Luna v. United States of America

Filing 22

AMENDED REPORT AND RECOMMENDATIONS by Magistrate Judge Lourdes A. Martinez re 4 MOTION to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA). Objections to R&R due by 5/9/2017. 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.

AMENDED PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION1
THIS MATTER is before the Court on reconsideration of the Court’s Proposed Findings
and Recommended Disposition (Doc. 16) (“PF&RD”), filed February 14, 2017, in light of the
submission, on March 23, 2017, of a “Second Memorandum” by the United States Probation
Office [Doc. 19].

In the original PF&RD, the Court considered the claims raised in

Defendant/Movant’s (“Defendant’s”) § 2255 motion [Doc. 4] 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. The Court found that New Mexico residential burglary is not
broader than the federal, generic definition, and recommended denying Defendant’s claim that his
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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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residential burglary convictions do not fall under the ACCA’s enumerated clause. See [Doc. 16
at 9-10]. The Court further found that New Mexico commercial burglary is broader than the federal
generic definition of burglary, and recommended granting Defendant’s claim that his conviction for
commercial burglary may not be used as an ACCA-predicate offense under the enumerated clause.
See id. at 13-14. The Court relied upon the parties’ statements in their briefing on 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 id. at 2 (relying on Doc. 4 at 2 and Doc. 8 at 2). The parties did not provide a copy of the
Presentence Report upon which they relied in their briefs to the Court. Therefore, the Court found
that, absent Defendant’s prior conviction for commercial burglary, Defendant was left with only
two prior violent felony convictions instead of the three that the ACCA requires for enhancing a
sentence, and recommended vacating Defendant’s sentence and resentencing Defendant absent the
ACCA-enhancement. See id. at 14.

In the Probation Office’s March 23, 2017 Second Memorandum, the probation officer
states that, based on the original 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. On March 27, 2017, the Court ordered Defendant to provide the Court with a
copy of the Presentence Report upon which he relied in support of his § 2255 motion. See
[Doc. 20].

On April 5, 2017, Defendant filed under seal a copy of his February 7, 2013

Presentence Report, an addendum dated March 29, 2013, and a memorandum dated June 8, 2016.
[Doc. 21]. This report shows that Defendant has five residential burglary convictions, not just
two as stated by the parties. See [Doc. 21-1 at 17, 19, and 20].

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Based on this new information, the Court submits this amended PF&RD, in which the
Court recommends, for the reasons stated in the original PF&RD, incorporated by reference as if
fully set forth herein, 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. However,
because Defendant has five prior residential burglary convictions, all of which qualify as prior
convictions under the ACCA, the Court no longer recommends that Defendant’s sentence be
vacated or that Defendant be resentenced and, instead, recommends that Defendant’s § 2255
motion be DENIED and that this case be DISMISSED with prejudice.

______________________________________
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE

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