Luna v. United States of America

Filing 36

ORDER ADOPTING 32 REPORT AND RECOMMENDATIONS by District Judge Martha Vazquez; OVERRULING 33 Objections; DENYING 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) and DENYING 4 MOTION to Supplement Motion to Vacate and Correct Sentence Pursuant to 28 U. S. C. Sect. 2255. This case is DISMISSED WITH PREJUDICE, and a final judgement shall be entered concurrently with this Order. See Order for Specifics. (gr)

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.

ORDER ADOPTING REPORT AND RECOMMENDATION, OVERRULING
OBJECTIONS, DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE, AND DISMISSING CASE WITH PREJUDICE
THIS MATTER comes before the Court on Richard Luna’s objections to Magistrate
Judge Kevin R. Sweazea’s third amended report filed on August 8, 2017, recommending that the
Court deny Luna’s motion to vacate, correct, or set aside sentence. [See Docs. 57, 61, 84, &
86].1 Pursuant to 28 U.S.C. § 636(b), the Court has made a de novo determination of all matters
to which Luna objected. Being fully advised, the Court OVERRULES Luna’s objections,
ADOPTS the magistrate judge’s third amended proposed findings and recommended disposition
(“PFRD”), and DISMISSES the case with prejudice.
BACKGROUND
On December 5, 2012, Luna pleaded guilty to possessing a firearm and ammunition as a
felon. [Doc. 42]. Under the felon-in-possession statute, Luna’s conviction carried a maximum
sentence of ten years. See 18 U.S.C. §§ 922(g)(1) & 924(a)(2). However, because Luna had
1

The docket numbers (“Doc.”) cited herein refer to the criminal docket unless denominated as “CV Doc.” In the
District of New Mexico, pleadings and other papers submitted in Section 2255 cases commenced before January 1,
2017, are filed in the underlying criminal case and a separately opened civil matter created upon the filing of the
motion challenging the sentence. The two electronic dockets, while similar, are not identical. For that reason, the
Court uniformly cites to the criminal docket except when a submission is only available among the civil filings.
Page 1 of 10

previously committed more than three “violent felonies,” as reflected by multiple convictions for
burglary in New Mexico listed in a presentence report (“PSR”), Luna was considered an “armed
career criminal.” [CV Doc. 21-1, p. 11 (listing past convictions)]. As such, the Armed Career
Criminal Act (“ACCA”) mandated a harsher prison term of at least fifteen years. See 18 U.S.C. §
924(e)(1)-(2). Luna was sentenced to the fifteen-year minimum on April 22, 2013. [Doc. 53].
Two years later, the Supreme Court invalidated the ACCA’s “residual clause,” see
Johnson v. United States, 576 U.S.__, 135 S. Ct. 2551 (2015), which forms the basis for Luna’s
collateral attack under Section 2255. The residual clause refers to the second sentence of Section
924(e)(2)(B)(ii) that broadly defines “violent felony” as “otherwise involv[ing] conduct that
presents a serious risk of physical injury to another.” 18 U.S.C §924(e)(2)(B)(ii). Important
here is that after Johnson, an armed career criminal who received the fifteen-year minimum
because of the residual clause is entitled to resentencing.2 By contrast, a career criminal
sentenced on the basis of the ACCA’s other, disjunctive definitions of “violent felony” is
unaffected by Johnson: the “force clause,” which includes “the use, attempted use, or threatened
use of physical force against . . . another”; and the “enumerated clause” identifying specific
offenses: “burglary, arson, or extortion . . .[or crimes] involve[ing] explosives.” 18 U.S.C. §
924(e)(2)(B)(i)-(ii).
In his motion for resentencing, Luna argued that his past convictions for burglary under
New Mexico law fall into the former camp. Each of the four PFRDs issued by the magistrate
judges agreed that Johnson invalidated Luna’s conviction for non-residential burglary under

2

Under these circumstances, a defendant must still submit his motion under Section 2255 within the one-year statute
of limitation that expired on June 27, 2016, a year after Johnson was handed down. See 28 U.S.C. § 2255(f)(3);
Welch v. United States, __ U.S. __, __, 136 S. Ct. 1257, 1268 (2016). Luna filed his motion on April 25, 2016,
within the time permitted.
Page 2 of 10

