Marquez v. United States Attorney
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Stephan M. Vidmar to DENY 1 Mr. Marquez's Motion to Correct Sentence. Objections to PF&RD are due by May 19, 2017. Add 3 days to the deadline if servic e 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).) (sg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
LEONARD G. MARQUEZ,
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before me on Defendant Leonard Marquez’s Motion to Correct
Sentence Pursuant to 28 U.S.C. § 2255, filed June 23, 2016.1 [CR Doc. 59; CV Doc. 1]. The
United States responded on September 22, 2016. [CR Doc. 66; CV Doc. 8]. Marquez replied on
December 5, 2016. [CR Doc. 73; CV Doc. 15]. The C. Honorable LeRoy Hansen, Senior
United States District Judge, referred this matter to me for analysis and a recommended
disposition. [CR Doc. 60; CV Doc. 2]. Having considered the briefing, relevant portions of the
underlying criminal record, and relevant authorities, and being otherwise fully advised in the
premises, I find that Marquez’s prior convictions for violating NMSA 1978, §§ 30-3-2(A)
(aggravated assault with a deadly weapon) and 30-16-3(A) (residential burglary) qualify as
violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), irrespective of
the now-unconstitutional residual clause. Therefore, his sentence is not unconstitutional and he
Concomitantly with the motion, which was filed by his attorney, Marquez himself submitted two filings pro se, a
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody
[CR Doc. 61; CV Doc. 3] and Memorandum of Supporting Facts [CR Doc. 62; CV Doc. 4], which were docketed on
June 27, 2016.
is not entitled to re-sentencing pursuant to Johnson v. United States and Welch v. United States.
His motion should be denied.
On February 16, 2007, Marquez was charged with being a felon in possession of a
firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2). Presentence Report (“PSR”) at 3. On September 8,
2010, he pleaded guilty to the offense. Id.
United States Probation and Pretrial Services had prepared his PSR. Id. The PSR
provided that Marquez qualified as an armed career criminal under the Armed Career Criminal
Act (“ACCA”) because he had at least three prior violent felony convictions: two for residential
burglary in New Mexico, one for aggravated assault with a deadly weapon in New Mexico, and
one for attempted robbery in New Mexico.
Id. at 7–8.
With the armed career criminal
enhancement, Marquez’s offense level was 33.2 Id. at 7. Based on a downward adjustment for
acceptance of responsibility, his total offense level was 30, with a criminal history category of VI
and a guideline imprisonment range of 168–210 months. Id. at 8, 31. On March 29, 2011, the
Court sentenced Marquez to 180 months’ imprisonment. [CR Doc. 57]. Marquez did not appeal
his sentence. The instant case is his first motion under § 2255.
In calculating his base offense level, the PSR indicated that Marquez’s prior convictions for residential burglary,
aggravated assault, and attempted robbery constituted “crimes of violence” under § 4B1.2(a) of the U.S. Sentencing
Guidelines Manual (“Guidelines”). PSR at 6–7. Pursuant to § 2K2.1(a), the provision that sets out the sentencing
guideline for § 922(g)(1) offenses, Marquez had a base offense level of 24 stemming from these prior convictions
for “crimes of violence.” Id. His total offense level was then calculated from this base offense level. Marquez does
not challenge his enhancement under § 2K2.1(a).
Motions under § 2255 and Johnson v. United States
Pursuant to 28 U.S.C. § 2255(a), a “prisoner in custody” pursuant to a federal conviction
may “move the court . . . to vacate, set aside or correct the sentence” if it “was imposed in
violation of the Constitution or laws of the United States.”
In Johnson v. United States, 135 S. Ct. 2551, 2557 (2015), the Supreme Court held that
the so-called “residual clause” of the definition of “violent felony” in the ACCA was
unconstitutionally vague. The ACCA defined “violent felony” as follows:
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). The closing words of this definition, italicized
above, have come to be known as the “residual clause.”
The Court explained that the residual clause left “grave uncertainty” about “deciding
what kind of conduct the ‘ordinary case’ of a crime involves.” Johnson, 135 S. Ct. at 2557. That
is, the residual clause “denie[d] fair notice to defendants and invite[d] arbitrary enforcement by
judges” because it “tie[d] the judicial assessment of risk to a judicially imagined ‘ordinary case’
of a crime, not to real-world facts or statutory elements.” Id. Second, the ACCA’s residual
clause left “uncertainty about how much risk it takes for a crime to qualify as a violent felony.”
Id. at 2558. By combining these two indeterminate inquiries, the Court held, “the residual clause
produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id. On
that ground it held the residual clause void for vagueness. Id.
Soon thereafter, the Court determined that the ruling in Johnson was substantive (as
opposed to procedural) and, therefore, had “retroactive effect in cases on collateral review.”
Welch v. United States, 136 S. Ct. 1257, 1268 (2016). Accordingly, Welch opened the door for
individuals sentenced under the residual clause of the ACCA’s violent-felony definition to move
to vacate their sentences as unconstitutional under § 2255.
Marquez’s § 2255 Motion
Marquez was designated as an armed career criminal—and thus, his sentence was
enhanced—based on four prior felony convictions: two for New Mexico residential burglary,3
NMSA 1978, § 30-16-3(A), and one each for New Mexico aggravated assault with a deadly
weapon, NMSA 1978, § 30-3-2(A), and New Mexico attempted robbery, NMSA 1978,
§§ 30-16-2, 30-28-1. This designation was based on a determination that all four convictions
qualified as violent felonies under § 924(e)(2)(B) of the ACCA. PSR at 7–8, 31.
