Lemos v. United States of America

Filing 26

ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION 22 OVERRRULING Government's Objections 23 and granting 3 Amended Emergency Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Daniel Jesus Lemos and Vacating Defendant's sentence in 06cr1436 by Senior District Judge James A. Parker. (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
v.

Civ. No. 16-441 JAP/KK
(Cr. No. 06-1436 JAP)

DANIEL JESUS LEMOS,
Defendant/Movant.
ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
In this Order the Court considers: (1) Defendant/Movant Daniel Jesus Lemos’
(“Defendant”) Amended Emergency Motion to Correct Sentence pursuant to 28 U.S.C. § 2255
(“Section 2255 Motion”) (CR Doc. 70; Doc. 3), filed June 10, 2016; (2) United States Magistrate
Judge Kirtan Khalsa’s Proposed Findings and Recommended Disposition (“PFRD”) (Doc. 22),
filed January 23, 2017; (3) Plaintiff/Respondent the United States of America’s (“Government”)
Objections to Magistrate Judge’s Proposed Findings and Recommended Disposition
(“Objections”) (Doc. 23), filed February 6, 2017; and (4) Defendant/Movant’s Response to
Government’s Objection (sic) to Magistrate Judge’s Proposed Findings and Recommended
Disposition (Doc. 24) (“Response to Objections”).
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Court has reviewed the record in this case de novo, and concurs with the Magistrate

Judge’s description of its factual background and procedural history. (Doc. 22 at 2-5.) The Court
will not repeat that description here, but rather will highlight certain salient points in the
Government’s Objections and in the Response to Objections.

On June 28, 2006, a federal grand jury charged Defendant by indictment with being a
felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and with possessing a
firearm with an obliterated, removed, changed, or altered serial number in violation of 18 U.S.C.
§ 922(k). (CR Doc. 1.) Defendant pled guilty to the indictment without a plea agreement on
April 3, 2008. (CR Doc. 46.)
On June 9, 2008, the United States Probation Office (“USPO”) disclosed its Presentence
Investigation Report (“PSR”) finding that Defendant’s sentence should be enhanced under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), because Defendant had previously
been convicted of three violent felonies. (Doc. 16-1 at 1, 9.) The PSR identified the three prior
convictions as: (1) a 1994 aggravated vehicle burglary conviction; (2) a 1997 residential
burglary conviction; and, (3) a 2002 aggravated commercial burglary conviction, all under New
Mexico law. (Id. at 9-14.) The section of the PSR detailing Defendant’s criminal history also
listed a 2002 New Mexico commercial burglary conviction. (Id. at 12.) However, the USPO did
not rely on the 2002 commercial burglary conviction to support the enhancement of Defendant’s
sentence under the ACCA. (Id. at 9.) At a hearing on February 2, 2010, the Court adopted the
findings in the PSR and sentenced Defendant to fifteen years’ imprisonment, the minimum
sentence the ACCA mandated. (CR Doc. 66.) The Court entered a judgment of conviction on
February 22, 2010. (CR Doc. 67.)
On May 13, 2016, Defendant, acting pro se, filed a Motion under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, less than one year after
the United States Supreme Court struck down a portion of the ACCA in Johnson v. United
States, — U.S. —, 135 S. Ct. 2551 (2015). (Doc. 1.) On June 16, 2016, Defendant’s counsel

