Marquez v. United States Attorney

Filing 24

ORDER by Senior District Judge James A. Parker ADOPTING Magistrate Judge's Proposed Findings and Recommended Disposition 16 , Denying 8 Request for a stay of proceedings filed by USA; Overruling 21 Objections to Report and Recommendations filed by Leonard G Marquez and Denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Leonard G Marquez (bap)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff,
v.

No. CIV 16-641 JAP/SMV
No. CR 07-286 JAP

LEONARD G. MARQUEZ,
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
On May 5, 2017, United States Magistrate Judge Stephen M. Vidmar filed Proposed
Findings and Recommended Disposition (PFRD) (Civ. No. 16), recommending that Defendant
Leonard Marquez’s Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 (Civ. No. 1) be
denied. Marquez objected to the PFRD on July 25, 2017. (Civ. No. 21). The government neither
objected to the PFRD nor responded to Marquez’s objections. On September 18, 2017, this case
was reassigned from Senior District Judge C. Leroy Hansen to Senior District Judge James A.
Parker. The Court conducted a de novo review of the portions of the PFRD to which Marquez
objects and will overrule the objections, adopt the PFRD, deny Marquez’s Motion, and dismiss
this § 2255 proceeding with prejudice.
Background
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

The PSR stated 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 New Mexico residential burglary,1 NMSA 1978, § 30-16-3(A), and one for New Mexico
aggravated assault with a deadly weapon, NMSA 1978, § 30-3-2(A), and one for New Mexico
attempted robbery, NMSA 1978, §§ 30-16-2, 30-28-1. The PSR indicated that all four
convictions qualified as violent felonies under § 924(e)(2)(B) of the ACCA. PSR at 7–8, 31.
With the armed career criminal enhancement, Marquez’s offense level was 33. 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, Marquez’s guideline imprisonment range was 168–210
months. Id. at 8, 31. On March 29, 2011, the Court sentenced Marquez to 180 months
imprisonment. Marquez did not appeal his sentence. This is Marquez’s first § 2255 Motion.
United States Supreme Court decisions of Johnson and Welch
In Johnson v. United States (“Johnson II”), 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

1

The PSR indicated 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 § 2255 Motion,
Marquez stated that he had just one residential burglary conviction, though he cited to the PSR for this point. § 2255
Motion at 1–2, 19. Marquez subsequently referred to multiple prior burglary “convictions,” acknowledging more
than one. Reply at 10 (Civ. No. 15).

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(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.”
In Welch v. United States, 136 S. Ct. 1257, 1268 (2016), the Supreme Court determined
that the ruling in Johnson II was substantive (as opposed to procedural) and, therefore, had
“retroactive effect in cases on collateral review.” Accordingly, Welch opened the door for
individuals sentenced under the residual clause of the ACCA’s violent-felony definition to move
under § 2255 to vacate their sentences as unconstitutional.
Summaries of Parties’ Arguments and Judge Vidmar’s PFRD
Marquez argued, in part, that his prior convictions only qualified as violent felonies under
the now-invalidated residual clause and that, he is, therefore, entitled to be resentenced. The
government contended that his two residential burglary convictions qualified under the ACCA’s
so-called “enumerated clause,” which designated certain specific crimes as violent felonies.2
Response at 5 (Civ. No. 8). The government asserted that whether Marquez’s third conviction for
aggravated assault with a deadly weapon qualified as an ACCA violent felony under the
so-called “force clause” of the ACCA depended on the Tenth Circuit’s decision in United States
v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016), cert. denied, 137 S.Ct. 1214 (2017),
which was then pending.3,4 Id. at 2–4.
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The government did not contend that New Mexico residential burglary qualified under the ACCA’s “force clause.”
The government also requested a stay of proceedings pending a decision in Maldonado-Palma. Response at 2–4.
Maldonado-Palma was decided shortly after the government filed its Response and before Marquez replied. The
government’s request for a stay of proceedings will therefore be denied as moot.
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A. New Mexico residential burglary is a violent felony under the enumerated clause
of § 924(e)(2)(B)
In finding that Marquez’s two earlier convictions for New Mexico residential burglary
qualified as ACCA violent felonies, Judge Vidmar first determined that the pertinent state
statute, NMSA § 30-16-3, was divisible and then applied the modified categorical approach to
decide that Marquez was convicted for New Mexico residential burglary under § 30-16-3(A).
PFRD at 8–9. After a thorough analysis, Judge Vidmar rejected Marquez’s broad interpretation
of New Mexico’s residential burglary statute, id. at 11–20, concluding that the burglary of a
dwelling under § 30-16-3(A) “meets the generic definition of ‘burglary’” and that a New Mexico
residential burglary conviction qualified as an enumerated ACCA violent felony, “irrespective of
the now-unconstitutional residual clause.” Id. at 20.
B. New Mexico aggravated assault with a deadly weapon is a violent felony under
the force clause of § 924(e)(2)(B)
In finding that Marquez’s conviction for New Mexico assault with a deadly weapon
qualified as an ACCA violent felony, Judge Vidmar observed that the parties did not dispute that
Marquez was convicted of aggravated assault with a deadly weapon under NMSA § 30-3-2(A).
PFRD at 21. Judge Vidmar then recited the Tenth Circuit Court’s holding in Maldonado-Palma
that a conviction of aggravated assault with a deadly weapon under the force clause of
Sentencing Guideline § 2L1.2 was categorically a crime of violence. Judge Vidmar reasoned that
the holding in Maldonado-Palma applied “in equal measure to the identically worded force