Marquez argues that his prior convictions could have qualified as violent felonies4 (and,
thus, counted toward his armed career criminal designation) only under the now-invalidated
The PSR provides that Marquez had two prior New Mexico residential burglary convictions (both of which
qualified as violent felonies and contributed to his armed career criminal designation, along with his convictions for
aggravated assault and attempted robbery). PSR at 7–8; see also PSR at 10–11, 18–19. In his motion, Marquez
states that he had just one residential burglary conviction, though he cites to the PSR for this point. [CV Doc. 1]
at 1–2, 19. Marquez subsequently refers to his prior burglary “convictions,” acknowledging more than one.
[CV Doc. 15] at 10. Based on my own review of the PSR (and the fact that Marquez himself cited the PSR in
identifying his prior relevant convictions and subsequently referred to multiple residential burglary convictions), I
am satisfied that Marquez had two prior convictions for residential burglary, and four convictions total for purposes
of this analysis.
At various points in his briefing, Marquez uses the term “crime of violence” rather than “violent felony” to refer to
the qualifying standard that triggers a sentencing enhancement under the ACCA. E.g., [Doc. 1] at 2, 9, 19. “Violent
residual clause, entitling him to be resentenced.
The United States does not argue that
Marquez’s prior conviction for attempted robbery can be used to enhance his sentence under the
ACCA.5 [Doc. 9]6 at 2. The United States contends that his two residential burglary convictions
qualify under the ACCA’s so-called “enumerated clause,” which designates certain specific
crimes, including burglary, as violent felonies.7 Id. The government further contends that
whether Marquez has a third qualifying violent felony—and thus whether his sentence was
properly enhanced—depends on whether his aggravated assault conviction qualifies under the
so-called “force clause” of the ACCA. Id. It concludes that the Tenth Circuit’s decision in
United States v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016), disposes of this issue and
thus determines the ultimate outcome of this case. [Doc. 8] at 3–4.
I find that Marquez’s prior convictions for residential burglary and aggravated assault
qualify as violent felonies even absent the unconstitutional residual clause. His prior burglary
convictions qualify under the enumerated clause because New Mexico residential burglary is
substantially similar to generic burglary. And, based on the holding of Maldonado-Palma, his
prior conviction for aggravated assault with a deadly weapon qualifies under the force clause.
Therefore, I recommend that Marquez not be resentenced and that his § 2255 motion be denied.
felony” is the appropriate term. See § 924(e)(1), (2)(B). “Crime of violence” is the term used in career offender
sentencing enhancement pursuant to the sentencing guidelines. See Guidelines §§ 2K2.1(a), 4B1.2(a).
The government clarifies that it concedes this argument “for purposes of this case alone.” [Doc. 8] at 2.
Unless specifically noted otherwise, citations to document numbers refer to the docket in the civil case, case
number 16-cv-0641 LH/SMV.
The government does not challenge Marquez’s assertion that New Mexico residential burglary does not qualify as
a violent felony under the so-called “force clause” of the ACCA. See [Doc. 1] at 20. The parties dispute only
whether Marquez’s prior residential burglary convictions qualify under the enumerated clause.
Marquez’s convictions for New Mexico residential burglary
qualify as enumerated violent felonies under the ACCA.
To determine whether a prior conviction qualifies as a violent felony under
the enumerated clause, courts compare the elements of the crime of conviction
with the elements of the generic offense.
The enumerated clause of § 924(e)(2)(B) provides that an underlying felony conviction is
a “violent felony” if it “is burglary, arson, or extortion, [or] involves use of explosives.” To
determine whether a past conviction qualifies as one of the offenses enumerated in
§ 924(e)(2)(B)(ii), courts compare the elements of the crime of conviction with the elements of
the “generic” version of the listed offense—in other words, “the offense as commonly
understood.” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). A prior conviction
qualifies as an enumerated ACCA predicate offense only if its elements are the same as, or
narrower than, those of the generic offense. Id.; Mathis v. United States, 136 S. Ct. 2243, 2247
(2016). State law defines the substantive elements of the crime of conviction. United States v.
Harris, 844 F.3d 1260, 1264 (10th Cir. 2017). And federal law governs the definition and scope
of the generic offense. Id.; United States v. Rivera-Oros, 590 F.3d 1123, 1126 (10th Cir. 2009).
“A state statute does not need to match the generic definition verbatim.” Rivera-Oros,
590 F.3d at 1133. It need only “correspond in substance to the generic meaning.” Taylor v.
United States, 495 U.S. 575, 599 (1990). “[T]o find that a state statute creates a crime outside
the generic definition . . . . requires a realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the generic definition of a crime.”
Rivera-Oros, 590 F.3d at 1133 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
In undertaking this comparison of elements, courts generally apply the so-called
“categorical approach.” That is, courts consider only whether the elements of the crime of
conviction sufficiently match the elements of the generic offense, while ignoring the particular
facts of the case. Mathis, 136 S. Ct. at 2248 (citing Taylor, 495 U.S. at 600–01). If the
underlying statute of conviction “sweeps more broadly than the generic crime,” the prior
conviction cannot qualify as an ACCA predicate, irrespective of whether the defendant’s actual
conduct in committing the crime would qualify under the generic offense. Descamps, 133 S. Ct.
