Sandoval v. United States of America

Filing 16

MEMORANDUM OPINION AND ORDER by Senior District Judge C. LeRoy Hansen ADOPTING Magistrate Judge's Proposed Findings and Recommended Disposition 12 DENYING 6 Amended MOTION to Vacate a Sentence Under Johnson v. United States filed by Jonathan Sandoval. (bap)

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

No.

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

UNITED STATES OF AMERICA,
Plaintiff-Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on United States Magistrate Judge Carmen E.
Garza’s Proposed Findings and Recommended Disposition (the “PFRD”), (CV Doc. 12),
filed November 14, 2016.1 In the PFRD, Judge Garza concluded that Petitioner
Jonathan Sandoval was not entitled to relief under Johnson v. United States, 135 S. Ct.
2551 (2015), and recommended that his Amended Motion to Vacate a Criminal
Sentence Pursuant to 28 U.S.C. § 2255 (Johnson v. United States) (the “Motion”), (CV
Doc. 6), be denied. (CV Doc. 12 at 10).
The parties were notified that written objections to the PFRD were due within 14
days. (CV Doc. 12 at 10). Respondent United States of America filed United States’
Response to Magistrate Judge’s Proposed Findings and Recommended Disposition
(the “Respondent’s Objections”), (CV Doc. 14), on February 13, 2017; and Petitioner
filed Defendant-Petitioner’s Objections to the Magistrate Judge’s Proposed Findings
and Recommended Disposition (“Petitioner’s Objections”), (CV Doc. 13), filed February
10, 2017. Respondent also responded to Petitioner’s Objections. (CV Doc. 15). After a
1

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

de novo review of the record and the PFRD, the Court adopts Judge Garza’s PFRD in
full, denies Petitioner’s Motion, and denies the parties’ objections.
I.

Background
This proceeding arises from Petitioner’s agreement to plead 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). Pursuant to a Rule 11(c)(1)(C) plea agreement, Petitioner stipulated that a
180 month sentence was appropriate for his crimes. (CR Doc. 67 at 5). Petitioner also
stipulated he “may be an armed career criminal,” which, if true, meant Petitioner’s
minimum sentence was 180 months. § 924(e)(1). If Petitioner were not an armed career
criminal, his maximum sentence would have been 120 months. § 924(a)(2). Petitioner’s
presentence investigation report (“PSR”) determined Petitioner was an armed career
criminal based on prior convictions for residential burglary in New Mexico. (CR Doc. 961 at 1; 7).
An “armed career criminal” is a person with three prior convictions for a “violent
felony.” § 924(e)(1). When Petitioner was convicted, “violent felony” was defined in part
as any crime that “is burglary, arson, or extortion . . . or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” § 924(e)(2)(A)(2). The
italicized part of the definition is called the “residual clause.” Johnson, 135 S. Ct. at
2556. In Johnson, the Supreme Court of the United States struck the residual clause as
unconstitutionally vague and held it may not be used to increase a person’s sentence.
Id. at 2557.
On May 9, 2016, Petitioner filed his Motion arguing his sentence was
unconstitutional following the holding in Johnson. (CV Doc. 1; 6). Petitioner argued that

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“residential burglary” as defined by New Mexico law does not match the definition of
“burglary” under § 924(e)(2)(A)(2); therefore, he argues, “residential burglary” in New
Mexico only qualifies as a violent felony under the residual clause and he was
sentenced in reliance on the residual clause. (CV Doc. 6 at 4).
Respondent countered with three procedural arguments and one substantive
argument. (CV Doc. 11 at 5-6; 14-15). First, Respondent argued (1) Petitioner waived
his right to collaterally attack his sentence in his plea agreement; (2) Petitioner’s Motion
is untimely because Johnson does not apply to his case; and (3) Petitioner forfeited his
right to challenge his sentence by pleading guilty and stipulating to the 180 month
sentence. (CV Doc. 11 at 5-10). Substantively, Respondent argued Petitioner is
ineligible for relief under Johnson because “residential burglary” in New Mexico meets
the definition of “burglary” in § 924(e). (CV Doc. 11 at 10-16).
In her PFRD, Judge Garza found that Petitioner did not waive his right to
collaterally attack his sentence. (CV Doc. 12 at 3-6). According to Judge Garza, the plea
agreement is at the very least ambiguous, and ambiguity must be resolved in
Petitioner’s favor. (CV Doc. 12 at 5). Next, applying the categorical approach, Judge
Garza found “residential burglary” in New Mexico matches “burglary” as defined by
federal law. (CV Doc. 12 at 6-9). Accordingly, procedural issues aside, Judge Garza
found Petitioner’s convictions were correctly determined to be crimes of violence. (CV
Doc. 12 at 9). Judge Garza declined to reach Respondent’s arguments regarding
timeliness or forfeiture.
Petitioner timely objected to the PFRD. (CV Doc. 13). Petitioner now argues that
the New Mexico statute defining burglary does not match the federal definition of

