Luna v. United States of America

Filing 29

SECOND AMENDED REPORT AND RECOMMENDATIONS re 4 MOTION for Supplement filed by Richard E Luna, 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Richard E Luna by Magistrate Judge Kevin R. Sweazea. Objection s to R&R due by 7/5/2017. 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).) (sls)

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

UNITED STATES OF AMERICA,
Plaintiff/Respondent,

No.

16-cv-0343 MV-KRS
12-cr-0969 MV

v.
RICHARD ELIZARDO LUNA,
Defendant/Movant.
SECOND AMENDED PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION
Richard Elizardo Luna, presently incarcerated at FCI Florence, seeks review of his
sentence under 28 U.SC. § 2255 in light of the Supreme Court’s decision in Johnson v. United
States, 576 U.S. __, 135 S. Ct 2551 (2015). In his motion to vacate, Luna contends that his three
convictions for burglary under Section 30-16-3(A) and (B) of the New Mexico Statutes no longer
qualify as violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”),
the basis used to enhance his sentence to 180 months. [Docs. 57 & 61]. The Government has
filed a response in opposition [Doc. 64], and Luna a reply [Doc. 66]. The parties have also on
two occasions submitted objections, responses, and replies to earlier recommendations from this
Court’s predecessor. [See Docs. 70, 72, 76, 77, & 80]. Acting under its inherent authority to
reconsider previous rulings and an order of reference from United States District Judge Martha
Vazquez to conduct proceedings, see 28 U.S.C. § 636, the Court has considered the parties’
submissions and now recommends Luna’s motion be granted and he be resentenced.

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Second Amended PFRD
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I.

BACKGROUND

A. Facts Underlying Conviction
On April 24, 2012, a federal grand jury returned a single-count indictment charging Luna
with being a felon in possession of a firearm contrary to Title 18, Sections 922(g)(1) and
924(a)(2) of the United States Code. [Doc. 2]. The charging document listed three prior felonies
as the basis for the offense, including two convictions for residential burglary and one for
larceny. [Doc. 2, ¶¶1-3]. On December 5, 2012, Luna pleaded guilty to the charge and executed
a formal plea agreement. [Doc. 42]. United States Magistrate Judge Robert Hayes Scott accepted
the plea, and the matter was set for sentencing. [Doc. 43].
The factual basis for Luna’s commission of the offense is set forth in the plea agreement.
[Doc. 42, ¶5]. Luna admitted that in July of 2012, he knowingly possessed a Smith & Wesson
model 5903, 10 rounds of Federal brand 9 millimeter cartridges and a single Winchester brand 9
millimeter cartridge. [Doc. 42, ¶9]. Luna also agreed that “the Court may rely on any of these
facts, as well as facts in the presentence report to determine the Defendant’s sentence, including
but not limited to, the advisory guideline offense level.” [Doc. 42, ¶10]. The parties nonetheless
proposed a sentence of 180 months as representing the appropriate amount of incarceration in
light of the crime’s nature and severity. [Doc. 42, ¶5].
The United States Probation Office prepared a report in advance of Luna’s sentencing.
[CV Doc. 21]. This Presentence Report (“PSR”) noted that Luna “has at least three prior
convictions for a violent felony, or drug offense, or both, which were committed on different
occasions.” [CV Doc. 21, p. 11]. As a result, the Probation Office determined that Luna “is an
armed career criminal and subject to an enhanced sentence under the provisions of 18 U.S.C. §
924(e).” [Id.]. Although the PSR indicated Luna had convictions for seven drug or violent
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Second Amended PFRD
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felonies, the Probation Office relied on three: a June 12, 1987 conviction for residential burglary
in New Mexico’s Second Judicial District; an August 16, 1996 conviction for the same crime in
the same district; and a December 15, 2008 conviction for commercial burglary in the same
district. [Id.]. In a separate section detailing Luna’s full criminal history, the PSR documented a
total of four adult convictions for residential burglary, among numerous others. [Id., pp. 12-29].
On March 22, 2013, Luna filed objections to the PSR. [Doc. 47]. In relevant part, he
challenged his conviction for “commercial burglary . . . as qualifying him as an Armed Career
Criminal” for sentencing purposes. [Doc. 47, pp. 2-3]. Specifically, Luna argued, that conviction
is not a violent felony under the categorical approach and facts of the offense. [Doc. 47, pp. 3-6].
The Government responded to the objection and asserted that there were many other residential
burglary convictions that would support the ACCA enhancement, and generic commercial
burglary is a qualifying violent felony at any rate. [Doc. 49, pp. 4-5]. On April 22, 2013, United
States District Judge Nancy Freudenthal adopted the PSR findings and sentenced Luna to 180
months incarceration, the minimum required by the ACCA. [Docs. 52; 53].
B. Procedural Facts
On April 25, 2016, Luna filed the instant motion pursuant to 28 U.S.C. § 2255 and Johnson
challenging the Court’s use of his burglary conviction under N.M. Stat. Ann. § 30-16-3(B) as a
basis for the ACAA enhancement. [Doc. 57]. The Court subsequently appointed counsel to assist
him. [Doc. 59]. Thereafter, the Government filed a response in opposition [Doc. 64], and Luna a
reply [Doc. 66]. United States District Judge Martha Vazquez referred the matter to this Court’s
predecessor, United States Magistrate Judge Lourdes Martinez, on January 25, 2017 for
proposed findings and a recommended disposition (“PFRD”). [CV Doc. 15].

