Sandoval v. United States of America

Filing 12

Proposed Findings and Recommended Disposition by Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 6 Plaintiff's Amended MOTION to Vacate a Sentence Under Johnson v. United States be DENIED as outlined in the PF&RD. Objections to PF& RD due by 2/10/2017. 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).) (jrt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOHNATHAN SANDOVAL,
Plaintiff-Petitioner,
v.

No.

CV 16-410 LH/CG
CR 11-2992 LH

UNITED STATES OF AMERICA,
Defendant-Respondent.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner Johnathan Sandoval’s Amended
Motion to Vacate a Criminal Sentence Pursuant to 28 U.S.C. § 2255 (Johnson v. United
States) (the “Motion”), (CV Doc. 6), filed September 9, 2016; and Respondent United
States’ Response to Defendant’s Motion to Correct Sentence Pursuant to 28 U.S.C. §
2255 (the “Response”), (CV Doc. 11), filed December 23, 2017.1 Petitioner has not filed
a reply, and the time for doing so has passed. D.N.M.LR-Civ. 7.4(a). United States
District Judge C. Leroy Hansen referred this case to Magistrate Judge Carmen E. Garza
to perform legal analysis and recommend an ultimate disposition. (CV Doc. 3). After
considering the parties’ filings and the relevant law, the Court RECOMMENDS that
Petitioner’s Motion be DENIED.
I.

Background
On May 20, 2013, Petitioner pled guilty to one count of being a felon in

possession of ammunition, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). (CR Doc.
68). Pursuant to a plea agreement, the parties stipulated that Petitioner may have been

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Documents referenced as “CV Doc.__” are from case number 16-cv-410-LH-CG. Documents referenced
as “CR Doc.__” are from case number 11-cr-2992-LH.

an “armed career criminal” as defined by 18 U.S.C. § 924(e). (CR Doc. 67 at 2). If
Petitioner was not an armed career criminal, he would have faced a maximum 120
month sentence. § 924(a)(2). If Petitioner was found to be an armed career criminal, he
would have faced a minimum 180 month sentence. § 924(e)(1). Petitioner’s presentence report (“PSR”) determined that Petitioner was an armed career criminal based
on Petitioner’s numerous convictions for residential burglary in New Mexico. (CR Doc.
96-1 at 6-7). The PSR determined Petitioner’s Guideline range was 188 to 235 months.
(CR Doc. 96-1 at 20). Ultimately, Petitioner pled guilty pursuant to a Rule 11(c)(1)(C)
plea agreement and stipulated to a 180 month sentence. (CR Doc. 67 at 5).
A criminal defendant is deemed an armed career criminal if he has three prior
convictions for “violent felonies.” § 924(e)(1). When Petitioner was sentenced, “violent
felony” included any crime that “is burglary . . . or otherwise involves conduct that
presents a serious potential risk of physical injury to another. § 924(e)(2)(B)(ii). The
italicized clause is known as the “residual clause.” U.S. v. Johnson, 135 S. Ct. 2551,
2556 (2015). In Johnson, the United States Supreme Court held that the residual clause
was unconstitutionally vague and may not be used to increase a criminal defendant’s
sentence. Id. at 2557.
Following Johnson, Petitioner filed the instant Motion, challenging both his
designation as an armed career criminal and his sentence. Petitioner argues his
convictions for residential burglary do not qualify as the enumerated offense of
“burglary” under § 924(e)(2)(B)(ii), therefore he was deemed an armed career criminal
in reliance on the residual clause. (CV Doc. 4, 7-8). Because the residual clause is

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unconstitutional, Petitioner claims he is entitled to resentencing without being
considered an armed career criminal. (CV Doc. 6 at 10).
Respondent counters first with procedural arguments. Respondent argues that:
(1) Petitioner waived his right to collaterally attack his sentence under § 2255; (2)
Petitioner’s motion is time-barred because Johnson is inapplicable to Petitioner’s case;
and (3) Petitioner forfeited his § 2255 claim when he pled guilty and agreed to serve
180 months. (CV Doc. 11 at 5-6). As for the merits of Petitioner’s Motion, Respondent
argues that “residential burglary” in New Mexico qualifies as “burglary” under §
924(e)(2)(B)(ii), therefore Petitioner was not deemed an armed career criminal in
reliance on the residual clause. (Doc. 11 at 14-15).
II.

