Moya v. United States of America
Proposed Findings and Recommended Disposition by Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 3 Petitioner's Motion to Correct Sentence be DENIED as outlined in the Proposed Findings and Recommended Disposition. Objections to PF &RD due by 2/6/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (jrt)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CV 16-688 WJ/CG
CR 09-761 WJ
UNITED STATES OF AMERICA,
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner Dominic Moya’s Second or
Successive Motion to Correct Sentence Under 28 U.S.C. § 2255 (the “Motion”), (CV
Doc. 3), filed June 23, 2016; Respondent United States’ Response to Defendant’s
Second or Successive Motion to Correct Sentence Under 28 U.S.C. § 2255 (the
“Response”), (CV Doc. 11), filed December 20, 2016; and Petitioner’s Reply to United
States’ Response to Respondent’s Motion to Vacate, Set Aside, or Correct Sentence
(the “Reply”), (CV Doc. 13), filed January 11, 2017.1 United States District Judge
William P. Johnson referred this case to Magistrate Judge Carmen E. Garza to perform
legal analysis and recommend an ultimate disposition. (CV Doc. 4). After considering
the parties’ filings and the relevant law, the Court RECOMMENDS that Petitioner’s
Motion be DENIED.
On January 11, 2010, Petitioner pled guilty to Possession with Intent to Distribute
Five Grams or More of Cocaine Base, in violation of 21 U.S.C. §§ 841(a)(1) and
Documents referenced as “CV Doc.__” are from case number 16-cv-688-WJ-CG. Documents
referenced as “CR Doc.__” are from case number 09-cv-761-WJ.
(b)(1)(B). (CV Doc. 11 at 1). Because Petitioner was found to be a career offender, his
Guideline range was 188-235 months. (CV Doc. 3 at 3). Without the career offender
enhancement, his Guideline range would have been 92-115 months. (CV Doc. 3 at 3-4).
Petitioner was ultimately sentenced to 180 months imprisonment pursuant to a plea
agreement. (CV Doc. 11 at 2).
According to his presentence report (“PSR”), Petitioner qualified as a career
offender because he had “at least two prior felony convictions of . . . a crime of
violence.” United States Sentencing Guidelines (“U.S.S.G” or “Guidelines”) Section
4B1.1 (2010); (CR Doc. 71 at 4-5). When Petitioner was sentenced, “crime of violence”
included any crime that “is burglary of a dwelling . . . or otherwise involves conduct that
presents a serious risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (2010). The
italicized portion of the definition is known as the residual clause. See U.S. v. Madrid,
805 F.3d 1204, 1210 (10th Cir. 2015). In Petitioner’s case, the PSR determined that
Petitioner’s convictions for residential burglary in New Mexico qualified as crimes of
violence. (CV Doc. 11 at 14). In particular, Petitioner was convicted of “enter[ing] a
dwelling house with intent to commit any felony or theft therein.” N.M. STAT. ANN. § 3016-3(A) (West 2016).
Petitioner now challenges his sentence following the Supreme Court of the
United States’ decision in Johnson v. United States, 135 S. Ct. 2551 (2015). First,
Petitioner argues that “residential burglary” in New Mexico is not the same as “burglary
of a dwelling” under the Guidelines because New Mexico defines “dwelling” more
expansively than “dwelling” in the Guidelines. (CV Doc. 3 at 2, 10). Petitioner claims his
convictions for “residential burglary” are only crimes of violence under the residual
clause. In Johnson, the Supreme Court held that the residual clause in the Armed
Career Criminal Act (“ACCA”) was unconstitutionally vague. 135 S. Ct. at 2557.
Petitioner maintains that, following Johnson, the Guidelines’ residual clause is also void
for vagueness; therefore, he argues, he is entitled to be resentenced. (CV Doc. 3 at 2).
Respondent counters that Johnson applies only to the ACCA and does not affect
the Guidelines. (CV Doc. 11 at 3-4). Further, even if Johnson does apply to the
Guidelines, Respondent argues that Johnson only applies prospectively on direct
appeal–not retroactively on collateral review, such as in this case. (CV Doc. 11 at 4-11).
Finally, Respondent maintains that “residential burglary” is substantially the same as
“burglary of a dwelling;” so, even if Johnson applies to the Guidelines, Petitioner is still
ineligible for relief because he was not deemed a career offender in reliance on the
residual clause. (CV Doc. 11 at 11-15).