Some statutes, however, have a more complicated structure and require a slightly
different approach. A single statute may be “divisible”—it may list elements in the alternative—
and thereby define multiple crimes. Id. at 2281. When a statute defines multiple crimes by
listing alternative elements, courts undertake the “modified categorical approach” to determine
which of the multiple alternative elements listed in the statute applied to convict the defendant.
Under the modified categorical approach, a sentencing court looks to the record of
conviction to determine what crime, with what elements, a defendant was convicted of. The
court then compares the elements of that crime, as the categorical approach commands, with the
elements of the relevant generic offense. Id.
The Supreme Court has provided guidance for determining whether a statute is
indivisible or divisible and, thus, whether to implement the modified categorical approach first or
proceed directly to the categorical approach. Mathis, 136 S. Ct. at 2256–57. The central
question is whether the statute lists multiple elements disjunctively, thereby creating multiple
different crimes (i.e., a divisible statute, triggering the modified categorical approach), or
whether it enumerates various factual means of committing a single element (i.e., an indivisible
statute, requiring the categorical approach).
Id. at 2249–50.
If a state court decision
“definitively answers the question,” then a sentencing judge “need only follow what it says.” Id.
at 2256. Or, “the statute on its face may resolve the issue.” Id. If statutory alternatives carry
different punishments, then they must be elements (and, thus, the statute divisible, triggering the
modified categorical approach). 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.
New Mexico burglary, § 30-16-3, is divisible into its two subsections,
and Marquez was convicted under subsection A.
I find that Marquez’s statute of conviction, § 30-16-3, is divisible. The statute reads:
Burglary 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
§ 30-16-3. The statute is divisible into subsections A and B, which separate the alternative
elements. A plain-text reading of the statute shows that New Mexico burglary is divided into
residential burglary and all other types of burglary. Furthermore, the subsections carry different
Subsection A, burglary of a “dwelling house,” is a third degree felony.
Subsection B, burglary of a “vehicle, watercraft, aircraft or other structure, movable or
immovable,” is a fourth degree felony. Id. As Mathis instructs, statutory alternatives carrying
different penalties “must be elements.” 136 S. Ct. at 2256 (citing Apprendi, 530 U.S. 466). The
statute is divisible into subsection A (residential burglary) and subsection B (non-residential
Because I find the statute is divisible, I apply the modified categorical approach and first
determine whether Marquez was convicted under subsection A or subsection B. Id. at 2249
(describing the modified categorical approach). Neither party has submitted documentation of
Marquez’s prior convictions to the Court, but both parties describe his prior convictions as being
for “residential burglary” under § 30-16-3(A). [Doc. 1] at 1–2; [Doc. 8] at 1; [Doc. 15] at 10.
Additionally, the PSR characterizes Marquez’s prior burglary convictions as residential burglary
convictions. PSR at 7–8. Therefore, I find that Marquez was convicted under subsection A of
I have already concluded, in earlier cases, that § 30-16-3 is divisible into subsections A and B. E.g., United States
v. Jimenez, 16-cv-0661 RB/SMV, [Doc. 18] at 9–10 (D.N.M. Nov. 16, 2016); United States v. Perez, 16-cv-0545
RB/SMV, [Doc. 12] at 14 n.7 (D.N.M. Oct. 12, 2016).
Marquez urges that evaluating the statute’s divisibility at the outset “puts the cart before the horse.” [Doc. 15] at 2.
He continues, “[t]he issue is not whether the statute is divisible, but whether the New Mexico offense of burglary of
a dwelling is broader than generic burglary.” Id. I agree that an analysis of whether New Mexico residential
burglary is broader than generic burglary is central to reaching a decision in this case, and I embark on such an
analysis infra. However, I consider that question only after first concluding that the statute is divisible and that
Marquez was convicted under subsection A, and not subsection B. Otherwise, if I were to assume that the
New Mexico burglary statute were indivisible, the relevant inquiry would be whether New Mexico burglary in its
entirety—burglary of a “vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable”—has the
same elements as generic burglary. Where a statute is divisible, like this statute, Mathis instructs otherwise; the
appropriate inquiry, following application of the modified categorical approach, is whether New Mexico burglary of
Subsection A of the New Mexico burglary statute (residential burglary)
is substantially similar to generic burglary.
Having concluded that Marquez’s prior convictions are for New Mexico residential
burglary, I next “compare the elements of the crime of conviction (including the alternative
element used in the case) with the elements of the generic crime.” Descamps, 133 S. Ct. at 2281.
I find that New Mexico residential burglary—the unauthorized entry of a dwelling house with
the intent to commit any felony or theft therein—is substantially the same as, or narrower than,
The parties agree that Taylor sets out the elements of generic burglary: “an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent to commit a
crime.” 495 U.S. at 599; see also Mathis, 136 S. Ct. at 2248 (quoting Taylor for the generic
definition); [Doc. 1] at 20 (quoting Taylor, 495 U.S. at 599); [Doc. 8] at 5–6 (quoting Mathis,
136 S. Ct. at 2248). The parties dispute the breadth of the locational element of both generic
burglary and New Mexico residential burglary. That is, they dispute whether the definition of
“dwelling house” in subsection A of the New Mexico statute is broader than the definition of
“building or other structure” in the generic offense.10
a “dwelling house” has the same elements as (or narrower elements than) generic burglary. See Mathis, 136 S. Ct.
at 2256 (characterizing the divisibility question (“elements or means?”) as the “threshold inquiry”).