Standard of Review
28 U.S.C. § 2255 provides that federal prisoners may challenge their sentences

if: (1) their sentence was imposed in violation of the United States Constitution or
federal law; (2) the sentencing court had no jurisdiction to impose the sentence; (3) the
sentence exceeded the maximum authorized sentence; or (4) the sentence is otherwise
subject to collateral review. § 2255(a). If the court finds that a sentence infringed upon
the prisoner’s constitutional rights and is subject to collateral review, the court must
vacate the sentence and discharge, resentence, or correct the sentence as the court
believes appropriate. § 2255(b).
III.

Analysis

a. Whether Petitioner has waived his right to file this Motion under § 2255
The threshold issue the Court must address is whether Petitioner waived his right
to file the instant Motion. Respondent argues Petitioner waived his right to collaterally

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attack his sentence in his plea agreement. (CV Doc. 11 at 6). Petitioner did not reply to
this argument. Nonetheless, the Court will evaluate Respondent’s argument.
Petitioner’s plea agreement includes a “Waiver of Appeal Rights.” (CR Doc. 67 at
9). The waiver states that Petitioner “knowingly waives the right to appeal [his]
conviction(s) and any sentence . . . In addition, the [Petitioner] agrees to waive any
collateral attack to [his] conviction(s) pursuant to 28 U.S.C. § 2255, except on the issue
of counsel’s ineffective assistance in negotiating or entering this plea or waiver.” (CR
Doc. 67 at 9). Petitioner has filed a motion under § 2255 challenging his sentence–not
his conviction. (CV Doc. 6 at 1, 4, 11). The Motion repeatedly refers to Petitioner’s
sentence as an armed career criminal, but the Motion does not dispute the underlying
conviction for possession of ammunition. (CV Doc. 6 at 1, 4, 11).
A petitioner’s waiver of his right to collateral attack under § 2255 “is generally
enforceable where the waiver is expressly stated in the plea agreement.” U.S. v.
Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). In the Tenth Circuit, courts perform a
three-pronged analysis to determine the force of a waiver. U.S. v. Hahn, 359 F.3d 1315,
1325 (10th Cir. 2004) (en banc) (per curiam). The Court must decide: (1) whether the
challenged motion is within the scope of the waiver; (2) whether the movant knowingly
and voluntarily agreed to the waiver; and (3) if enforcing the waiver would result in a
miscarriage of justice. Id. The Court must “strictly construe[ ]” the waiver’s scope, and
“‘any ambiguities . . . will be read against the Government and in favor of’” Petitioner’s
right to collateral review. Id. (quoting U.S. v. Andis, 333 F.3d 886, 890-91 (8th Cir.
2003) (en banc)).

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Under the first prong, Respondent argues the instant Motion falls “squarely”
within the scope of Petitioner’s waiver. (CV Doc. 11 at 9). Respondent claims the waiver
clearly states Petitioner waived his right to directly appeal and collaterally attack both
his conviction and sentence. (CR Doc. 67 at 9). However, the waiver states only that
Petitioner waived his right to collaterally attack his conviction; the waiver does not
explicitly say Petitioner waived his right to collaterally attack his sentence. The waiver
expressly mentions § 2255, but only in relation to a collateral attack on Petitioner’s
conviction. (CR Doc. 67 at 9). The parties could have agreed to parallel language in
each sentence, for example “waives the right to appeal his conviction and any
sentence” and “waives the right to collaterally attack his conviction and any sentence.”
For whatever reason, the parties did not do so. At the very least, the waiver’s language
creates an ambiguity that must be resolved against the Respondent. Hahn, 359 F.3d at
1325. Accordingly, the Court finds that the instant Motion is not within the scope of
Petitioner’s waiver.
Respondent cites United States v. Pinson, 584 F.3d 972 (10th Cir. 2009), and
United States v. Viera, 674 F.3d 1214 (10th Cir. 2012), in support of its argument that
Petitioner waived his right to collaterally attack his sentence. Both are distinguishable
from this case. In Pinson, the defendant waived his right to “[a]ppeal or collaterally
challenge his guilty plea, sentence . . . and any other aspect of his conviction.” Pinson,
584 F.3d at 974. The Tenth Circuit held that waiver expressly barred the defendant’s §
2255 motion. Id. at 976-77. Here, on the contrary, Petitioner waived his right to appeal
and collaterally attack his conviction, but waived only his right to directly appeal his