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On February 14, 2017, Judge Martinez issued the first of two PFRDs. [Doc. 70] In the
first report, Judge Martinez recommended resentencing. [Doc. 70, p. 14]. She reasoned that
under the modified categorical approach, Luna’s conviction for commercial burglary was not an
enumerated violent felony. [Doc. 70, pp. 10-14]. Because that offense did not qualify, there
were only two permissible prior convictions under the ACCA and the 15 year minimum was no
longer appropriate. [Doc. 70, pp. 13-14].
Following objections [Doc. 72], Judge Martinez issued a second PFRD on April 25, 2017
reconsidering her earlier recommendation. [Doc. 76]. Based on Luna’s substantial criminal
history that included additional convictions for residential burglary under Section 30-16-3(A) as
outlined in a separate section of the PSR that had only then become available to the Court, Judge
Martinez recommended that Luna’s motion to vacate his sentence be denied. [Doc. 76, p. 3].
Luna timely objected, urging Judge Vazquez not to adopt the recommendation. [Doc. 77, p. 12].
Luna asserted that the Government waived reliance on the other residential burglaries in the
PSR’s recitation of his criminal history because those were not used in actually enhancing his
sentence—only the two residential burglaries and the single commercial burglary formed the
predicate under the ACCA. [Doc. 77, pp. 5-8].
The Government disagreed in an amended response to Luna’s objection. [Doc. 79]. It
insisted the Eleventh Circuit precedent Luna cited does not support his waiver contention and, at
any rate, the crime of commercial burglary under N.M. Stat. Ann. § 30-16-3(B) qualifies post
Johnson as one of the violent felonies enumerated in the ACCA. [Doc. 78, pp 3-4]. Luna filed a