To stave off any confusion, I note at the outset that, in the Tenth Circuit, the generic offense of “burglary,” as
enumerated in the ACCA, is separate from the generic offense of “burglary of a dwelling,” as enumerated in the
Guidelines. The line of case law interpreting generic burglary is distinct from the line of case law interpreting
generic burglary of a dwelling; though perhaps counterintuitive, generic burglary of a dwelling is not merely a
specialized type of generic burglary. Compare, e.g., United States v. Ramon Silva, 608 F.3d 663, 666–68 (10th Cir.
2010) (analyzing generic burglary), with Rivera-Oros, 590 F.3d at 1128–33 (analyzing generic burglary of a
dwelling and noting that the analysis is separate from that of generic burglary).
Marquez argues that the locational element of New Mexico residential burglary,
“dwelling house,” is broader than that of generic burglary, “building or other structure.”
[Doc. 1] at 19–21. See generally [Doc. 15]. He argues that New Mexico residential burglary
encompasses the burglary of any of the structures listed in either subsection A or subsection B of
the statute (“any vehicle, watercraft, aircraft, dwelling or other structure, movable or
immovable”), provided the structure is used for habitation. [Doc. 1] at 20; [Doc. 15] at 3–4.
Therefore, Marquez argues, a person could be convicted under subsection A for burglarizing a
movable vehicle in which someone is living. [Doc. 15] at 4, 9 (arguing that a dwelling house
could be a “movable vehicle” or “watercraft, trailer, mobile home, car, RV, or even
tractor-trailer truck in which a person is customarily living”). He further contends that generic
burglary is limited to the burglary of a building or other “enclosed space” that is not movable.
Id. at 8 (citing Taylor, 495 U.S. at 598, and Shepard v. United States, 544 U.S. 13, 15–16
(2005)). Because, as he maintains, generic burglary does not accommodate the burglary of
movable structures such as motor vehicles, even where used as habitations, New Mexico
residential burglary is overbroad. Thus, Marquez argues, his prior convictions for residential
burglary cannot qualify as violent felonies under the enumerated clause of the ACCA.
The United States disagrees, arguing that subsection A should be cabined by its plain
language, which refers only to burglary of a “dwelling house” and does not refer to burglary of
“vehicles, watercrafts, and aircrafts.” [Doc. 8] at 8–9. The government urges the Court not to let
state law interpretations of the non-residential burglary subsection inform the scope and meaning
of residential burglary. Id. at 10–11. The government also points out that New Mexico law
further narrows “dwelling house” to only those structures “customarily used as living quarters.”
Id. at 9.
I find Marquez’s argument unpersuasive. First, New Mexico residential burglary is not
as broad as Marquez claims; it is not susceptible to the interpretation that he urges the Court to
accept. Rather, a plain-text reading of the statute, the Supreme Court’s decision in Mathis, and
state court decisions interpreting convictions under subsection A compel a finding that
New Mexico residential burglary does not include the burglary of all the structures listed in
§ 30-16-3, including movable structures. Nor does the Tenth Circuit construe generic burglary
as narrowly as Marquez claims. Even if New Mexico courts interpreted residential burglary to
include the burglary of a movable vehicle in which a person was living, the residential burglary
subsection would still comport with the generic definition. The Tenth Circuit has held that
generic burglary encompasses burglary of such structures when they are used as habitations.
Ultimately, there is no realistic probability that New Mexico courts would construe burglary of a
“dwelling house” in a way that would render it overbroad. See Gonzales, 549 U.S. at 193.
New Mexico residential burglary is not susceptible
to the broad interpretation Marquez urges—It does not encompass
the burglary of all structures listed in § 30-16-3.
New Mexico residential burglary—the burglary of a “dwelling house,” under
subsection A of the burglary statute—simply does not encompass, as Marquez suggests, the
burglary of any and all structures listed in § 30-16-3(B), so long as the structure is used as a
First, such an interpretation would defy a plain-text reading of the statute and would
impermissibly disregard the mandate of Mathis.