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sentence. (CR Doc. 67 at 9). The limited language in Petitioner’s waiver differs
significantly from the broad language in Pinson.
In Viera, the defendant agreed to a lengthy, exhaustive waiver. In part, the
defendant waived his right to
appeal or collaterally attack any matter in connection with the prosecution,
the defendant’s conviction, or the components of the sentence to be
imposed . . . The defendant also waives any right to challenge a sentence
or otherwise attempt to modify or change his sentence . . . including, but
not limited to, a motion brought under Title 28, U.S.C. § 2255.
Viera, 674 F.3d at 1216-17. The Tenth Circuit held that the waiver included the
defendant’s § 2255 motion, “[e]ven if the waiver had only mentioned collateral attack.”
Id. Again, Petitioner’s waiver does not contain such comprehensive language. In this
case, Petitioner’s waiver lacks language regarding Petitioner’s right to collaterally attack
his sentence. Respondent is essentially asking the Court to resolve an ambiguity in its
favor, which the Court cannot do. Hahn, 359 F.3d at 1325.
b. Whether “residential burglary” in New Mexico constitutes “burglary” in § 924(e)
The next issue before the Court is whether “residential burglary” in New Mexico
corresponds with the enumerated offense of “burglary” in § 924(e). “The definition and
scope of the enumerated offenses are questions of federal law.” U.S. v. Rivera-Oros,
590 F.3d 1123, 1126 (10th Cir. 2009). The enumerated offenses, including “burglary,”
are “defined by their ‘generic, contemporary meaning.’” Id. (quoting Taylor v. U.S., 495
U.S. 575, 598 (1990)).
In order to determine whether a conviction meets the generic definition of an
enumerated offense, courts apply “a formal categorical approach, looking only to the
statutory definitions of the prior offenses, and not to the particular facts underlying those

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convictions.” Taylor, 495 U.S. at 600. The statutory definition “does not need to match
the generic definition verbatim.” Rivera-Oros, 590 F.3d at 1132. Rather, “[i]f the
statutory definition of the prior conviction ‘substantially corresponds to generic burglary,’
our inquiry is at an end.” U.S. v. Ramon Silva, 608 F.3d 663, 665 (10th Cir. 2010)
(quoting Taylor, 495 U.S. at 602). “If the statutory definition . . . proscribes a range of
conduct” beyond the generic definition, courts “employ a modified-categorical approach
that ‘goes beyond the mere fact of conviction’ and determines whether ‘the charging
paper and jury instructions’” required finding the elements of the generic definition. Id.
(quoting Taylor, 495 U.S. at 602).
In Taylor, the United States Supreme Court defined generic “burglary” in § 924(e)
as “any crime, regardless of its exact definition or label, having the basic elements of
unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to
commit a crime.” 495 U.S. at 599. If a state statute defines “burglary” narrower than the
generic definition “there is no problem, because the conviction necessarily implies that
the defendant was found guilty of all the elements of generic burglary.” Id. Problems
arise if a state statute defines “burglary” broader than the generic definition, for example
by including vehicles or other non-structures within the crime of “burglary.” Id.
New Mexico broadly defines burglary as “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.” N.M. STAT. ANN. § 30-16-3 (West 2016); see also
UJI 14-1630 NMRA. In this case, Petitioner was convicted of violating section 30-163(A), which prohibits “enter[ing] a dwelling house with intent to commit any felony or
theft therein.” New Mexico criminal jury instructions define “dwelling” as “any structure,

