. 4 at 2]. On April 17, 2013, 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. 53 at 2-3].
In his § 2255 motion, Defendant contends that his prior convictions for residential and
commercial burglary no longer qualify as convictions for crimes 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. 4 at 2]. Defendant asks the Court to vacate his ACCA sentence and
resentence him. Id. at 11.
3

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.

2

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 convictions for residential and commercial burglary no
longer qualify as violent felonies under the residual clause of the ACCA because that clause was
found to be unconstitutional in Johnson. [Doc. 4 at 3]. Defendant further contends that these
convictions do not fall under the ACCA’s elements, or force, clause because the statute under
which he was previously 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 4. Finally,
Defendant contends that his 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

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broader than federal, generic law regarding the definitions of those terms. Id. at 4-11. Defendant
contends that the Court should apply the modified categorical approach (id. at 6), and that the
charging documents for his 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 9-11).
In response, the Government contends that Defendant’s convictions for residential and
commercial burglary qualify as ACCA-predicate offenses. [Doc. 8 at 5-10]. The Government
contends that the subsection of the burglary statute under which Defendant was convicted for
residential burglary, N.M.S.A. § 30-16-3(A), “limits the overbroad statutory alternatives and
leaves a conviction under it narrower than a conviction under generic burglary.” Id. at 5. In
addition, the Government contends that the subsection of the burglary statute under which
Defendant was convicted for commercial burglary, N.M.S.A. § 30-16-3(B), “contains alternative
elements and is a divisible statute, which means the Court may employ the modified categorical
approach to determine which alternative element formed the basis of [Defendant’s] conviction.”
Id. at 9. Therefore, the Government argues that Defendant’s commercial burglary conviction
falls under the ACCA’s enumerated clause and maintains that Defendant was correctly classified
as an armed career criminal. Id. at 10.
In reply, Defendant contends that New Mexico’s residential burglary statute is broader
than the federal, generic definition of burglary because it “encompasses burglaries of uninhabited
and unconnected buildings.”

[Doc. 9 at 4].

Defendant also contends that New Mexico’s

commercial burglary statute is broader than the federal, generic definition of burglary because the
charging documents for Defendant’s commercial burglary conviction do not specify the location

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of “entry” and do not clearly identify whether Defendant entered a “structure” in a manner
recognized by the federal, generic definition. Id. at 7.
Based on the foregoing, the Court must determine whether Defendant’s convictions for
residential and commercial 4 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 v. United States,
136 S.Ct. 2243, 2248 (2016). “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 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 federal, 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.

4

The Court uses the terms “commercial” and “non-residential” burglary interchangeably.

5

The Government does not appear to dispute Defendant’s contentions that his 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 (§ 924(e)(2)(B)(ii) - “otherwise involves conduct that presents a
serious potential risk of physical injury to another”). See [Doc. 8 at 3-10] (addressing only whether or not these
convictions fall under the enumerated clause, § 924(e)(2)(B)(ii)). The Court finds no reason to hold otherwise and
will, therefore, focus on whether these convictions fall under the enumerated clause.

5

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., citation omitted), 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 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

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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 State of
Iowa v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981) (internal quotation marks and brackets omitted).
The Supreme Court stated that when “a state court decision definitively answers the question . . . , 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.
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

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subsection B.

See Mathis, 136 S.Ct. at 2249 (describing the modified categorical approach).

Defendant states that his charging documents show that he was charged with two counts of residential
burglary under § 30-16-3(A) (see Doc. 4 at 9-10, citing Exhibits A and B), and one count of
commercial burglary under § 30-16-3(B) (see id. at 10, citing Exhibit C).
1.