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Second Amended PFRD
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reply1 on June 7, 2017 reiterating his waiver argument. [Doc. 80]. On June 13, 2017, Judge
Vazquez referred the matter to this Court. [CV Doc. 28].
II. APPLICABLE LAW
An offense under Section 922(1) for being a felon in possession carries a maximum
prison term of ten years so long as the offender has not been convicted of three previous violent
felonies or serious drug offenses. See 18 U.S.C. § 924(a)(2) & (e)(1). If the defendant has the
three prior convictions, the ACCA imposes a minimum sentence of 15 years’ incarceration. At
the time of Luna’s conviction, the ACCA defined violent felonies as an offense “punishable by
more than a year,” involving “as an element the use, attempted use, or threatened use of force,”
or the crime is “burglary, arson, or extortion, involves the use of explosives, or otherwise
involves conduct that presents a serious risk of physical injury to another.” 18 U.S.C. §
924(e)(2)(B). The Court enhanced Luna’s sentence under the ACCA because he was twice
convicted for residential burglary under N.M. Stat. Ann. § 30-16-3(A) and once for commercial
burglary contrary to N.M. Stat. Ann. § 30-16-3(B).
Two years after Luna’s sentencing, the United States Supreme Court held that the
ACCA’s “residual clause”—the one that allows an ACCA enhancement for crimes “otherwise
involving conduct that presents a serious risk of physical injury”— is unconstitutionally vague,
but left intact the enumerated-crimes provision (burglary, arson, extortion, crimes involving
explosives). Johnson, 135 S. Ct. at 2256. Johnson’s holding is retroactive, see Welch v. United
States, __ U.S. __, __, 136 S. Ct. 1257, 1268 (2016), and Luna asserts that the three burglary
convictions upon which the Court based the enhancement do not survive Johnson’s mandate. He
is partially correct, and for that reason the Court recommends he be resentenced.
1

Federal Rule of Civil Procedure 72 does not expressly permit a reply. Because the issue of waiver is well
presented at this point, it is of little consequence but the Court will consider it nonetheless.
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Second Amended PFRD
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III. ANALYSIS
Whether a conviction for burglary qualifies as a violent felony post Johnson requires the
Court to compare that offense under New Mexico law to the federal “generic” version of the
same crime. See Taylor v. United States, 495 U.S. 575, 598 (1990). Under this “categorical
approach,” the Court focuses “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.” Mathis v. United States, __U.S.__, __, 136 S. Ct. 2243, 2248 (2016). If the elements of
New Mexico burglary—or “things the prosecution must prove to sustain a conviction”— are
broader than the federal generic counterpart, meaning they “cover any more conduct than the
generic offense,” then New Mexico burglary cannot be used to enhance a sentence imposed
under the ACCA. Id.
If New Mexico’s burglary statute is “divisible” in that it contains, for example, discrete
subparagraphs describing in essence “multiple crimes” or alternatives with different
punishments, then the Court is obligated to employ the modified categorical approach. Id. Under
this framework, the Court examines the defendant’s underlying charging and sentencing records
to determine the type of burglary under New Mexico law that was the basis for Luna’s
conviction. Shepard v. United States, 544 U. S. 13, 26 (2005) (allowing review of a “limited
class” of documents such as the indictment, jury instructions, and/or plea records to determine
under which part of a divisible criminal statute a defendant was convicted). After determining
the crime is divisible, the Court then applies the categorical approach described above. See id.

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Second Amended PFRD
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A. Application of Categorical and Modified Categorical Approaches.
Two points require less analysis in this case. First, New Mexico’s burglary statute is
divisible. Second, Luna’s two convictions for residential burglary qualify as violent felonies
under the ACCA.
1.