N.M. Stat. Ann. § 30-16-3(B), but concluded Luna’s other convictions for residential burglary,
N.M. Stat. Ann. § 30-16-3(A), satisfied the enumerated clause. [See Docs. 70, 76, 81, & 84].
What accounts for the multiple PFRDs is that Luna committed five residential burglaries in New
Mexico, but not all of those convictions were described in paragraph 28, the specific part of the
PSR dedicated to the ACCA. [CV Doc. 21-1].3 Judge Martinez initially recommended that Luna
be resentenced, reasoning that without the commercial burglary offense, Luna only had two
qualifying convictions for residential burglary, one short of the ACCA’s threshold. [Doc. 70].
When the Government objected that there were multiple additional qualifying crimes other than
those set forth in paragraph 28 of the PSR, Judge Martinez amended her PFRD, recommending
that the Court use Luna’s other convictions for residential burglary listed in the “criminal
history” section of the PSR. [Doc. 76].
When Judge Martinez retired, Judge Sweazea was reassigned the case and entered a
second-amended PFRD. [Doc. 81]. Judge Sweazea agreed with the analysis contained in Judge
Martinez’s PFRDs, but reasoned that due process required Luna be given the opportunity at
resentencing to dispute any conviction not specifically listed in paragraph 28. [Id.]. In objecting
to the second-amended PFRD, the Government pointed out that paragraph 28 actually identified
three separate convictions for residential burglary. [Doc. 82]. Although in several rounds of
briefing the parties failed to point out this critical fact, Judge Sweazea determined it was

3

Excluding Luna’s convictions as a juvenile, the PSR lists (1) a June 12, 1987 conviction for residential burglary
committed on August 29, 1986 from the Second Judicial District Court in Albuquerque as identified in the “criminal
history section” of the PSR; (2) a June 12, 1987 conviction for residential burglary committed on August 19, 1986
from the Second Judicial District Court in Albuquerque as identified in both the “criminal history” section of the
PSR and paragraph 28; (3) a June 12, 1987 conviction for residential burglary committed on March 26, 1987 from
the Second Judicial District Court in Albuquerque as reflected in both the “criminal history” section of the PSR as
well as paragraph 28; (4) a June 3, 1996 conviction for residential burglary from the Fifth Judicial District Court in
Roswell for which he was arrested on August 23, 1994 as identified in the “criminal history” section of the PSR; (5)
an August 16, 1996 conviction for residential burglary from the Second Judicial District Court in Albuquerque for
which he was arrested on December 19, 1995 as identified in both the “criminal history” section of the PSR and
paragraph 28. [Doc. 21-1, pp. 11-18].
Page 3 of 10

dispositive, assuaged any due process concerns, and recommended in a third-amended PFRD
that the Court deny Luna’s Section 2255 motion. [Doc. 84]. Luna objects to this final PFRD
arguing, in sum, that Judge Sweazea misapplied the law in concluding that his New Mexico
convictions for residential burglary are violent felonies under the ACCA and that Luna had fair
notice of the convictions upon which the ACCA enhancement would be based. [Doc. 86].
STANDARD
The Court undertakes “a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1)(C). “[O]bjections to the magistrate judge’s report must be both timely and specific to
preserve an issue for de novo review by the district court[.]” United States v. One Parcel of Real
Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). The objections must be “sufficiently specific to
focus the district court’s attention on the factual and legal issues that are truly in dispute.” Id.
Likewise, “theories raised for the first time in objections . . . are deemed waived.” United States
v. Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001) (citation omitted).
DISCUSSION
Luna’s objections comprise two alternative arguments that the magistrate judge
misapplied the law: residential burglary under N.M. Stat. Ann. § 30-16-3(A) is not a violent
felony under the ACCA, and even if it were, the Court may only count two such convictions
against him for purposes of sentencing. The Court disagrees and overrules Luna’s objections.
Residential Burglary
Luna asserts that residential burglary, N.M. Stat. Ann. § 30-16-3(A), is not a violent
felony under the enumerated clause because the offense encompasses more conduct than the
federal “generic” version of burglary. Luna would be correct, however, only if a comparison

Page 4 of 10

under the categorical approach demonstrates that the elements of residential burglary—or “things
the prosecution must prove to sustain a conviction”— are broader than federal burglary, meaning
those elements “cover[] []more conduct than the generic offense.” Mathis v. United States,
__U.S.__, __, 136 S. Ct. 2243, 2248 (2016) (citations omitted).4
As the Court understands his argument, Luna acknowledges a statute criminalizing
burglary of a home would likely be a categorical match. It is Section 30-16-3(A)’s use of the
term “dwelling house” that gives Luna pause. See N.M. Stat. Ann. § 30-3-16-3(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.”) (Emphasis added). According to Luna, “dwelling
house” encompasses boats and vehicles used for habitation that federal law would not recognize
as generic burglary. Compare N.M. Rule Ann. 14-1631 (defining “dwelling house” for purposes
of the Uniform Jury Instructions as “any structure, any part of which is customarily used as
living quarters”) with Shepard v. United States, 544 U.S. 13, 15-16 (2005) (stating the federal
generic is limited to burglaries “committed in a building or enclosed space” but “not in a boat or
motor vehicle”).
Federal law is not, however, as narrow as Luna claims and New Mexico law is not as
expansive. In United States v. Spring, the Tenth Circuit clarified that generic burglary extends to
a “mobile home or a vehicle adapted for the overnight accommodation of persons.” 80 F.3d
1450, 1462 (10th Cir. 1996) (citation omitted). Likewise, no New Mexico court has taken the