2

filed the amended Section 2255 Motion presently before the Court.1 (CR Doc. 70; Doc. 3.) The
parties then filed a number of briefs addressing the issues raised in Defendant’s motion: (1)
Defendant’s objections to the USPO’s June 28, 2016 memorandum regarding the effect of
Johnson on his sentence; (2) the Government’s response to the Section 2255 Motion; (3) the
Government’s response to Defendant’s objections to the USPO’s memorandum; (4) Defendant’s
reply in support of his Section 2255 Motion; (5) Defendant’s “Supplement” to the Section 2255
Motion; (6) the Government’s response to Defendant’s “Supplement”; and, (7) Defendant’s
“Notice of Supplemental Authority.” (Docs. 12-15, 19-21.)
In his Section 2255 Motion, Defendant asks the Court to vacate his sentence and
resentence him without enhancement under the ACCA. (Doc. 3 at 1.) According to Defendant,
this may result in his immediate release from federal custody. (Id.) Defendant argues that
enhancement of his sentence is no longer proper because, after Johnson, his 1994 aggravated
vehicle burglary conviction is no longer a violent felony under the ACCA. (Id. at 4-6.)
Defendant also argues that the Government cannot now substitute his 2002 commercial burglary
conviction for his 1994 aggravated vehicle burglary conviction to justify the enhancement of his
sentence, because the Government waived its right to do so, and because commercial burglary is
no longer a violent felony under the ACCA. (Doc. 12 at 4-11; Doc. 19 at 2-3; Doc. 21 at 1.)
Before entry of the Magistrate Judge’s PFRD, the Government did not dispute that, after
Johnson, Defendant’s 1994 aggravated vehicle burglary conviction is no longer a violent felony
under the ACCA. (See Docs. 13, 14, 20.) Instead, the Government argued that Defendant’s
three other convictions: 1997 residential burglary, 2002 aggravated commercial burglary, and
2002 commercial burglary are violent felonies; and, consequently, Defendant still has three

1

With the Court’s leave, Defendant subsequently withdrew the argument in his Section 2255 Motion regarding
shooting at a dwelling or occupied building, which was included by mistake. (Docs. 10, 11.)

3

qualifying convictions under the ACCA.2 (Doc. 13 at 2-16.) The Government denied that it
waived its right to substitute Defendant’s 2002 commercial burglary conviction for his 1994
aggravated vehicle burglary conviction to justify the enhancement of his sentence. (Doc. 14 at 13.)
For the first time in its Objections to the Magistrate Judge’s PFRD, the Government
argues that the Court should deny Defendant’s Section 2255 Motion because it is untimely.
(Doc. 23 at 2-6.) The Government also objects to the Magistrate Judge’s proposed finding that,
post-Johnson, New Mexico non-residential burglary is no longer a violent felony under the
ACCA. (Id. at 7-9.) The Court has considered the parties’ submissions and has conducted a de
novo review of the record, including the record in the underlying criminal case. Based on its
review, the Court finds that the Government’s Objections should be overruled, the Magistrate
Judge’s PFRD should be adopted, and Defendant’s Section 2255 Motion should be granted.
II.

ANALYSIS
District courts may refer dispositive motions to a magistrate judge for a recommended

disposition under 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. 28 U.S.C. §
636(b)(1)(B); Fed. R. Civ. P. 72(b)(1). “Within 14 days after being served with a copy of the
[magistrate judge’s] recommended disposition, a party may serve and file specific written
objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2); 28 U.S.C.
§ 636(b)(1). When resolving objections to a magistrate judge’s proposal, “[t]he district judge
must determine de novo any part of the magistrate judge’s disposition that has been properly
objected to. The district judge may accept, reject, or modify the recommended disposition;

2

Defendant does not dispute that his 1997 residential burglary and 2002 aggravated burglary convictions are violent
felonies under the ACCA. (See Docs. 3, 12, 15, 19, 21.) The Court will therefore assume that these convictions
qualify as ACCA predicates for purposes of Defendant’s motion.

4

receive further evidence; or return the matter to the magistrate judge with instructions.” Fed. R.
Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1).
“[A] party’s objections to the magistrate judge’s report and recommendation must be
both timely and specific to preserve an issue for de novo review by the district court or for
appellate review.” United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.
1996). However, “[i]ssues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” ClearOne Commc’ns, Inc. v. Biamp Sys., 653 F.3d 1163,
1185 (10th Cir. 2011) (quoting Marshall v. Chater, 75 F.3d 1421, 1426-27 (10th Cir. 1996));
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010) (same); see also United States v.
Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit, theories raised for the first time
in objections to the magistrate judge’s report are deemed waived.”).
A.

The Government waived its argument that Defendant’s Section 2255 Motion
is untimely.