Divisibility of New Mexico’s burglary statute

Section 30-16-3 of the New Mexico Statutes defines “[b]urglary . . . [as] the unauthorized
entry of any vehicle, watercraft, aircraft, dwelling or other structure, moveable or immoveable,
with the intent to commit any felony or theft therein.” The statute then proscribes two categories
of conduct, burglary of a dwelling and burglary of anything else:
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, moveable or immoveable, with the intent to commit
a crime therein is guilty of a fourth degree felony.
N.M. Stat. Ann. § 30-16-3(A) & (B). Because Subsections A and B list “elements in the
alternative” and ascribe different punishments to each, burglary in New Mexico is divisible into
residential (subsection A) and non-residential (subsection B). Mathis, 136 S. Ct. at 2249.
Courts considering Section 30-16-3 under the ACCA have reached the same conclusion.
See, e.g., United States v. Alires, 2017 U.S. Dist. LEXIS 65582, *42 (D.N.M. May 1, 2017);
Turrieta v. United States, 2016 U.S. Dist. LEXIS 151593, *5-6 (D.N.M. Oct. 28, 2016) (burglary
in New Mexico “is divisible into two separate crimes: Subsection (A), the burglary of a dwelling
house; and Subsection (B), the burglary of a vehicle, watercraft, aircraft, or other structure”)
(citing State v. Ervin, 1981-NMCA-068, ¶ 3, 96 N.M. 366, 630 P.2d 765); United States v.
Lemos, 2017 U.S. Dist. LEXIS 58120, *14 (D.N.M. Apr. 17, 2017) (same). In sum, New
Mexico’s burglary statute is divisible and, under the modified categorical approach, the charging
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Second Amended PFRD
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documents reveal Luna was convicted of two offenses of residential burglary under subsection A
and one offense under subsection B for commercial burglary.
2.

Residential burglary

The Court must determine whether residential burglary under Subsection A proscribes
conduct broader or narrower than the generic offense under federal law. See United States v.
Titties, 852 F.3d 1257, 1266 (10th Cir. 2017) (explaining that “[f]or courts faced with a divisible
statute, the modified approach serves—and serves solely—as a tool to identify the elements of
the crime of conviction” and “[o]nce the relevant elements are identified, the court applies the
categorical approach”) (citations omitted). The Court concludes that Section 30-16-3(A)
proscribes conduct narrower than the generic offense under federal law and therefore qualifies as
a violent felony for purposes of the ACCA despite Luna’s argument to the contrary.
Federal law generically defines burglary as “an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United
States, 495 U.S. 575, 598 (1990). Because residential burglary in New Mexico only allows
conviction if the prosecutor proves beyond a reasonable doubt that the defendant entered into a
“dwelling house,” it is narrower than the federal generic version of burglary that proscribes entry
into a dwelling or structure. Compare §30-16-3(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”) with United States v. Silva, 608 F.3d 663, 668 (10th Cir. 2010) (explaining that
the term “structure” in the federal generic definition means any “enclosed space or building, . . .
not in a boat or motor vehicle”).
Luna’s contention that federal law defines burglary of a dwelling as burglary of “an
enclosed space that is used or intended for use as a human habitation” and his reliance on United
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Second Amended PFRD
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States v. Rivera-Oros, 590 F.3d 1123, 1132 (10th Cir. 2009) for that proposition, misses the
mark because Rivera-Oros specifically defined federal burglary for purposes of the Sentencing
Guidelines and eschewed application under the ACCA. See id. More compelling, the federal
courts that have addressed residential burglary under New Mexico law in the context of the
ACCA have roundly concluded that it is narrower than its federal counterpart. See, e.g., Alires,
2017 U.S. Dist. LEXIS 65582, at *55 (concluding “that NMSA 1978, § 30-16-3(A) is the same
as, or narrower than, those of the generic offense—here, that offense being burglary.”); United
States v. Marquez, 2017 U.S. Dist. LEXIS 68938, *24 (D.N.M. May 5, 2017) (“[B]urglary of a
dwelling under § 30-16-3(A) meets the generic definition of ‘burglary.’”); Sanchez v. United
States, 2017 U.S. Dist. LEXIS 65460, *35 (D.N.M. Apr. 30, 2017) (“Sanchez has not shown that
there is a realistic probability that New Mexico residential burglary could include conduct that
falls outside the generic definition of burglary.”).
The Court finds no reason to depart from these cases. Under the modified categorical
approach, Section 30-16-3(A), residential burglary, is narrower than generic burglary according
to federal law. Luna’s two convictions for residential burglary under Section 30-16-3(A) each
constitute a violent felony for purposes of enhancement under the ACCA.
B. Non-Residential Burglary Under the Modified Categorical Approach.
Whether Luna’s conviction under Section 30-16-3(B) for commercial burglary qualifies
as an enumerated violent felony under the ACCA is not as straightforward. The Court concludes
this conviction does not qualify and, contrary to the Government’s position, is not further
divisible so as to allow the Court to examine Luna’s conviction in more detail.

