Luna v. United States of America

Filing 20

ORDER TO SUBMIT PRESENTENCE REPORT by Magistrate Judge Lourdes A. Martinez. (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.

ORDER TO SUBMIT PRESENTENCE REPORT
THIS MATTER is before the Court sua sponte and upon the submission on
March 23, 2017, of a “Second Memorandum” by the United States Probation Office. [Doc. 19].
In the Proposed Findings and Recommended Disposition (Doc. 16) (“PF&RD”), entered in this
case on February 14, 2017, the Court relied upon the parties’ statements in their briefing on
Defendant/Movant’s (“Defendant’s”) § 2255 motion that Defendant was subject to the Armed
Career Criminal Act (“ACCA”) based on two prior convictions for residential burglary, and one
prior conviction for commercial burglary. See [Doc. 16 at 2] (relying on Doc. 4 at 2 and Doc. 8
at 2). The Court noted:
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.

Id. at 2, n.3.

In the Probation Office’s Second Memorandum, filed in this case on

March 23, 2017, the probation officer states that, based on the PF&RD, “the defendant’s case was
re-reviewed,” and “defendant has a total of five Residential Burglary convictions . . . each which
occurred on occasions different from one another and that qualify as violent felonies.” [Doc. 19
at 1]. The probation officer, therefore, states that Defendant is an armed career criminal subject to
an enhanced sentence under the ACCA. Id.
Because the Second Memorandum appears to be at odds with the parties’ statements in
their briefs regarding Defendant’s § 2255 motion, the Court will require, within ten (10) days of
entry of this Order that Defendant, through counsel, either file under seal the original
Presentence Report relied on in support of his § 2255 motion, and any addenda, or e-mail it to
[e-mail].
IT IS SO ORDERED.

______________________________________
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE

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