As noted above, the Government in its Objections argues that the Court should deny
Defendant’s Section 2255 Motion because it is untimely. (Doc. 23 at 2-6.) In general, a
defendant must file a motion under 28 U.S.C. § 2255 within one year of the date the judgment of
conviction becomes final. 28 U.S.C. § 2255(f)(1). Here, the Court entered a judgment of
conviction on February 22, 2010; thus, absent exceptional circumstances, Defendant’s Section
2255 motion was due by March 8, 2011. (CR Doc. 67); see United States v. Prows, 448 F.3d
1223, 1227-28 (10th Cir. 2006) (if no appeal is filed, a judgment of conviction becomes final
when the fourteen-day deadline for filing an appeal has expired). However, as the Government
concedes, if the right asserted in the motion “has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review,” then the one-year limitation

5

period runs from “the date on which the right asserted was initially recognized by the Supreme
Court.” 28 U.S.C. § 2255(f)(3).
In Johnson, the Supreme Court newly recognized a right and made it retroactively
applicable to cases on collateral review. Welch v. United States, — U.S. —, 136 S. Ct. 1257,
1264-65 (2016). Specifically, the Supreme Court struck down the ACCA’s residual clause as
unconstitutionally vague. Johnson, 135 S. Ct. at 2557, 2563. If Defendant’s motion asserts the
right newly recognized in Johnson, his motion was timely because it was filed within one year
after Johnson was decided. In its Objections, however, the Government argues that Defendant’s
Section 2255 Motion does not assert a newly recognized right under Johnson. The Government
characterizes Defendant’s Section 2255 Motion as merely asserting a right under Mathis v.
United States, — U.S. —, 136 S. Ct. 2243 (2016) because “all four” of Defendant’s prior
convictions “were evaluated under the enumerated clause” that Mathis addressed, and not under
the residual clause invalidated by Johnson.3 (Doc. 23 at 3 n.1, 6 n.4.) As the Government
observes, Mathis did not newly recognize a right made retroactively applicable to cases on
collateral review. (Id. at 3-4.) Thus, according to the Government, Defendant’s motion was due
by February 3, 2011,4 and was untimely filed on June 10, 2016.5 (Id. at 2.)

3

If the Government is asserting that the Court evaluated Defendant’s 2002 commercial burglary conviction under
the ACCA’s enumerated clause at sentencing, it is plainly mistaken. (Doc. 23 at 3 n.1, 6 n.4.) The Court did not
evaluate this conviction under any of the ACCA’s clauses because neither the Government nor the USPO relied on
the conviction to recommend enhancement of Defendant’s sentence under the ACCA. Thus, the Court did not
consider it for that purpose. (Doc. 16-1 at 9; CR Doc. 66 at 1.)

4
The Government erroneously used the date of Defendant’s February 2, 2010 sentencing hearing, rather than
February 22, 2010, the date of entry of the judgment of conviction, to calculate its proffered deadline under 28
U.S.C. § 2255(f)(1). (Doc. 23 at 2.)
5

It appears that Defendant’s June 10, 2016 amended Section 2255 Motion relates back to his original pro se motion,
which was filed on May 13, 2016. (CR Doc. 70; Docs. 1, 3.)

6

However, “[i]ssues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” ClearOne Commc’ns, Inc., 653 F.3d at 1185; Marshall,
75 F.3d at 1426-27; Abdulhaseeb, 600 F.3d at 1310; Garfinkle, 261 F.3d at 1031. Since the
Government has raised the issue of the timeliness of Defendant’s Section 2255 Motion for the
first time in its Objections to the Magistrate Judge’s PFRD, the Government has waived the
issue. (Doc. 23 at 4 n.2; Doc. 24 at 3.)
The Government argues that it did not deliberately waive the procedural bar and that it
raised the timeliness issue “because of the intervening 10th Circuit opinion in [Taylor].” The
Government refers to the unpublished decision in United States v. Taylor, — F. App’x —, 2016
WL 7093905 (10th Cir. Dec. 6, 2016), which was issued about one month before the Magistrate
Judge entered her PFRD. (Doc. 23 at 4 n.2.) In Taylor, the Tenth Circuit upheld the denial of a §
2255 motion on the basis of untimeliness. Fifteen years after his conviction and sentencing, the
defendant argued that his previous convictions under Oklahoma law for second degree burglary
should not have been considered as violent felonies under the enumerated clause of the ACCA.
Id. at *1. The Tenth Circuit agreed with the district court’s determination that the defendant was
asserting a right under Mathis, and was not asserting a Johnson violation because he was not
originally sentenced under the residual clause of the ACCA. Id. at *4 (“Mr. Taylor had one year
from that date [final judgment] to assert a habeas challenge to his sentence.”). “Because Mathis
did not announce a new rule, Mr. Taylor cannot rely on it in a § 2255 petition filed nearly fifteen
years after the judgment in his criminal case became final. Mr. Taylor’s petition is time-barred.”
Id. The Government likens this case to the situation in Taylor arguing that Defendant is actually
asking for relief under Mathis and not under Johnson; and therefore, his Section 2255 Motion
should be dismissed as untimely. The Government also cites Wood v. Milyard, 566 U.S. 463,