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1.

Non-residential burglary under New Mexico law

Generic burglary under federal law requires the unlawful entry of a structure with the
intent to commit a crime therein. Non-residential burglary under state law proscribes entry into
“any vehicle, watercraft, aircraft or other structure, moveable or immovable, with the intent to
commit a crime therein.” N.M. Stat. Ann. § 30-16-3(B). As the case law commands, the Court
must determine whether non-residential burglary is broader than its federal counterpart under the
categorical approach. If it is, then it may not be used to enhance Luna’s sentence.
Facially, Subsection B appears broader: federal law requires entry in to a structure while
New Mexico’s statute permits a conviction for entry into a vehicle, watercraft, aircraft in
additional to moveable and immovable structures. Compare Taylor, 495 U.S. at 598 with N.M.
Stat. Ann. § 30-16-3(B). The underlying assumption, of course, is that the term “structure” in
federal law would not include a vehicle, watercraft, or aircraft, or something moveable, thus
making subsection B broader. The assumption is correct.
Generic burglary, as the United States Supreme Court has interpreted it, excludes
commission of that offense in vehicles, watercraft, aircraft, and moveable structures. See Taylor,
495 U.S. at 599 (generic burglary’s locational element does not include “automobiles”);
Shepard, 544 U.S. 13, 15-16 (2005); (generic burglary is limited to burglaries “committed in a
building or enclosed space . . . not in a boat or motor vehicle”). Thus, the federal definition of
“structure” is not expansive enough to reach all the alternatives that New Mexico law would
allow under Subsection B. It therefore embraces more, not less, conduct than the generic crime
of burglary and may not be used under the ACCA to enhance Luna’s sentence. See Mathis, 136
S. Ct. at 2250 (holding that Iowa burglary statute that encompassed “any building, structure, [or]

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Second Amended PFRD
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land, water, or air vehicle” was broader than the federal generic version and could not be used
under the ACCA).
The Government does not seriously disagree with this reasoning. Instead, it argues that
the Court may peek behind Luna’s conviction to see that it was, in fact, for a commercial
building. Since a commercial building is in line with the federal generic, it surmises, Luna’s
offense qualifies. The problem is, and the Government concedes, the analysis turns on whether,
Subsection B is itself further divisible.
2. Divisibility of non-residential burglary under New Mexico law
The Court is permitted to look at the nature of Luna’s convictions under the modified
categorical approach only because New Mexico’s burglary statute has two discrete subsections,
A and B, that describe separately punishable crimes. Once the Court determines divisibility, as it
did here, it must then again apply a pure categorical approach. See Titties, 852 F.3d at 1266.
The only way the Court can further review the specifics of Luna’s offense under Subsection B is
if that provision is further divisible. It is not.
The sine qua non of the analysis is whether Subsection B describes different means (or
examples) of committing the same crime or, in essence, identifies another offense carrying a
different punishment. The structure of the New Mexico’s burglary statute is relatively
straightforward. Burglary of a dwelling is punishable as a third degree felony (Subsection A);
and all other types of non-residential burglary are punishable as a fourth-degree felony
(Subsection B). In other words, those are the only two types of burglary in New Mexico. As an
illustration of the second type, the New Mexico legislature has provided non-exclusive examples
such an aircraft, watercraft, and vehicles. If there was any doubt these were simply examples
and not separate offenses, Subsection B includes all other moveable or non-moveable structures,
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Second Amended PFRD
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meaning a whole range of potential conduct could be used for a conviction for the same violation
of Subsection B.