The New Mexico legislature purposefully
separated burglary of a dwelling house from all other types of burglaries by dividing the burglary
statute into two subsections, carrying two different punishments, based on their respective
locational elements—subsection A (dwelling houses, a third degree felony) and subsection B
(vehicles, watercrafts, aircrafts, and other structures, movable or immovable, a fourth degree
felony). See § 30-16-3(A)–(B). It defies logic to read subsection A as encompassing burglary of
a vehicle, for example, when subsection B of the very same statute—and subsection B alone—
explicitly refers to burglary of a vehicle. That the subsection B structures, as Marquez points
out, “also appear in the introductory paragraph to § 30-16-3, which defines all types of
New Mexico burglary,” is immaterial under Mathis when, as here, a statute is divisible. See
[Doc. 15] at 5. According to the Mathis modified categorical approach, when a statute is
divisible into multiple alternative elements, courts must compare the crime of conviction against
the generic offense using the specific alternative element that was used to convict the
Marquez relies on a tortured reading of the New Mexico burglary statute in order to reach this conclusion. He
argues that all the structures listed in subsection B can be read into subsection A by dint of the fact that New Mexico
Uniform Jury Instruction (“UJI”) 14-1631 defines “dwelling house” as “any structure, any part of which is
customarily used as living quarters.” (emphasis added); see [Doc. 15] at 3–4. This single thread of connectivity—
the presence of the word “structure” in UJI 14-1631—renders the subsection B structures applicable to subsection A,
he argues. Id. He further contends that because “the term ‘other structure’ also appears in the introductory
paragraph to § 30-16-3, which defines all types of New Mexico burglary,” New Mexico courts’ analyses of that term
bind to subsection A as well as subsection B. Id. at 5. Under this guise, he relies on New Mexico case law
interpreting the locations enumerated in subsection B to argue how broad subsection A can be. Id. at 4–9 (citing
New Mexico case law). For the reasons set out infra, his reliance on case law evaluating convictions under
subsection B of the statute is unavailing.
defendant—in this case, “dwelling house” and not “vehicle, watercraft, aircraft or other structure,
movable or immovable.” See 136 S. Ct. at 2256. Mathis directs courts away from analyzing a
statute globally when the statute, like New Mexico burglary, is divisible.
Second, Marquez supplies no authority to support his theory that the locations
enumerated in subsection B (and the case law interpreting them) can be applied to
subsection A—that the language in UJI 14-1631 defining “dwelling house” provides a hook
sufficient to reel in this whole separate body of case law.
He cites no case in which a
New Mexico court relied on an interpretation of a subsection B structure to evaluate a conviction
under subsection A. He cites no case in which a New Mexico court interpreted the meaning of
“dwelling house” or elaborated on the definition supplied in UJI 14-1631.12, 13 That Marquez has
failed to identify any such authority tends to suggest that there is no realistic probability that the
Marquez does cite to two cases that contemplate burglarized “dwelling[s]” under New Mexico’s separate
aggravated burglary statute, § 30-16-4, though neither case alters my analysis. See [Doc. 15] at 4 (citing State v.
Anaya, 2015 WL 2092804, at *4 (N.M. May 4, 2015) (unpublished), and State v. Daugherty, 2013 WL 4105525, at
*4 (N.M. Aug. 1, 2013) (unpublished)). In both cases, the New Mexico Supreme Court upheld the defendant’s
conviction for aggravated burglary where the defendant burglarized a “trailer [the victims] rented from [the
defendant],” Anaya, 2015 WL 2092804, at *1, and a “mobile home,” Daugherty, 2013 WL 4105525, at *1.
Marquez asserts that because the Court referred to such structures as “dwellings,” these cases support his position
that New Mexico residential burglary encompasses “moving structures.” [Doc. 15] at 4. I am not persuaded. First,
New Mexico’s aggravated burglary statute is not split into subsections, so conviction in these cases did not depend
on whether the burglarized structures were dwellings. And, in fact, the Court in these cases embarked on no such
analysis—it only referred to the structures in passing as a “dwelling or other structure” or a “dwelling.” Finally, as
discussed infra, the Tenth Circuit has held that generic burglary does encompass trailers and like structures that are
utilized as habitations.
Marquez also cites a New Mexico Supreme Court case from 1967 that he claims upheld a conviction for “burglary
of a dwelling” where the burglarized structure was a drugstore at which the owner “habitually slept on a cot.”
[Doc. 15] at 3–4 (citing State v. Hudson, 1967-NMSC-164, ¶¶ 10–11, 78 N.M. 228). However, Hudson was decided
prior to the division of New Mexico burglary into a third-degree felony (for residential burglary) and a fourth-degree
felony (for non-residential burglary). See UJI 14-1631, committee commentary. Thus, conviction did not depend
on whether the burglarized building was a “dwelling” under the statute. Furthermore, the Court explicitly noted that
the issue before it was not whether the building was a “dwelling.” See Hudson, 1967-NMSC-164, ¶ 10. Rather, the
issue was whether there was a material variance between the information (charging burglary of a “dwelling”
belonging to the victim) and the proof presented at trial (establishing burglary of victim’s shop, which was
“designed for occupancy and use by humans” and “had been adapted for such use on a 24-hour basis, thus assuming
the character of a dwelling”). Id. ¶ 11.
residential burglary statute would be applied in the manner he proposes. See Gonzales, 549 U.S.
Finally, consideration of the limited case law from the New Mexico courts addressing
convictions under subsection A contravenes Marquez’s interpretation and further compels the
outcome that I recommend. The few cases interpreting burglary of a “dwelling house” have
done so under narrow factual circumstances—namely, determining whether a house or similar
structure (e.g., a garage attached to a house) met the “living quarters” requirement of “dwelling
house.” In State v. Ervin, the New Mexico Court of Appeals held that a burglarized house was a
“dwelling house” under § 30-16-3(A) because the defendant could not establish that the previous
occupant “had abandoned the house or had no intention of returning.” 1981-NMCA-068, ¶¶ 1, 4,
96 N.M. 366, 367. The court cited with approval 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.” Id. ¶ 3. Ervin suggests that
New Mexico residential burglary concerns only those structures that lend themselves to
occupancy over some fixed period of time, not just brief or fleeting habitation. See id.; see also
State v. Lara, 1978-NMCA-112, ¶¶ 4–5, 92 N.M. 274, 275 (holding that a garage attached to a
residence but from which there was no direct access to the interior of the house was a “dwelling
house” under the residential burglary statute “because the garage was a part of the structure used
as living quarters”). These analyses of what constitutes a “dwelling house” are far removed from
the type of analysis Marquez envisions.