7

132 S.Ct. 1826 (2012) for the proposition that a district court may, but is not obliged to, consider
sua sponte the timeliness of a state prisoner’s habeas petition. Id. 132 S.Ct. at 1833.
The recent holding in Taylor does not excuse the Government’s failure to timely raise
this issue. The opinion was issued over a month before the Magistrate Judge entered her PFRD,
and, it did not announce a new rule of law or apply existing law in a way the Government could
not have anticipated. Moreover, on examining the holding in Taylor, the Court finds it
distinguishable from this case. 6 And, the unpublished opinion does not provide persuasive
support for the Government’s position. Cf. United States v. Austin, 426 F.3d 1266, 1274 (10th
Cir. 2005) (unpublished decisions are not binding precedent in the Tenth Circuit, but may be
cited for their persuasive value). In short, Taylor does not excuse the Government’s failure to
challenge the timeliness of Defendant’s Section 2255 Motion before the Magistrate Judge
entered her PFRD. In these circumstances, Tenth Circuit law is clear: the issue is deemed
waived.7 The Court will therefore overrule the Government’s Objections to the Magistrate
Judge’s PFRD based on the alleged untimeliness of Defendant’s Section 2255 Motion.
B.

New Mexico non-residential burglary no longer qualifies as a violent felony
under the ACCA.

The Government also objects to the Magistrate Judge’s proposed finding that New
Mexico non-residential burglary no longer qualifies as a violent felony under the ACCA. (Doc.

6

In Taylor, the district court denied habeas review and found that the sentencing court did not enhance the
defendant’s sentence under the residual clause of the ACCA. The Tenth Circuit agreed with the district court’s
assessment. 2016 WL 7093905, at *2. In this case, Defendant's sentence, as to the 1994 aggravated burglary
conviction he challenges, could not have been based on the enumerated clause because that conviction was for
burglary of a vehicle. (Doc 3-1 at 1 & Doc. 3-2 at 1 (Defendant’s 1994 aggravated burglary conviction was for
burgling a vehicle)). See, e.g., Taylor v. United States, 495 U.S. 575, 599 (1990) (concluding that burglary of a
vehicle is outside the scope of generic burglary and thus not a violent felony under the enumerated clause). Since
Defendant's enhanced sentence relied on the now invalidated residual clause, Defendant's Section 2255 Motion was
properly brought under Johnson, and it is timely. See also United States v. Hamilton, --- F. Supp. 2d ---, 2017 WL
368512, *3 (N.D. Okla. Jan. 25, 2017) (“where record is silent and a court could have relied on multiple clauses at
the time of sentencing, a defendant need not show a sentencing court ‘actually relied’ on the residual clause[.]”).  
7
The Court will also decline the Government’s invitation for the Court to consider the timeliness of Defendant’s
Section 2255 Motion “sua sponte.” (Doc. 23 at 4 n.2 (quoting Wood v. Milyard, 566 U.S. 463 (2012).)