4

The Court recognizes, and the parties agree, that burglary under N.M. Stat. Ann. § 30-16-3 is divisible between
subsection (A) that punishes as a third-degree felony burglary of residences and subsection (B), burglary of
everything else, which is a fourth-degree felony. Where a statute is divisible as here, the Court applies the modified
categorical approach, which allows for the examination of a limited class of records to permit the Court to determine
under what provision the defendant was convicted. See Mathis, 136 S. Ct. at 2249. In this case, Luna objects to the
magistrate judge’s determination that his convictions for residential burglary are violent felonies. Because there is
no underlying dispute about divisibility, the Court is left to apply the categorical approach to subsection (B). See id.
at 1253 (explaining that after the Court determines the under which provision of a divisible statute a defendant is
convicted, the Court then applies the categorical approach to that provision).
Page 5 of 10

Uniform Jury Instructions’ definition of “dwelling house” and use of “structure” to include
conveyances primarily intended for transportation. Cf. United States v. Silva, 608 F.3d at 663,
668 (10th Cir. 2010) (generic burglary includes “a building or other place designed to provide
protection for persons or property against weather or intrusion,” but not “conveyances whose
primary purpose is transportation”) (citation omitted).
The fact that case law has not endorsed Luna’s view is significant. Although the absence
of authority gives rise to a “theoretical possibility” that “structure” might include vehicles, there
must be a “realistic probability” beyond the mere “application of legal imagination” that the New
Mexico Supreme Court would define “structure” in the way Luna advocates. Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007). Contrary to Luna’s argument, all indications are that
New Mexico would not embrace Luna’s expansive position.
For one, to read “dwelling house” to include a vehicle would render superfluous the New
Mexico legislature’s obvious choice to punish burglaries of residences distinct from all other
burglaries. Compare N.M. Stat. Ann. § 30-3-16(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 § 30-16-3(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.”). Luna’s interpretation defies the statute’s
plain language.
For another, New Mexico has endorsed the common law rule that a “building is not a
dwelling before the first occupant has moved in; nor does it continue to be a dwelling after the
last occupant has moved out with no intention of returning.” See State v. Ervin, 630 P.2d 765,
766 (N.M. Ct. App. 1981) (citation omitted). This statement connotes some temporal

Page 6 of 10

permanency with respect to habitation that is not obviously reconcilable with a “structure” that is
primarily used for transportation. More significantly, the New Mexico Court of Appeals has
concluded that criminal trespass—the unauthorized entry onto the “lands of another”—is a lesser
included offense of residential burglary because a “dwelling house” is necessarily on the “lands
of another.” State v. Ruiz, 617 P.2d 160, 168 (N.M. Ct. App. 1980), superseded by statute on
other grounds. In Ruiz, the court reasoned that “lands” encompassed “buildings and fixtures,
and is synonymous with real property,” not vehicles, water or aircraft. Id. (“When one enters
another’s dwelling house, under our burglary statute, one has entered lands of another,” which
“would not apply if the burglary was of a vehicle, watercraft or aircraft.”) (citation omitted).
Under Ruiz’s logic, “dwelling house” excludes vehicles.
Contrary to Luna’s assertion, State v. Foulenfont 895 P.2d 1329 (N.M. Ct. App. 1995)
does not give rise to the “realistic probability” Luna needs for relief under Johnson. In
Foulenfont, the New Mexico Court of Appeals considered the term “other structure” as used in
both the preamble of the burglary statute and in subsection B, the non-residential burglary
provision, and concluded that a fence is not a “structure.” Foulenfont, 895 P.2d.at 1332. The
case does not interpret the term “dwelling house” and the Court does not find it persuasive here.5
As every court in this District to have considered the issue has held, residential burglary in New
Mexico is either equal to or narrower in scope than its federal “generic” counterpart. See United
States v. Marquez, 2017 U.S. Dist. LEXIS 68938, *24 (D.N.M. May 5, 2017); United States v.
Alires, 2017 U.S. Dist. LEXIS 65582, **54-55 (D.N.M. May 1, 2017); Sanchez v. United States,
2017 U.S. Dist. LEXIS 65460, *34 (D.N.M. April 30, 2017). A conviction under Section 30-165

Nor does the Court find helpful Luna’s citation to State v. Alvarez-Lopez, 98 P.2d 699 (N.M. 2014), which
concerned aggravated burglary of a mobile home. Even if aggravated burglary were the same offense, the Tenth
Circuit has held that generic burglary under federal law includes mobile homes. See Spring, 80 F.3d at 1462. The
same is true of State v. Romero, 958 P.2d 119 (N.M. App. 1998) and State v. Daugherty, 2013 N.M. Unpub. LEXIS
13 (N.M. Aug. 1, 2013), both of which concerned aggravated burglary in mobile homes.
Page 7 of 10