See Titties, 852 F.3d at 1267 (explaining that “[i]f the listed items are

alternative means of satisfying an element [of the crime], then the [subsection] is not divisible
and the categorical approach must be applied”) (citation omitted). Thus, Subsection B is not
further divisible.
Post Johnson case law has reached the same conclusion. See, e.g., Lemos, 2017 U.S. Dist.
LEXIS 58120, at *20 (concluding that Subsection B “is not divisible, is broader than generic
burglary, and is therefore not an enumerated violent felony under the ACCA”); United States v.
Harris, 2017 U.S. Dist. LEXIS 59627, *6 (D.N.M. Feb. 1, 2017) (explaining that the court is
“not persuaded by the United States’s contention that paragraph (B) defines multiple crimes and
lists alternative elements. Rather, paragraph (B) defines one crime[.]”). The Court finds no
reason to depart from these cases. Luna’s conviction under Subsection B does not qualify as a
violent felony and may not be used as a predicate conviction for enhancing a sentence pursuant
to the ACCA.
C. Need for Resentencing
Although Luna’s conviction under Section 30-16-3(B) may not be used to enhance his
sentence, the Government has maintained throughout the proceedings that Luna’s lengthy
criminal history shows other permissible convictions for residential burglary that survive
Johnson’s abolition of the ACCA’s residual clause and that serve as predicate offenses to support
the existing enhancement of Luna’s sentence pursuant to the ACCA. The Court disagrees and
determines fundamental notions of due process and fair play require resentencing.
Consistent with the position of the Government and the Probation Office, the Court
recognizes that Luna has been convicted of other residential burglaries. Under the criminal
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history section of the PSR, Luna was convicted of at least two other offenses that are not listed in
the ACCA portion of the PSR. Despite Luna’s protestation to the contrary, those other two
convictions for residential burglary appear to qualify under the ACCA as violent felonies post
Johnson as explained above. The problem is, however, neither the Government nor the Probation
Office told Luna prior to his sentencing hearing that they would rely on these other convictions
to enhance his sentence under the ACCA.
Examining the record, the indictment lists two burglary offenses and one for larceny as
the predicate offenses to charge Luna as a felon in possession. The three prior convictions listed
in the indictment are not the same as those identified in the PSR as the basis for increasing
Luna’s sentence to 180 months as an armed career criminal. Paragraph 28 of the PSR, entitled
“Chapter Four Enhancement,” claims Luna has “seven violent felonies” and therefore “subject to
an enhanced sentence under . . . 18 U.S.C. § 924(a).” However, Paragraph 28 only describes the
factual predicate for three prior convictions, one of which is the commercial burglary conviction
that does not now meet the post Johnson test. The criminal history portion of the PSR also
shows that the Probation Office had not, in many instances, received confirmation of the details
of Luna’s past convictions that would substantiate the full nature of the crimes.
To be fair, Luna could have objected to the PSR’s criminal history section. His attorney
certainly filed written objections to the use of the commercial burglary conviction as a predicate
for enhancement under the ACCA. The Court is also cognizant of the fact that the Government
responded to the objections and pointed to the PSR’s listing of other convictions for residential
burglary as rendering Luna’s challenge pointless and that Luna’s plea agreement indicated his
entire criminal history could be used to enhance his sentence.