8

23 at 7-9.) In her PFRD, the Magistrate Judge discussed the standards governing this inquiry in
considerable detail, and the Court concurs with that discussion. (Doc. 22 at 5-8.) For clarity, the
Court will summarize it here. The ACCA provides that a person who violates 18 U.S.C. §
922(g) and has three prior convictions for a “violent felony” or a “serious drug offense” is
subject to a minimum term of fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1). Under the
ACCA, the term “violent felony” means
any crime punishable by imprisonment for a term exceeding one year . . . that—
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to
another.
18 U.S.C. § 924(e)(2)(B) (emphasis added). Subpart (i) of this definition is known as the “force
clause” or “elements clause”; the non-italicized portion of subpart (ii) is known as the
“enumerated clause”; and, the italicized portion of subpart (ii) is known as the “residual clause.”
Johnson, 135 S. Ct. at 2556; United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017);
United States v. Fritts, 841 F.3d 937, 939 (11th Cir. 2016); United States v. Gardner, 823 F.3d
793, 801-02 (4th Cir. 2016). The Supreme Court in Johnson ruled that the residual clause is
unconstitutionally vague, but left the force and enumerated clauses intact. 135 S. Ct. at 2557,
2563.
If New Mexico commercial burglary constitutes a “burglary” under the ACCA’s
enumerated clause, then the Court may rely on Defendant’s 2002 conviction for this offense to
affirm Defendant’s enhanced sentence. In other words, the Court must decide whether
Defendant’s 2002 commercial burglary conviction may be used as a substitute for the 1994
aggravated vehicle burglary conviction that no longer qualifies as an ACCA predicate post-

9

Johnson. (Doc. 22 at 8 & n.6.) However, if commercial burglary under New Mexico law does
not qualify as a “burglary” under the enumerated clause, the Court cannot rely on that
conviction.8 135 S. Ct. at 2557, 2563.
To determine whether an offense is one of the violent felonies under the ACCA’s
enumerated clause, courts must generally apply what is called the “categorical approach,”
considering only the offense’s statutory elements, and not the actual facts underlying the
defendant’s prior conviction. Harris, 844 F.3d at 1263; United States v. Smith, 652 F.3d 1244,
1246 (10th Cir. 2011). Courts must examine only the “generic versions” of the enumerated
offenses and not all variants of the offenses. Mathis, 136 S. Ct. at 2248. To determine whether a
past conviction is for one of the enumerated offenses, courts must compare the elements of the
crime of conviction with the elements of the “generic” version of the enumerated offense. Id. at
2247. Thus, a prior conviction qualifies as an ACCA predicate if, but only if, the crime’s
elements are the same as, or narrower than, those of the generic offense. Id.
This analysis becomes more complex when a statute lists elements in the alternative,
thereby defining multiple crimes. Id. at 2249. To analyze statutes with this “divisible” structure,
courts employ what is called the “modified categorical approach.” Id.; United States v. Hood,
774 F.3d 638, 645 (10th Cir. 2014). Applying the modified categorical approach, “a sentencing
court looks to a limited class of documents (for example, the indictment, jury instructions, or
plea agreement and colloquy) to determine what crime, with what elements, a defendant was
convicted of.” Mathis, 136 S. Ct. at 2249; Hood, 774 F.3d at 645. The court then compares the
elements of that crime, as the categorical approach commands, with the elements of the relevant
generic offense. Mathis, 136 S. Ct. at 2249.

8

Commercial burglary is clearly not a violent felony under the ACCA’s other clause, i.e., the force clause, because
it does not have as an element the actual, threatened, or attempted use of physical force against the person of
another. 18 U.S.C. § 924(e); N.M. Stat. Ann. § 30-16-3(B).