3(A) is, therefore, a violent felony under the ACCA, and Luna’s convictions for the offense
qualify as predicates for enhancement of his sentence. The Court overrules Luna’s objections
asking the Court to hold otherwise.
Number of Convictions
Luna’s alternative challenge attacks—as it must—the Court’s ability to use all but two of
his past convictions for residential burglary. Luna insists that the Government waived reliance
on any other conviction because he was not provided adequate notice of what past offenses listed
in the PSR would be used against him. The Court disagrees. In his plea agreement, Luna
covenanted that “the Court may rely on . . . facts in the presentence report to determine
Defendant’s sentence.” [Doc. 42, ¶ 10]. Luna does not deny committing the residential
burglaries listed in the criminal history section of the PSR, that there are more than three
residential burglaries total, or these offenses count as “facts” upon which the Court was entitled
to rely. If this provision were not sufficient notice itself, paragraph 28 of the PSR especially
devoted to the ACCA enhancement lists three separate convictions for residential burglary in
New Mexico. [CV Doc. 21-1, ¶28].
The Court recognizes that the parties and magistrate judges overlooked that paragraph 28
contained three separate residential-burglary convictions. And to be fair, paragraph 28 consists
of only three numbered subsections; subsection 2 describes one conviction for residential
burglary and subsection 3 describes one conviction for commercial burglary, whereas subsection
1 lists two convictions for residential burglary, committed on separate dates, with different
victims, but for which a sentence was entered on the same date. [Id.]. Although it might be
preferable that the PSR identify past convictions in a separately numbered paragraphs, the failure

Page 8 of 10

to do so does not rise to a constitutional violation. Luna does not provide any authority to
suggest otherwise.
Additionally, Luna’s objection prior to sentencing to the use of the commercial-burglary
conviction listed in paragraph 28 of the PSR as a basis to enhance his sentence demonstrates that
he was afforded notice of the crimes upon which the enhancement would be based and was given
the opportunity to object to the use of those crimes. [Doc. 47]. Prior to the objection, the
Government had already listed four convictions in paragraph 28 and argued that the convictions
in paragraph 28 formed a sufficient basis to enhance Luna’s sentence. In response to the
objection, the Government informed the Court of all of the other convictions for residential
burglary in the criminal history section of the PSR that would qualify even if the commercial
burglary was not a violent felony. [Doc. 49]. Thus, the Court is not persuaded that the
Government waived reliance on the three residential burglaries set out in paragraph 28 of the
PSR. See, e.g., United States v. Miller, 868 F.3d 1182, n. 2 (10th Cir. 2017) (“A waived claim or
defense is one that a party has knowingly and intelligently relinquished . . . .”).
True, 18 U.S.C. § 3553(c) requires the Court to state the reasons for the sentence
imposed. The Court agrees with Luna that a defendant is entitled to know what specific
convictions will be used for an enhancement under the ACCA. Luna, however, received this
information, although not in the form he now argues he should have received it—separate
paragraphs each containing a single conviction. Even under McCarthan v. Warden FCC
Coleman-Medium, 811 F.3d 1237 (11th Cir. 2016), vacated sub nom McCarthan v. Dir. Of
Goodwill Indus.-Suncoast, 851 F.3d 1076 (2017) (en banc), upon which Luna initially relied in
making his due-process argument, it was incumbent upon Luna to make a specific objection to
the PSR’s use of residential burglary. Luna did not.

Page 9 of 10

Ultimately, Luna was given a copy of the PSR, told in the specific portion of the PSR
dedicated to enhancements under the ACCA of three prior convictions under New Mexico law
for residential burglary and one for commercial burglary that would be used, and given an
opportunity to object. Due process does not require anything more, and the Court overrules
Luna’s objections asserting the contrary.
CONCLUSION
For the reasons stated above, Luna was convicted of at least three violent felonies under
the ACCA that survive Johnson’s abolition of the residual clause, and those convictions were
properly relied upon to enhance Luna’s sentence.
IT IS THEREFORE ORDERED that
1. Luna’s objections to the third-amended PFRD [Doc. 86; CV Doc. 33] are
OVERRULED.
2. The Third Amended Proposed Findings and Recommended Disposition [Doc. 84; CV
Doc. 32] are ADOPTED.
3. Luna’s motion pursuant to Section 2255 [Docs. 57 & 61; CV Docs. 1 & 4] is
DENIED.
4. This case is DISMISSED WITH PREJUDICE, and a final judgement shall be
entered concurrently with this Order.

___________________________________
HONORABLE MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE

Page 10 of 10