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In terms of fair play, however, the record before the Court does not show how, if at all,
the sentencing judge resolved Luna’s objection or whether the judge considered the other
convictions for residential burglary in enhancing Luna’s sentence. More fundamentally, Luna
could not have anticipated at sentencing that the law would shift in 2016 to make specifically
challenging his criminal history necessary to avoid the use of prior convictions as a basis for his
sentence under the ACCA. Indeed, his history is so lengthy that even if he were successful on a
challenge to some, it may well have made no difference to the level the Sentencing Guidelines
would impose for the total number of crimes (as opposed to the ACCA determination).
The essence of due process is the right to be heard in a meaningful way at a meaningful
time. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976). The Court does not doubt that Luna
was heard throughout his criminal case in a meaningful way, only that in terms of Johnson’s
watershed ruling, his ability to raise objections to the remainder of the criminal history not
ostensibly relied on in enhancing his sentence under the ACCA, could not have been meaningful.
Courts that have considered due process in this context have suggested the PSR’s reliance
on the criminal history section to supplement the ACCA-enhancement portion where Johnson no
longer is satisfied may be problematic. See McCarthan v. Warden FCC Coleman-Medium, 811
F.3d 1237 (11th Cir. 2016), vacated sub nom on other grounds, McCarthan v. Dir. Of Goodwill
Indus.-Suncoast, 851 F.3d 1076 (2017) (en banc). In McCarthan, a panel of the Eleventh Circuit
examined whether 28 U.S.C. Section 2255’s “savings clause” would allow the habeas petitioner
another round of collateral review of his sentence. In so doing, the Eleventh Circuit engaged in a
merits-type analysis and addressed the propriety of reliance on other post Johnson qualifying
convictions from the PSR.

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The court of appeals decided it was proper. The court, however, made two important
observations. First, the “PSR and the sentencing court should specifically identify which of a
defendant’s prior convictions qualify a defendant for an enhanced ACCA sentence.” McCarthan,
811 F.3d at 1253. Failure to do so, the court reasoned, deprives a criminal defendant of notice of
“the specific convictions on which an ACCA enhancement is recommended and imposed,”
which “would raise serious due-process concerns.” Id. Second, where a criminal defendant does
not object to the PSR’s failure to identify which of his many convictions qualify under the
ACCA, then he may not complain later. See id.
In contrast to McCarthan, the PSR in Luna’s case specifically identified three convictions
that formed the basis of the ACCA enhancement. One of those prior convictions no longer
qualifies as a legitimate predicate for increasing Luna’s sentence. Thus, the general observation
from McCarthan has some persuasion—that the defendant must receive notice of all of the prior
convictions to be used under the ACCA.
Only one other case in this District appears to have examined the need for resentencing
where other convictions from the criminal history section would qualify under the ACCA post
Johnson. In United States v. Garcia, 2017 U.S. Dist. LEXIS 13250, *62 (D.N.M. Jan. 31,
2017), the court “agree[d] . . . that McCarthan does not support a finding that the United States
waived reliance on Garcia’s robbery conviction (set forth in the criminal history section, but not
the ACCA portion of the PSR) to establish his ACCA eligibility.” In concluding that the
defendant had sufficient notice of the basis for the enhancement, however, the court noted the
government filed a “Notice,” after the PSR was disclosed, identifying the offenses omitted in the
PSR’s ACCA section as those it would use to seek an enhanced sentence under the ACCA. See
id. In addition, the sentencing judge recited that he had relied on the PSR as a whole, considered
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the specific factors from the Sentencing Guidelines, and announced on the record that the
defendant was a six-time convicted felon, which necessarily addressed the omitted offense.
The type of notice in Garcia is not present on this record. There is no filed notice to seek
an enhanced sentence on the basis of the other residential burglaries. There is no indication that
the sentencing judge specifically contemplated the issue and made a ruling.

Without this

information, it does not appear Luna received adequate notice especially in light of the
fundamental change in the law. Luna asserts the Government has forever waived the issue
because it did not object to the sentencing judge’s reliance on fewer than all of the ACCA
qualifying convictions. The Court is not persuaded on the record before it and does not go as far
as to say that the Government is barred from raising the other offenses upon resentencing—only
that Luna should have the opportunity to challenge the other convictions with the benefit of now
understanding Johnson’s requirements. The Court therefore recommends Luna be resentenced.
IV. CONCLUSION
For the reasons stated above, the Court recommends that Luna’s motion under 28 U.S.C.
§ 2255 [CV Docs. 1& 4; Docs. 57 & 61] be granted and that Luna be resentenced.

_________________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
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.
United States v. Luna
Second Amended PFRD
Page 16 of 16