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burglary. (CV Doc. 13 at 3). Specifically, Petitioner argues that “burglary” under federal
law requires entry into or remaining in a building or other structure, while burglary in
New Mexico includes burglary of a garage attached to a home. (CV Doc. 13 at 4).
Petitioner asserts that these definitions do not match, therefore his convictions are not
for “violent felonies” and he is serving an unconstitutional sentence. (CV Doc. 13 at 5-6).
Petitioner also cursorily argues the government has not proved he was convicted of a
violent felony under the modified categorical approach. (CV Doc. 13 at 4).
Respondent both objected to the PFRD and responded to Petitioner’s
Objections. (CV Docs. 14, 15). Respondent does not object to Judge Garza’s analysis;
rather, Respondent requests the Court decide the procedural issues Judge Garza
declined to reach. (CV Doc. 14 at 1-2). Petitioner did not respond to Respondent’s
Objections, and the time for doing so has passed. D.N.M.LR-Civ. 7.4(a). Respondent
objected to Petitioner’s mention of the modified categorical approach as an
impermissible new argument. (CV Doc. 15 at 2).
II.

Analysis
Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings for the

United States District Courts, a district judge may, under 28 U.S.C. § 636(b), refer a
pretrial dispositive motion to a magistrate judge for proposed findings of fact and
recommendations for disposition. Within fourteen days of being served, a party may file
objections to this recommendation. Rule 8(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts. A party may respond to another

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party’s objections within fourteen days of being served with a copy; the rule does not
provide for a reply. FED. R. CIV. P. 72(b).2
When resolving objections to a magistrate judge’s recommendation, the district
judge must make a de novo determination regarding any part of the recommendation to
which a party has properly objected. 28 U.S.C. § 636(b)(1)(C). Filing objections that
address the primary issues in the case “advances the interests that underlie the
Magistrate’s Act, including judicial efficiency.” U.S. v. One Parcel of Real Prop., With
Bldgs., Appurtenances, Improvements, & Contents, 73 F.3d 1057, 1059 (10th Cir.
1996). Objections must be timely and specific to preserve an issue for de novo review
by the district court or for appellate review. Id. at 1060. Additionally, issues “raised for
the first time in objections to the magistrate judge’s recommendation are deemed
waived.” Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see also U.S. v.
Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001) (“In this circuit, theories raised for
the first time in objections to the magistrate judge’s report are deemed waived.”).
A. Petitioner’s Objection
In this case, Petitioner objects to Judge Garza’s proposed finding that residential
burglary in New Mexico meets the federal definition of burglary. (CV Doc. 13 at 3). As
Judge Garza explained, the definition of burglary in § 924(e) is a question of federal law.
Taylor v. U.S., 495 U.S. 575, 590-92 (1990). “Burglary” in § 924(e), as defined by its
“generic, contemporary meaning,” includes three basic elements: (1) unlawful or
unprivileged entry into, or remaining in, (2) a building or structure, (3) with intent to
commit a crime. Id. at 598-99.
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The Federal Rules of Civil Procedure may be applied to the extent that they are not inconsistent with any
statutory provisions or the Rules Governing Section 2255 Proceedings. Rule 12 of the Rules Governing
Section 2255 Proceedings for the United States District Courts.