10

However, the modified categorical approach does not apply to statutes “that enumerate[]
various factual means of committing a single element,” as opposed to multiple alternative
elements. Id. at 2249, 2253-54, 2256. To determine whether a statute lists alternative means or
elements, courts must first consult “authoritative sources of state law.” Id. at 2256. For
example, if statutory alternatives carry different punishments, then they must be elements. Id.
(citing Apprendi v. New Jersey, 530 U.S. 466 (2000)). “Conversely, if a statutory list is drafted
to offer ‘illustrative examples,’ then it includes only a crime’s means of commission.” Id. (citing
United States v. Howard, 742 F.3d 1334, 1348 (11th Cir. 2014)). And, if state law fails to
provide a clear answer, a sentencing judge may “peek” at the record of the defendant’s prior
conviction for “the sole and limited purpose” of determining whether the statute’s listed
alternatives are means or elements. Id. at 2256-57.
New Mexico’s burglary statute states:
[b]urglary consists of 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.
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, movable or immovable, with intent to commit any felony or
theft therein is guilty of a fourth degree felony.
N.M. Stat. Ann. § 30-16-3. Both sides agree that Defendant’s commercial burglary conviction
was under Subsection B of this statute. (Doc. 12 at 9; Doc. 13 at 2; Doc. 22 at 9.)
The Government sets out four substantive objections to the PFRD: (1) the New Mexico
Supreme Court did not definitively resolve whether Section 30-16-3(B) lists alternative means or
elements in New Mexico v. Office of Public Defender ex rel. Muqqddin, 2012-NMSC-029, 285
P.3d 622; (2) the singular penalty that Subsection B imposes likewise does not definitively

11

indicate whether the subsection lists alternative means or elements; (3) the Court should reject
the Magistrate Judge’s proposed finding that the list of prohibited spaces in Subsection B is a list
of non-exhaustive illustrative examples; and (4) the Magistrate Judge should have “peeked” at
Defendant’s record of conviction, which shows that he was actually convicted of burglarizing a
“structure,” something within the scope of generic burglary. (Doc. 23 at 7-9.)
In its first two objections, the Government misunderstands the Magistrate Judge’s PFRD.
The Magistrate Judge did not propose to find that the decision in Muqqddin, or the singular
penalty in Section 30-16-3(B), definitively indicates whether the statute lists alternative means or
elements. (See Doc. 22 at 10-14.) The Government’s objections, though true, are therefore
beside the point. Further, as explained in the PFRD, although neither the Muqqddin decision nor
Subsection B’s singular penalty definitively resolves the issue, both of these state law sources do
support the conclusion that Subsection B lists alternative means and not elements. (Id.) See also,
United States v. Jimenez, No. 16 CV 0661 RB/SMV, ORDER ADOPTING MAGISTRATE
JUDGE’S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION (Doc. 20), at 1417 (D.N.M. Dec. 23, 2016) (finding that New Mexico’s commercial burglary statute lists
alternative means of committing a single crime) (hereinafter, “Jimenez Order”).
In response to the Government’s third objection, the Court agrees with the Magistrate
Judge that, on its face, Subsection B sets forth alternative means of committing the unitary crime
of non-residential burglary, and not alternative elements defining separate crimes. First, the
organization of New Mexico’s burglary statute indicates that its locational element is divisible
into two, and only two, categories: dwelling houses under Subsection A, and other structures
under Subsection B. N.M. Stat. Ann. § 30-16-3. Second, the statutory penalty is distinct for
burglary of a dwelling house under Subsection A, but the same for burglary of any of the

12

locations listed in Subsection B, which also supports the conclusion that the locations listed in
Subsection B are means and not elements. Id. Third, Subsection B’s plain language indicates
that it lists alternative means of committing a unitary crime, and not alternative elements of
separate crimes. As the list of alternatives in Howard, 742 F.3d at 1348, had the word “includes”
at the beginning, so the list of alternatives in Subsection B has the words “or other structure” at
the end. The words used are different, but they convey the same meaning, and serve the same
purpose, which is to signal a non-exhaustive list of illustrative examples. Mathis, 136 S. Ct. at
2256; Howard, 742 F.3d at 1348. A plain reading of Subsection B reveals that vehicles,
watercraft, and aircraft are simply examples of movable or immovable structures. N.M. Stat.
Ann. § 30-16-3(B). This reading is consistent with the canon of statutory construction ejusdem
generis, which the New Mexico Supreme Court applied to Subsection B in Muqqddin.9 2012NMSC-029, ¶¶ 30, 31, 285 P.3d 622. To summarize, the organization and text of New Mexico’s
burglary statute and the alternative punishments listed unequivocally convey that the statute is
divisible into Subsection A (residential burglary) and Subsection B (non-residential burglary),
and no further. Jimenez Order at 22.
Like the Magistrate Judge, the Court rejects the Government’s argument that New
Mexico law is unclear as to whether the list of alternatives in Subsection B is one of means or
elements. (Doc. 22 at 13-14; Doc. 23 at 9.) If state law were unclear, the Court could “peek” at
Defendant’s record of conviction “for the sole and limited purpose of determining whether the
listed items are elements of the offense.” Mathis, 136 S. Ct. at 2256-57 (internal quotation marks
and brackets omitted). State law, however, is clear. The list of alternative things or structures