In the one case in which a New Mexico court actually discussed the subsection B
structures in evaluating a conviction under subsection A, the New Mexico Court of Appeals
rejected the argument Marquez raises here. State v. Ruiz, 1980-NMCA-123, 94 N.M. 771,
superseded by statute on other grounds as stated in State v. McCormack, 1984-NMCA-042,
¶ 12, 101 N.M. 349, 351–52. In Ruiz, the court addressed the meaning of “dwelling house” in
the context of holding that criminal trespass is a lesser included offense of residential burglary.
Id. ¶¶ 40–46. The court explained that “[t]he offense charged was burglary of a dwelling house;
thus, we are not concerned with vehicles, watercraft or aircraft, or other structures.” Id. ¶ 39. In
comparing the respective locational elements of residential burglary (entry of a “dwelling
house”) and criminal trespass (entry of “lands of another”), the court held that trespass is a lesser
included offense of residential burglary because entry of a dwelling house necessarily means
entry “upon the lands of another.” Id. ¶ 45 (internal quotation marks omitted). “Lands,” the
court stated, “includes buildings and fixtures, and is synonymous with real property.”
(internal quotation marks omitted). “When one enters another’s dwelling house, . . . one has
entered lands of another.” Id. The court was careful to note that “[t]his reasoning, of course,
would not apply if the burglary was of a vehicle, watercraft or aircraft.” Id. The court in Ruiz
stated plainly (albeit in dicta) that the locational element of residential burglary is limited to
fixed structures and excludes vehicles and the like.
Marquez argues that a person could be convicted under subsection A for burglarizing a
subsection B structure, such as a vehicle, in which someone was living. But he cites no case in
which a New Mexico court has considered—much less accepted—this proposition.
interpretation he urges simply has not been borne out by the case law. And, in fact, the few cases
that have interpreted subsection A point to the opposite conclusion. Subsection A of the burglary
statute is not susceptible to the broad interpretation that Marquez asks the Court to give it. The
locational element of New Mexico residential burglary is limited to fixed structures and does not
extend to movable structures, such as vehicles, set out in the separate non-residential burglary
Generic burglary is broader than Marquez argues it is—
It includes the burglary of a vehicle used as a habitation.
Even if the New Mexico residential burglary statute could be read to include the burglary
of a vehicle in which a person were living, as Marquez maintains, it still would not be overbroad,
because generic burglary in the Tenth Circuit is not as narrow as Marquez contends it is. There
is no question that generic burglary excludes the burglary of “vehicles,” that is, movable
structures used for transportation. Taylor, 495 U.S. at 599 (generic burglary’s locational element
does not include “automobiles”); Shepard, 544 U.S. at 15–16 (generic burglary is limited to
burglaries “committed in a building or enclosed space . . ., not in a boat or motor vehicle”);
Mathis, 136 S. Ct. at 2250 (Iowa statute was overbroad where it reached “any building, structure,
[or] land, water, or air vehicle” (emphasis and alteration in original) (internal quotation marks
omitted)). Marquez, however, interprets the Supreme Court’s language on vehicles and movable
structures to mean that generic burglary can never encompass the burglary of any movable
structure, even when such structure is used as a habitation. See [Doc. 15] at 8, 9.
The Tenth Circuit has spoken on this issue. In United States v. Spring, the court held that
generic burglary encompasses the burglary of a “mobile home or vehicle adapted for the
overnight accommodation of persons.” 80 F.3d 1450, 1462 (10th Cir. 1996) (internal quotation
marks omitted). The court in Spring noted that the Texas statute at issue did “not include
vehicles in the sense in which Taylor intended,” that is, vehicles whose sole or primary purpose
is transportation, rather than habitation. Id. In reaching this conclusion, the court pointed to the
purpose behind the inclusion of burglary as a predicate offense and Taylor’s differentiation
between burglary of a building and burglary of a car: the burglary of structures such as homes
poses a risk of violence to the occupants of the house or other structure.
United States v. Sweeten, 933 F.2d 765, 771 (9th Cir. 1991), overruled by United States v. Grisel,
488 F.3d 844 (9th Cir. 2007)). The burglary of a vehicle, by contrast, is more like a property
crime; it is less severe because it does not pose the same risk of violent confrontation. Id.
(quoting Sweeten, 933 F.2d at 771). The burglary of a mobile home or like structure “adapted
for the overnight accommodation of persons” is much more like the burglary of a home than a
vehicle. Id. (quoting Sweeten, 933 F.2d at 771). Indeed, as the court noted, it “is often likely to
pose a greater risk of violence to the occupant or owner than the burglary of a building or house
because it is more difficult for the burglar to enter or escape unnoticed.” Id. (quoting Sweeten,
933 F.2d at 771).
The Tenth Circuit reiterated the holding of Spring in Ramon Silva, 608 F.3d at 668.