4

The government did not argue that Marquez’s attempted robbery conviction could be used to enhance his sentence.
It conceded that it would not rely upon this conviction to enhance Marquez’s sentence “for purposes of this case
alone.” Response at 2.

4

clause of the ACCA’s definition of violent felony” and that Maldonado-Palma compelled the
conclusion that New Mexico aggravated assault with a deadly weapon qualified as an ACCA
violent felony under the force clause. Id. at 22, 23. Stated differently, the ACCA’s nowinvalidated residual clause played no role in the determination of whether the pertinent crime
constituted an ACCA violent felony. Id. at 23.
Having determined that Marquez’s two convictions for New Mexico residential burglary
and one conviction for New Mexico aggravated assault with a deadly weapon qualified as ACCA
violent felonies, Judge Vidmar found that Marquez was properly sentenced and recommended
that his § 2255 Motion be denied.
Analysis of Marquez’s Objections
A. Legal Standard
A district judge must “make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C). “[O]bjections to the magistrate judge’s report must be both timely and specific to
preserve an issue for de novo review by the district court[.]” United States v. 2121 E. 30th St., 73
F.3d 1057, 1060 (10th Cir. 1996). To preserve an issue, a party’s objections to a PFRD must be
“sufficiently specific to focus the district court’s attention on the factual and legal issues that are
truly in dispute.” Id.

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B. Objections
1. New Mexico Residential Burglary
While Johnson II invalidated the residual clause of the ACCA, it did not impact the
enumerated offenses listed in 18 U.S.C. § 924(e)(2)(B)(ii), which include “burglary.” In Mathis
v. United States, 136 S.Ct. 2243, 2248 (2016), the Supreme Court held that the enumerated
crimes in § 924(e)(2)(B)(ii) referred only to their “generic versions – not to all variants of the
offense.” Thus, for burglary to qualify as an ACCA violent felony, the offense had to “contain
the following elements: an unlawful or unprivileged entry into … a building or other structure,
with intent to commit a crime.” Id. If a statute “swept more broadly than the generic crime,” a
conviction under that law would not support a sentencing enhancement under the ACCA.
Descamps v. United States, 133 S.Ct. 2276, 2283, reh’g denied, 134 S.Ct. 41 (2013). But, a
conviction under a statute with these elements or with a narrower version of these elements
would satisfy the definition of a generic burglary sufficient to justify sentencing enhancement
under the ACCA. Id. at 2781.
In analyzing pertinent state and federal law, Judge Vidmar properly employed the
modified categorical approach in comparing the elements of the crime of conviction with the
elements of the generic crime. PFRD at 6–10. He concluded that New Mexico residential
burglary, i.e., the unauthorized entry of a dwelling house with the intent to commit any felony or
theft therein, was substantially the same as, or narrower than, generic burglary. Id. at 10.
Marquez objects to Judge Vidmar’s finding that New Mexico residential burglary is
substantially similar to generic burglary and, therefore, qualifies as a violent felony under the
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enumerated clause of § 924(e)(2)(B). Objections at 2–12. More specifically, Marquez contends
that residential burglary under NMSA § 30-16-3(A) does not extend to the burglary of the
structures listed in the non-residential burglary subsection under NMSA § 30-16-3(B), even if
used for habitation. Id. at 2–7. Marquez maintains that all the structures listed in subsection B
can be read into subsection A by dint of the fact that New Mexico’s Uniform Jury Instruction
14-1631 defines “dwelling house” as “any structure, any part of which is customarily used as
living quarters.” Id. at 2 (emphasis added) (internal quotation marks omitted). He urges the Court
to apply New Mexico courts’ interpretations of the meaning of “other structure” under § 30-163(B) in evaluating the meaning of “dwelling house” under § 30-16-3(A).
Similar to Magistrate Judge Vidmar, this Court observes that Marquez offered no case
law to support his interpretation of § 30-16-3(A). Instead, Marquez cited only to case law
evaluating convictions under subsection B of the statute. See Objections at 2–3 citing State v.
Foulenfont, 1995-NMCA-028, ¶ 2, 119 N.M. 788 (evaluating whether a fenced-in area “comes
within the definition of ‘structure’ in Section 30-16-3(B)”).5 Marquez also relied on State v.
Office of Public Defender ex rel. Muqqddin, 2012-NMSC-029, ¶ 61, 285 P.3d 622, but in
Muqqddin, the state court was evaluating whether penetrating the gas tank of a vehicle and
removing its tires satisfied the “entry” element of burglary of a vehicle under subsection B.