Residential Burglary Convictions

Defendant contends that his residential burglary convictions are broader than the federal,
generic definition because the charging documents for those crimes do not specify how Defendant
accomplished the “entry” or what the “structure” was that Defendant entered. See [Doc. 4 at 9-10].
In his reply brief, Defendant contends that “[t]he Tenth Circuit has defined the generic guideline
offense of burglary of a dwelling as the burglary of any ‘enclosed space that is used or intended for use
as a human habitation.’” [Doc. 9 at 3] (quoting United States v. Rivera-Oros, 590 F.3d 1123, 1132
(10th Cir. 2009)). Defendant notes that New Mexico has defined “dwelling house” as “any structure,
any part of which is customarily used as living quarters” (id., quoting N.M. UJI 14-1631, N.M.R.A.),
and that this definition has been held to include part of a dwelling that has no opening to the occupied
structure (see id., citing State v. Lara, 1978-NMCA-112, ¶ 6, 92 N.M. 274, 587 P.2d 52). Therefore,
Defendant contends that New Mexico’s residential burglary statute is broader than the federal, generic
definition “because New Mexico residential burglary encompasses burglaries of uninhabited and
unconnected buildings.” Id. at 4.
The Court finds that Defendant’s contention that the definition of residential burglary in
§ 30-16-3(A) is broader than the federal, generic definition is without merit. First, the Court notes
that Defendant’s reliance on Rivera-Oros for the federal, generic definition is misplaced because
Rivera-Oros defined the term “burglary of a dwelling” in the context of the Sentencing Guidelines -not the ACCA. See 590 F.3d at 1128-29 (explaining that Taylor’s definition of generic burglary in

the context of the ACCA does not govern when interpreting the meaning of the more specific

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phrase “burglary of a dwelling” in the Sentencing Guidelines). Instead, in this case the Court must
look at the federal, generic definition of burglary as it applies to the ACCA, § 924(e), which is set forth
in Taylor as “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.
The Court finds that New Mexico’s definition of residential burglary in § 30-16-3(A) is not
broader than the federal, generic definition.

Section 30-16-3(A) prohibits “enter[ing] [without

authorization] a dwelling house with intent to commit any felony or theft therein,” and New Mexico’s
criminal jury instructions define “dwelling” as “any structure, any part of which is customarily used as
living quarters” (N.M. UJI 14-1631, N.M.R.A.). Cases in New Mexico have held that a “dwelling”
under § 30-16-3(A) includes a garage that is attached but not internally connected to a home. See
Lara, 1978-NMCA-112, ¶¶ 3-6 (finding that a garage was part of a “dwelling” because it shared a wall
with the home used as living quarters, even though it did not contain a door into the home). However,
a “dwelling” in New Mexico does not include a detached, non-contiguous garage. See State v. Ross,
1983-NMCA-065, ¶ 11, 100 N.M. 48, 665 P.2d 310 (holding that a detached and non-contiguous
garage was not part of the dwelling house). The Court, therefore, finds that New Mexico’s definition
of residential burglary is not broader than the federal, generic definition because it is limited to
burglary of dwellings used as living quarters and particular structures that are attached to such
dwellings, which is narrower than any “building or structure” used for any purpose. While Defendant
contends that New Mexico’s residential burglary is broader than the federal, generic definition because
it “encompasses burglaries of uninhabited and unconnected buildings” (Doc. 9 at 4), the federal,
generic definition set forth in Taylor encompasses burglaries of uninhabited and unconnected
buildings as well, so this contention is without merit. In addition, Defendant is incorrect in stating

that New Mexico’s residential burglary encompasses unconnected buildings because the New
Mexico Court of Appeals in Ross held that a detached garage was not part of a “dwelling” under

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§ 30-16-3(A). For these reasons, the Court recommends denying Defendant’s contentions that his
residential burglary convictions do not fall under the ACCA’s enumerated clause.
2.