“‘[T]he generic definition [of burglary] broadly construes the possible settings for burglary,’” the
court noted. Id. (second alteration in original) (quoting United States v. Cummings, 531 F.3d
1232, 1235 (10th Cir. 2008)). It is not restricted to “permanent” spaces “designed for human
habitation or business.”
Id. (internal quotation marks omitted).
Generic burglary is
“‘coterminous,’” the court concluded, with a state statute that prohibits burglary of “‘a building
or other place designed to provide protection for persons or property against weather or
intrusion,’” but that does not include “‘vehicles or other conveyances whose primary purpose is
transportation.’”14 Id. (emphasis added) (quoting Cummings, 531 F.3d at 1235–36).
Thus, while the law is clear that generic burglary does not include those movable
structures “whose primary purpose is transportation,” id. (internal quotation marks omitted), in
the Tenth Circuit, mobile homes, trailers, and like structures used for habitation do satisfy
generic burglary’s locational element.15 The hypothetical situation to which Marquez repeatedly
turns in his briefing—a person living in a car or movable trailer—does not, in fact, run afoul of
the definition of generic burglary within the Tenth Circuit.16
Ultimately, underlying my comparison of New Mexico residential burglary with generic
burglary is the Supreme Court’s mandate that there must be “a realistic probability, not a
Marquez suggests that the Court disregard the analysis in Ramon Silva because it misapplied the modified
categorical approach. [Doc. 15] at 10–12. It is true that Mathis rendered incorrect the application of the modified
categorical approach in Ramon Silva. However, application of the modified categorical approach is separate from
analysis of the breadth of generic burglary. The latter analysis, which I cite supra, is unaltered by Mathis.
Other circuits have reached the same conclusion as the Tenth Circuit. See United States v. Constante, 544 F.3d
584, 585 (5th Cir. 2008) (per curiam) (referencing the same Texas statute at issue in Spring and noting that the Fifth
Circuit has reached the same conclusion) (citing United States v. Silva, 957 F.2d 157, 162 (5th Cir. 1992)); United
States v. Nance, 481 F.3d 882, 887–88 (6th Cir. 2007) (holding that a conviction under Tennessee law for burglary
of a “habitation”—which the state statute defined to include buildings, mobile homes, and trailers, among other
structures, used for overnight accommodations—satisfied the generic definition of burglary and was a qualifying
violent felony under the ACCA). As Marquez points out, the Fourth Circuit has reached the opposite conclusion.
[Doc. 15] at 13–14 (citing United States v. White, 836 F.3d 437 (4th Cir. 2016), and United States v. Henriquez, 757
F.3d 144 (4th Cir. 2014)). The Eighth and Ninth Circuits have adopted positions similar to that of the Fourth
Circuit. United States v. Sims, 2017 WL 1500308, at *2 (8th Cir. Apr. 27, 2017); Grisel, 488 F.3d at 850–51.
In addition to the Fourth Circuit’s decisions in White and Henriquez, Marquez urges the Court to follow the
positions adopted by the District of Kansas and other courts outside this District finding various state burglary
statutes to be broader than generic burglary because they encompass movable structures. See [Doc. 15] at 13–16.
The cases he cites are largely foreclosed by the Tenth Circuit’s rationale in Spring or are otherwise distinguishable
from the present case. Moreover, to the extent they do provide support for Marquez’s position, none is binding on
theoretical possibility, that the [s]tate would apply its statute to conduct that falls outside the
generic definition of a crime.” Gonzales, 549 U.S. at 193. To make such a finding “requires
more than the application of legal imagination to a state statute’s language.” Id. Marquez asks
the Court to conjure a circumstance under which a person could be convicted under subsection A
for burglarizing a structure listed in subsection B—and not just any structure, but one, utilized as
a dwelling, that would fall outside the Tenth Circuit’s permissive conception of the locational
element of generic burglary. See Ramon Silva, 608 F.3d at 668. Marquez himself does not point
to any such case. There is no realistic probability that New Mexico courts would apply the
residential burglary statute to a locational element outside the generic definition.
I find that burglary of a dwelling under § 30-16-3(A) meets the generic definition of
“burglary.” Further, there is no realistic probability that the New Mexico courts would interpret
the provision in a manner that would sever this correspondence in the future.
New Mexico’s residential burglary statute, § 30-16-3(A), qualifies as an enumerated “violent
felony” under the ACCA, 18 U.S.C. § 924(e)(2)(B), irrespective of the now-unconstitutional
Marquez’s conviction for New Mexico aggravated assault with a deadly weapon
qualifies as a violent felony under the force clause of the ACCA.
The force clause of § 924(e)(2)(B) provides that an underlying felony conviction is a
“violent felony” where it “has as an element the use, attempted use, or threatened use of physical
Several other opinions in this District have reached the same conclusion. See, e.g., Turrieta v. United States,
16-cv-0395 JAP/KK, [Doc. 10] at 6–8 (D.N.M. Oct. 28, 2016); United States v. Tolentino, 16-cv-0583 MV/LAM,
[Doc. 12] at 10–14 (D.N.M. Feb. 17, 2017); United States v. Sedillo, 16-cv-0426 MCA/LAM, [Doc. 18] at 11–13
(D.N.M. Mar. 6, 2017); Sandoval v. United States, 16-cv-0410 LH/CG, [Doc. 16] at 5–7 (D.N.M. Apr. 18, 2017);
United States v. Alires, 14-cr-3902 JB, [Doc. 43] at 28–36 (D.N.M. May 1, 2017).
force against the person of another.” Again, courts apply the categorical approach (after, where
necessary, applying the modified categorical approach to divisible statutes, as described supra),
looking only to the elements of the crime of conviction and ignoring the particular underlying
facts. Descamps, 133 S. Ct. at 2283. Courts must determine whether the least culpable conduct
criminalized by the underlying statute of conviction satisfies the physical force requirement of
§ 924(e)(2)(B)(i). State law governs determinations of the force required for conviction of the
Harris, 844 F.3d at 1264.