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Marquez argues that the court in Foulenfont was analyzing the “all-encompassing introductory paragraph that
precedes” subsections A and B when it interpreted “other structure” to mean “an enclosure similar to a vehicle,
watercraft, aircraft, or dwelling.” Objections at 4. But, there is no question that the court in Foulenfont was tasked
with deciding if the pertinent crime “fit within the definition of burglary set forth in NMSA 1978, Section 30–16–
3(B)….” Foulenfont, 1995-NMCA-028, ¶ 2, 119 N.M. at 789. Moreover, a person cannot be convicted under the
introductory section—a person may be convicted of either residential burglary under § 30-16-3(A), a third-degree
felony, or non-residential burglary under § 30-16-3(B), a fourth-degree felony.

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Marquez has not identified any case where New Mexico state courts have applied the term “other
structure” to a conviction under subsection A of § 30-16-3.
Nor does Marquez’s reliance on New Mexico case law interpreting statutes outside of
§ 30-16-3 persuade the Court that Magistrate Judge Vidmar’s findings and recommendations
were incorrect. For example, Marquez cites two cases that evaluated convictions under
New Mexico’s separate aggravated burglary statute, § 30-16-4. Objections at 4–5 (citing State v.
Alvarez-Lopez, 2004-NMSC-030, 136 N.M. 309, and State v. Romero, 1998-NMCA-057,
125 N.M. 161). But, those decisions shed little or no light on the interpretation of the statutory
elements in § 30-16-3(A).
Marquez also argues that the New Mexico cases cited by Magistrate Judge Vidmar do not
support the Magistrate Judge’s findings and recommendations. Objections at 6–8. The Court has
reviewed the cases in question, State v. Ervin, 1981-NMCA-068, ¶¶ 1–4, 96 N.M. 366, 367,
State v. Lara, 1978-NMCA-112, ¶¶ 4–5, 92 N.M. 274, 275, and State v. Ruiz, 1980-NMCA-123,
94 N.M. 771, superseded by statute on other grounds as stated in State v. McCormack, 1984NMCA-042, ¶ 12, 101 N.M. 349, 351–352, and finds that Marquez’s objections are without
merit. Marquez’s interpretations of New Mexico case law and jury instructions fail to convince
the Court that NMSA § 30-16-3(A) “sweeps more broadly than the generic crime,” such that
Marquez’s conviction for New Mexico residential burglary would not support a sentencing
enhancement under the ACCA.
Finally, the Court has carefully considered but rejects Marquez’s additional argument
regarding the scope of generic burglary and/or that New Mexico’ residential burglary statute is
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overbroad, his position that the New Mexico residential burglary is not divisible, his objection to
the application of the modified categorical approach, and his disagreement with Magistrate Judge
Vidmar’s interpretation of United States v. Spring, 80 F.3d 1450, 1462 (10th Cir. 1996). See
Objections at 8–12. In short, Judge Vidmar did not err in relying on the Tenth Circuit’s decision
in Spring. The Magistrate Judge acknowledged the well-established rule that generic burglary
excludes the burglary of vehicles, i.e., movable structures used for transportation. PFRD at 17–
18. Magistrate Judge Vidmar explained the rule adopted by the Tenth Circuit that a vehicle used
as a habitation satisfied generic burglary, and he identified subsequent Tenth Circuit case law
affirming that principle. Id. at 18–19. Thus, Marquez’s objections as to the scope of generic
burglary are unavailing.
In sum, the Court will overrule Marquez’s objections and will adopt Judge Vidmar’s
findings and recommendations as to New Mexico residential burglary. Marquez has raised no
more than a theoretical possibility that § 30-16-3(A) could be applied to conduct outside the
generic definition of burglary; he has not shown a realistic probability that New Mexico courts
would apply this statute to conduct that falls outside the generic definition of the crime.
See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). For the reasons stated above, the