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In determining whether a particular conviction meets the generic, contemporary
definition, courts apply “a formal categorical approach, looking only to the statutory
definitions . . . and not to the particular facts underlying those convictions.” Id. at 600. If
the state’s statutory definition “‘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 state statute “proscribes a range of conduct” broader
than the generic definition, courts may “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 generic burglary. Id. (quoting
Taylor, 495 U.S. at 602).
Petitioner was convicted of “residential burglary.” (CV Doc. 6 at 2, 4, 5, 6, 8, 9;
CR Docs. 67 at 4; 96-1 at 4-7). In New Mexico, “[a]ny person who, without authorization,
enters a dwelling house with intent to commit any felony or theft therein” commits
residential burglary. N.M. Stat. Ann. § 30-16-3(A) (West 2017); see State v. Brown, 830
P.2d 183, 184 (N.M. Ct. App. 1992); State v. Ross, 665 P.2d 310, 313 (N.M. Ct. App.
1983). In comparing “residential burglary” to “burglary” as defined in Taylor, the
elements almost exactly line up: entry “without authorization” equates to “unlawful or
unprivileged” entry; a “dwelling house” is a “building or structure;” and “intent to commit
any felony or theft therein” matches “intent to commit a crime.” Thus, New Mexico’s
definition of residential burglary substantially corresponds with the generic,
contemporary definition of burglary.
Petitioner protests that New Mexico’s definition of “burglary” proscribes a broader
range of conduct than the generic definition because residential burglary includes

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burglary of a garage attached to a home. (CV Doc. 13 at 3-4). Judge Garza addressed
this argument in her PFRD. (CV Doc. 12 at 9). As before, Petitioner does not explain
how a garage is not a “building or structure,” even if it is attached but not internally
connected to a home. See State v. Lara, 587 P.2d 52, 53 (N.M. Ct. App. 1978) (holding
a garage that shared a wall but not a doorway with a home was a part of the “dwelling”
for purposes of residential burglary); see also building, Black’s Law Dictionary (10th ed.
2014) (defining “building” as “a structure with walls and a roof, esp. a permanent
structure”).
Petitioner cites United States v. Grisel, 488 F.3d 844, 848 (9th Cir. 2007), and
United States v. Mayer, 162 F.Supp.3d 1080 (D. Or. 2016) in support of his objection. In
addition to being non-binding out of circuit authority, those cases are distinguishable.
Both cases considered Oregon’s burglary statute and held that Oregon’s definition of
burglary exceeded Taylor’s because Oregon includes non-structures like vehicles and
boats within its definition of burglary. Grisel, 488 F.3d at 850; Mayer, 162 F.Supp.3d
1085-86. As discussed, Petitioner was convicted in particular for burglarizing dwelling
houses–not of burglarizing motor vehicles or boats.
Accordingly, the Court agrees with Judge Garza’s analysis that Petitioner is
ineligible for relief under Johnson. Under the categorical approach, “residential burglary”
in New Mexico substantially corresponds with the generic, contemporary definition of
burglary espoused in Taylor. Because Petitioner’s predicate convictions were for violent
felonies, he was correctly considered an armed career criminal. Petitioner’s objection is
overruled. To the extent Petitioner raised a new argument regarding the modified

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categorical approach, the Court finds that argument waived by Petitioner’s failure to
raise it in his Motion.
B. Respondent’s Objection
Respondent’s only request is that the Court decide the procedural issues Judge
Garza declined to reach. (CV Doc. 14 at 1-2). In the interests of judicial restraint and
economy, the Court declines to do so. Respondent offered no reason why the Court
should decide their procedural arguments when the substantive issue is dispositive.
Indeed, Respondent merely referenced its prior arguments and requested the Court
decide the issues.
III.

Conclusion
For the foregoing reasons, the Court finds that Judge Garza conducted the

proper analysis and correctly concluded that Petitioner’s Motion should be denied. The
parties’ objections are overruled.
IT IS HEREBY ORDERED that Judge Garza’s Proposed Findings and
Recommended Disposition, (CV Doc. 12), should be ADOPTED. Petitioner’s Amended
Motion to Vacate a Criminal Sentence Pursuant to 28 U.S.C. § 2255 (Johnson v. United
States) (the “Motion”), (CV Doc. 6), will be DENIED.

___________________________________
THE HONORABLE C. LEROY HANSEN
SENIOR UNITED STATES DISTRICT JUDGE

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