And federal law controls the meaning of
“physical force” under the force clause. Id.; see also Johnson v. United States (“C. Johnson”),
559 U.S. 133, 138–40 (2010) (interpreting “physical force” to require “violent force—that is,
force capable of causing physical pain or injury to another person”).
Marquez was convicted of aggravated assault, § 30-3-2. That statute provides:
Aggravated assault consists of either:
A. unlawfully assaulting or striking at another with a deadly
B. committing assault by threatening or menacing another while
wearing a mask, hood, robe or other covering upon the face, head
or body, or while disguised in any manner, so as to conceal
C. willfully and intentionally assaulting another with intent to
commit any felony.
§ 30-3-2. There is no dispute that Marquez was convicted of aggravated assault with a deadly
weapon, § 30-3-2(A). See [Doc. 1] at 2; [Doc. 8] at 1; see also PSR at 8.
The Tenth Circuit’s recent decision in United States v. Maldonado-Palma, 839 F.3d
1244, dictates the outcome here.18 The court first held that the New Mexico aggravated assault
statute is divisible—it consists of three subsections setting out alternative elements. Id. at 1247.
It went on to hold that § 30-3-2(A), aggravated assault with a deadly weapon, is categorically a
“crime of violence” under the force clause of Guidelines § 2L1.2. Id. at 1248–50. Aggravated
assault with a deadly weapon requires the use (and not just the mere possession) of a deadly
weapon in carrying out the assault. Id. at 1250. In New Mexico, a deadly weapon is one that is
“‘capable of producing death or great bodily harm . . .; or any other weapon with which
dangerous wounds can be inflicted.’” Id. (first alteration in original) (quoting NMSA 1978,
§ 30-1-12(B)). Employing such a weapon in an assault “necessarily threatens the use of physical
force, i.e., ‘force capable of causing physical pain or injury to another person.’” Id. (quoting
C. Johnson, 559 U.S. at 140). Therefore, the court concluded, New Mexico aggravated assault
with a deadly weapon is categorically a crime of violence. Id.
The holding of Maldonado-Palma applies in equal measure to the identically worded
force clause of the ACCA’s definition of violent felony. Interpretations of the force clause in the
Guidelines context are equally applicable in the ACCA context, and vice versa. See id. at 1248
(relying on interpretation of “physical force” in ACCA case to inform meaning of Guidelines
force clause); Ramon Silva, 608 F.3d at 671 (“Given the similarity in language between the
ACCA and [Guidelines], we have occasionally looked to precedent under one provision for
In his motion, which was filed before Maldonado-Palma was decided, Marquez argued that his aggravated assault
conviction did not qualify under the force clause, urging the Court to adopt the position taken by the Sixth Circuit in
United States v. Rede-Mendez, 680 F.3d 552, 560 (6th Cir. 2012). [Doc. 1] at 2–7. In his reply, Marquez
acknowledged the outcome of Maldonado-Palma, which had been decided in the interim, and noted only that he
“disagrees with” the holding and “relies on the arguments he made” in his motion. [Doc. 15] at 1–2.
guidance under another.”); United States v. Mitchell, 653 F. App’x 639, 642 (10th Cir. 2016)
(“We have consistently applied the same analysis to the career offender provision and the
analogous provision of the ACCA where the clauses are virtually identical.” (internal quotation
In other words, Maldonado-Palma compels a finding that New Mexico
aggravated assault with a deadly weapon qualifies as a violent felony under the force clause of
the ACCA. Therefore, New Mexico’s aggravated assault with a deadline weapon statute, § 30-32(A), qualifies as an enumerated “violent felony” under the ACCA, 18 U.S.C. § 924(e)(2)(B),
irrespective of the now-unconstitutional residual clause.
Marquez’s two prior convictions for residential burglary and one prior conviction for
aggravated assault with a deadly weapon qualify as violent felonies under the enumerated clause
and force clause of the ACCA’s definition of violent felony, respectively. Because Marquez has
three qualifying prior convictions, irrespective of the now-unconstitutional residual clause, I find
that he is not entitled to re-sentencing and I recommend that his motion be denied.
IT IS THEREFORE RECOMMENDED that Defendant Leonard G. Marquez’s Motion
to Correct Sentence Pursuant to 28 U.S.C. § 2255 [CR Doc. 59; CV Doc. 1] be DENIED and
that case No. 16-cv-0641 LH/SMV be DISMISSED with prejudice.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN FOURTEEN 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 written 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. See D.N.M.LR-Civ. 10.1. If no objections are
filed, no appellate review will be allowed.
STEPHAN M. VIDMAR
United States Magistrate Judge
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