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Court concludes that New Mexico residential burglary, § 30-16-3(A), qualifies as an ACCA
violent felony under the enumerated clause of § 924(e)(2)(B).6
2. New Mexico Aggravated Assault with a Deadly Weapon
Marquez objects to Judge Vidmar’s finding that New Mexico aggravated assault with a
deadly weapon, § 30-3-2(A), qualifies as a violent felony under the force clause of
§ 924(e)(2)(B). As discussed supra, Judge Vidmar believed that the Tenth Circuit’s recent
decision in Maldonado-Palma controlled the outcome. See PFRD at 22–23. In MaldonadoPalma, the Tenth Circuit Court found that New Mexico aggravated assault, § 30-3-2(A),
qualified as a “crime of violence” under the Sentencing Guidelines’ identically worded force
clause. 839 F.3d at 1248–50.
Marquez urges that a recent decision of the New Mexico Court of Appeals, State v.
Branch, 2016-NMCA-071, 387 P.3d 250, cert. granted, __ P.3d __ (No. 35,951, 7/28/16),
undercuts the holdings of Maldonado-Palma and Ramon Silva, 608 F.3d 663, 671 (10th Cir.
2010) and thus compels a different result. Objections at 12–16. In short, Marquez argues that
according to the reasoning of Branch, aggravated assault in New Mexico does not require proof
of the defendant’s intent to assault the victim—only that the victim reasonably believed he or she
was in danger. Id. at 14–15. Because the Tenth Circuit’s analysis in Maldonado-Palma and
Ramon Silva rested on the principle that the use of physical force must be intentionally directed
6

The undersigned judge has reached this conclusion in a prior case, Turrieta v. United States, No. CIV 16-395
JAP/KK, [Doc. 10] at 6–8 (D.N.M. Oct. 28, 2016). Moreover, judges in this District have agreed that § 30-16-3(A)
qualifies as an enumerated violent felony or as a crime of violence. See, e.g., United States v. Alires, No. CR 143902 JB, [Doc. 43] at 28–36 (D.N.M. May 1, 2017); United States v. Tolentino, No. CIV 16-0583 MV/LAM,
[Doc. 16] at 11–12 (D.N.M. June 12, 2017); Sandoval v. United States, No. CIV 16-0410 LH/CG, [Doc. 16] at 7
(D.N.M. Apr. 18, 2017); United States v. Sedillo, No. CIV 16-0426 MCA/LAM, [Doc. 18] at 11–13 (D.N.M. Mar.
6, 2017).

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“toward a victim,” Marquez contends these cases are at odds with New Mexico case law
interpreting its assault statute, and thus were wrongly decided. Id. at 14. Marquez asserts that
Branch constitutes an “intervening state court opinion” that “effectively overrules” MaldonadoPalma and Ramon Silva. Id. at 15–16.
Whatever the merit of Marquez’s argument as to the substantive significance of Branch,7
this Court is bound by the Tenth Circuit’s decision in Maldonado-Palma. Branch was decided
before Maldonado-Palma; Branch does not undermine the precedential value of MaldonadoPalma.8 See United States v. Miera, 2013 WL 6504297, at *18 (D.N.M. Nov. 22, 2013)
(questioning the Tenth Circuit’s opinion in Ramon Silva but concluding that the court “is not,
however, free to disregard the majority’s conclusion that aggravated assault with a deadly
weapon in New Mexico is a violent felony” under the force clause of the ACCA).
Like Magistrate Judge Vidmar, this Court finds that the Tenth Circuit Court’s decision in
Maldonado-Palma is controlling precedent that the New Mexico offense of aggravated assault
with a deadly weapon under NMSA § 30-3-2(A) qualifies as an ACCA crime of violence under
the force clause of § 924(e)(2)(B). Therefore, the Court will overrule Marquez’s objections and
adopt Judge Vidmar’s findings and recommendations.

7

In an earlier decision, the undersigned judge considered and rejected arguments similar to Marquez’s, ruling that
Ramon Silva and Maldonado-Palma are not inconsistent with Branch. United States v. Sanchez, No. CIV 16-0659
JAP/GBW, [Doc. 20] at 22–24 (D.N.M. July 5, 2017).
8
Moreover, while the Tenth Circuit Court, in Maldonado-Palma, examined New Mexico law for guidance in
interpreting the elements of the crime, it did not discuss the New Mexico Court of Appeals’ decision in Branch.

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IT IS THEREFORE ORDERED that:
1) The United States’ request for a stay of proceedings (Doc. No. 8) is DENIED as
moot;
2) MR. MARQUEZ’S OBJECTIONS TO THE MAGISTRATE JUDGE’S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION (Doc. No. 21) are
OVERRULED;
3) the Magistrate Judge’s PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION (Doc. No. 16) are ADOPTED;
4) Defendant’s MOTION TO CORRECT SENTENCE PURSUANT TO 28 U.S.C.
§ 2255 (Doc. No. 1) is DENIED; and
5) This case will be DISMISSED, with prejudice, and a Final Judgment will be entered
concurrently with this Memorandum Opinion and Order.

____________________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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