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any part of which is customarily used as living quarters.” UJI 14-1631 NMRA; Ervin, 630
P.2d at 766. “Dwelling” does not include a detached, non-contiguous garage. State v.
Ross, 1983-NMCA-065, ¶ 11, 665 P.2d 310, 313 (N.M. Ct. App. 1983) (holding
detached garage was “not a part of the dwelling house proper”). It does, however,
include a garage that is attached but not internally connected to a home. State v. Lara,
1978-NMCA-112, ¶ 6, 587 P.2d, 52, 53 (N.M. Ct. App. 1978). In Lara, the New Mexico
Court of Appeals held that a garage was part of a “dwelling” even though the garage
only shared a wall with the home and did not contain a door into the home. Id.
New Mexico’s definition of “residential burglary” contains all the elements of
generic burglary. New Mexico requires unauthorized entry and intent to commit a felony,
satisfying two of Taylor’s requirements. See 495 U.S. at 599. Further, “residential
burglary” is limited to burglary of particular structures and dwellings; therefore New
Mexico’s definition of “residential burglary” is narrower than Taylor’s definition of
burglary. Because New Mexico’s definition of “residential burglary” includes the
elements enumerated in Taylor and has a more narrow definition of “building or
structure,” the Court finds “residential burglary” in New Mexico substantially
corresponds with the generic definition of burglary in § 924(e).
Petitioner maintains that “residential burglary” exceeds the generic definition of
burglary for two reasons. First, Petitioner argues New Mexico’s definition of burglary is
broader because it includes vehicles, watercraft, and other moveable structures. (CV
Doc. 6 at 8). Although New Mexico does define “burglary” to include vehicles, Petitioner
was not convicted of “burglary,” but of “residential burglary.” Throughout his Motion,
Petitioner admits his prior convictions were for residential burglary, (CV Doc. 6 at 2, 4,

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5, 6, 8, 9), which refers specifically to burglary of a dwelling house. See State v. Brown,
1992-NMCA-028, ¶ 1, 830 P.2d 183, 184 (N.M. Ct. App. 1992); Ross, 665 P.2d at 31112. Burglary of a vehicle, watercraft, or other structure is considered “commercial
burglary” in New Mexico. See State v. Archuleta, 2015-NMCA-037, ¶ 1, 346 P.3d 390,
391 (N.M. Ct. App. 2014); State v. Russell, 1980-NMCA-074, ¶ 1, 612 P.2d 1355, 1356
(N.M. Ct. App. 1980); see also State v. Maestas, 2016-NMCA-047, ¶ 6, 370 P.3d 805,
807 (N.M. Ct. App. 2016) (“Defendant was tried in the district court on charges of nonresidential burglary in violation of NMSA 1978, Section 30-16-3(B) (1971).”). Thus, this
argument is unavailing for Petitioner.
Second, Petitioner argues “residential burglary” exceeds the generic definition
because it includes burglary of garage attached to a home. (CV Doc. 6 at 9) (citing Lara,
587 P.2d 52). Petitioner does not elaborate how a garage is not a “building or structure”
for purposes of generic burglary. Hence, the Court rejects this argument as well.
IV.

Recommendation
For the foregoing reasons, the Court finds that Petitioner was appropriately

deemed an armed career criminal for having three previous convictions for violent
felonies, namely “burglary.” Petitioner’s sentence was not calculated in reliance on the
residual clause. It is unnecessary to reach Respondent’s arguments regarding
untimeliness and forfeiture, as Petitioner’s Motion fails on the merits.

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IT IS THEREFORE RECOMMENDED that Petitioner’s Amended Motion to
Vacate a Criminal Sentence Pursuant to 28 U.S.C. § 2255 (Johnson v. United States),
(CV Doc. 6), be DENIED.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition they
may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. §
636(b)(1). A party must file any objections with the Clerk of the District Court
within the fourteen-day period 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.

THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE

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