Commercial Burglary Conviction

Next, Defendant contends that his conviction for commercial burglary under § 30-16-3(B)
does not fall under the enumerated clause of the ACCA because it is broader than the federal, generic
definition. See [Doc. 4 at 10]. Again, 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 in
§ 30-16-3(B) encompasses unlawful entries into vehicles, watercrafts or aircrafts, which is 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.
The Government contends that the Court’s analysis does not end here, and asks the Court to
find that subsection B is further divisible and, thus, satisfies the federal, generic burglary definition.
See [Doc. 8 at 7-10]. 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,” and concedes that the statutory penalties are the same for any of the alternatives
listed in subsection B. Id. at 7. Nevertheless, the Government contends that subsection B contains a
list of elements, not “illustrative examples” (or means) to commit the offense, and contends that the
Eleventh Circuit case of United States v. Howard, 742 F.3d 1334 (11th Cir. 2014) supports its
contention. See id. at 8. 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 (citations omitted). The Eleventh Circuit looked to Descamps, which

10

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, 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 “§ 30-16-3(B)
contains a definitive list of items which effectively creates several different crimes” and “sets out one
or more elements of the offense in the alternative” rather than “a mere list of ‘illustrative examples’”
and, therefore, Ҥ 30-16-3(B) contains alternative elements and is a divisible statute, which means the
Court may employ the modified categorical approach to determine which alternative element formed
the basis of [Defendant’s] conviction.” [Doc. 8 at 9]. The Government contends that the charging
documents for Defendant’s commercial burglary conviction show that Defendant was convicted for
burglary of a structure and, therefore, Defendant’s conviction is consistent with the definition of
generic burglary and constitutes an enumerated violent felony under the ACCA. See id. at 9-10.
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. The New Mexico Supreme
Court has explained that subsection B does not provide a finite list, and 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.” See New Mexico v.
Office of the Public Defender ex rel. Muqqddin, 2012-NMSC-029, ¶ 13, __ N.M. __, 285 P.3d 622.
The fact that the New Mexico Supreme Court described only two “grades” between subsections A
and B indicates that subsection B is not divisible.

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Second, the plain text of the statute indicates that it is not divisible. As conceded by the
Government (see Doc. 8 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 2256 (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, even if the statute is not clear, the correlative uniform jury instruction indicates that
subsection B contains alternative means, not elements. As the Supreme Court explained in Mathis,
the Court can take a “peek” at the record documents “for the sole and limited purpose of determining
whether the listed items are elements of [as opposed to means of committing] the offense.” 136 S.Ct.
at 2257. Thus, 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.” Id.
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 doubt. See UJI 14-1630
N.M.R.A. Furthermore, all of these alternative means are listed in “each of the following elements of
the crime” that “the state must prove beyond a reasonable doubt.” UJI 14-1630 N.M.R.A. at ¶¶ 1
and 2. In addition, UJI 14-1630 N.M.R.A. only treats the term “dwelling” differently from the other

12

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
(holding that “those listed locations are not alternative elements, going toward the creation of separate
crimes[,] [but, t]o the contrary, they lay out alternative ways of satisfying a single locational element
. . . serv[ing] as an alternative method of committing the single crime of burglary”) (citation, internal
quotation marks, and brackets omitted).
Finally, the Court rejects the Government’s attempt to distinguish the holding of Howard. See
[Doc. 8 at 7-9]. 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 to determine whether Defendant’s prior conviction rested on facts
that satisfy the federal, generic definition. See Mathis, 136 S.Ct. at 2254 (explaining that the
application of the modified categorical approach “serves -- and serves solely -- as a tool to identify the
elements of the crime of conviction when a statute’s disjunctive phrasing renders one (or more) of them
opaque,” but it “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 (or otherwise said, involved means) that
also could have satisfied the elements of a generic offense”) (citation omitted). Because subsection B
is broader than the federal generic definition of burglary, Defendant’s conviction for commercial

13

burglary may not be used as an ACCA-predicate offense under the enumerated clause, thus leaving
Defendant with only two prior violent felony convictions instead of the three that the ACCA requires
for enhancing a sentence. Therefore, the Court recommends vacating Defendant’s sentence and
resentencing Defendant absent the ACCA-enhancement.

Conclusion
IT IS THEREFORE RECOMMENDED, for the reasons stated above, that Defendant’s
§ 2255 motion [Doc. 4] be GRANTED as to his conviction for commercial burglary and
DENIED as to his convictions for residential burglary, that the Court VACATE Defendant’s
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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