9

“The rule of ejusdem generis requires that where general words follow an enumeration of persons or things of a
particular and specific meaning, the general words are not construed in their widest extent but are instead construed
as applying to persons or things of the same kind or class as those specifically mentioned.” Muqqddin, 2012NMSC-029, ¶ 29, 285 P.3d 622 (internal punctuation marks omitted).

13

illustrates different means of committing the crime of burglary, it does not provide separate
elements defining different crimes. In these circumstances, it is neither necessary nor permissible
for the Court to “peek” at Defendant’s record of conviction to determine whether the listed items
are means or elements.
Finally, the Government in its Objections fails to address the Magistrate Judge’s
observation that, even if the term “structure” in Subsection B were an alternative locational
element distinct from vehicles, watercraft, and aircraft as the Government claims, and even if the
Court did apply the modified categorical approach and determine that Defendant was convicted
of burgling a “structure,” this element would still be broader than generic burglary. Subsection
B provides that a “structure” may be “movable or immovable.” N.M. Stat. Ann. § 30-16-3(B).
Thus, the term would include, for example, a railroad car. Id.; see N.M. Stat. Ann. § 66-14.19(B) (“devices . . . used exclusively upon stationary rails or tracks” are not “vehicle[s]” under
New Mexico Motor Vehicle Code). Generic burglary, however, excludes movable structures
such as railroad cars from its locational element. See Taylor, 495 U.S. at 599 (Missouri burglary
statute with locational element that included “any booth or tent, or any boat or vessel, or railroad
car” was broader than generic burglary). Hence, even if New Mexico burglary of a “structure”
were a distinct crime from burglary of a vehicle, watercraft, or aircraft, the offense would still be
broader than generic burglary and thus the offense would not qualify as a violent felony under
the ACCA’s enumerated clause. Mathis, 136 S. Ct. at 2250-51, 2257.
In sum, New Mexico’s non-residential burglary statute is not divisible, is broader than
generic burglary, and is therefore not an enumerated violent felony under the ACCA.10 Id.; see
Jimenez Order at 22 (New Mexico non-residential burglary no longer qualifies as violent felony

10

Because New Mexico non-residential burglary no longer qualifies as a violent felony under the ACCA, whether
the Government waived its right to rely on Defendant’s 2002 conviction of this offense is irrelevant, and the Court
need not address that issue here. (Doc. 12 at 5-7; Doc. 14 at 1-3; Doc. 15 at 4-7; Doc. 22 at 14 n.10.)

14

under ACCA). Because Defendant’s 1994 aggravated vehicle burglary conviction and his 2002
commercial burglary conviction under NMSA § 30-16-3(B) no longer qualify as ACCA
predicates, Defendant has fewer than three prior convictions for violent felonies under the
ACCA, and his enhanced sentence will be vacated.
IT IS THEREFORE ORDERED that:
1.

The Government’s Objections (Doc. 23) are OVERRULED;

2.

The Magistrate Judge’s Proposed Findings and Recommended Disposition (Doc.

22) are ADOPTED as an order of the Court;
3.

Defendant’s Amended Emergency Motion to Correct Sentence under 28 U.S.C. §

2255 (Doc. 3) is GRANTED;
4.

Defendant’s sentence in Cr. No. 06-1436 JAP is VACATED; and

5.

A hearing to resentence Defendant in Cr. No. 06-1436 JAP is set at 1:40 pm on

Thursday, June 8, 2017.

_________________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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