Thus, the issues before the Court are (1) whether “residential burglary” in New
Mexico meets the generic definition of the enumerated offense of “burglary of a
dwelling” or is only a crime of violence under the residual clause; (2) if residential
burglary is only a crime of violence under the residual clause, whether Johnson applies
to the Guidelines; and (3) if Johnson applies to the Guidelines, whether it applies
retroactively on collateral review.
a. Standard of Review under 28 U.S.C. § 2255
28 U.S.C. § 2255 provides that federal prisoners may challenge their sentences
if: (1) their sentence was imposed in violation of the United States Constitution or
federal law; (2) the sentencing court had no jurisdiction to impose the sentence; (3) the
sentence exceeded the maximum authorized sentence; or (4) the sentence is otherwise
subject to collateral review. § 2255(a). If the court finds that a sentence infringed upon
the prisoner’s constitutional rights and is subject to collateral review, the court must
vacate the sentence and discharge, resentence, or correct the sentence as the court
believes appropriate. § 2255(b).
b. Method of Analysis
“The definition and scope of the enumerated offenses are questions of federal
law.” U.S. v. Rivera-Oros, 590 F.3d 1123, 1126 (10th Cir. 2009). The enumerated
offenses, including “burglary of a dwelling,” are “defined by their ‘generic, contemporary
meaning.’” Id. (quoting Taylor v. U.S., 495 U.S. 575, 598 (1990)). Courts look to “a wide
range of sources to determine the generic meaning of an enumerated offense, including
federal and state statutes, the Model Penal Code, dictionaries, and treatises.” RiveraOros, 590 F.3d at 1126-27 (citing Taylor, 495 U.S. at 598).
In order to determine whether a conviction meets the generic definition of an
enumerated offense, courts ordinarily apply “a formal categorical approach, looking only
to the statutory definitions of the prior offenses, and not to the particular facts underlying
those convictions.” Taylor, 495 U.S. at 600. The statutory definition “does not need to
match the generic definition verbatim.” Rivera-Oros, 590 F.3d at 1132. Rather, “[i]f the
statutory definition of the prior conviction ‘substantially corresponds to generic burglary
[of a dwelling],’ our inquiry is at an end.” U.S. v. Ramon Silva, 608 F.3d 663, 665 (10th
Cir. 2010) (quoting Taylor, 495 U.S. at 602). “If the statutory definition . . . proscribes a
range of conduct” beyond the generic definition, courts “employ a modified-categorical
approach that ‘goes beyond the mere fact of conviction’ and determines whether ‘the
charging paper and jury instructions” required finding the elements of the generic
definition. Id. (quoting Taylor, 495 U.S. at 602).
c. Whether New Mexico’s definition of “dwelling” substantially corresponds with the
generic definition of “dwelling”
The first issue before the Court is whether “dwelling” in section 30-16-3(A)
“substantially corresponds” with the definition of “dwelling” in the Guidelines section
4B1.2(a)(2). Petitioner argues the definitions do not substantially correspond because
“dwelling,” as interpreted by New Mexico courts, includes areas that are not used or
intended for use as human habitation; for example, a garage that is not internally
connected to a home. (CV Doc. 11 at 10) (citing State v. Ervin, 1981-NCMA-068, 630
P.2d 765 (N.M. Ct. App. 1981)). Petitioner asserts this definition conflicts with the
generic definition of “dwelling,” which includes only those areas actually used or
intended for use as human habitation. (CV Doc. 11 at 10). Respondent replies that New
Mexico defines “dwelling” as “any structure, any part of which is customarily used as
living quarters,” and that comports with the generic definition of “dwelling.” (CV Doc. 11
at 14) (citing State v. Lara, 1978-NMCA-112, 587 P.2d 52, 53 (N.M. Ct. App. 1978)).
In Rivera-Oros, the Tenth Circuit Court of Appeals exhaustively discussed the
generic definition of “burglary of a dwelling.” 590 F.3d at 1128-1133. The discrete
question before the court was whether a “dwelling” includes only permanent, immovable
structures. Id. at 1129. After considering circuit precedent, out-of-circuit decisions,
treatises, and Black’s Law Dictionary, the Tenth Circuit stated that “‘burglary of a
dwelling’ is not limited to permanent and immovable structures or buildings. Rather, a
‘dwelling’ includes any ‘enclosed space that is used or intended for use as a human
habitation.’” Id. at 1132 (quoting dwelling-house, BLACK’S LAW DICTIONARY (9th ed.
The Tenth Circuit then held that Arizona’s definition of “residential structure” met
the generic, contemporary definition of “dwelling.” Rivera-Oros, 590 F.3d at 1134.
Arizona’s definition of “residential structure” includes an attached but not internally
connected storage space. State v. Ekmanis, 901 P.2d 1210 (Ariz. 1995). In Ekmanis,
the Arizona Supreme Court held that “residential structure” included a storage room
under the same roof as a residence even though the storage room was not internally
connected to the residence. Id. at . In Rivera-Oros, the Tenth Circuit cited Ekmanis with
approval. 590 F.3d at 1134.
Other sources accord with this definition. Black’s Law Dictionary, for example,
defines “dwelling-house” as a “building, a part of a building . . . or another enclosed
space that is used or intended for use as a human habitation.” Dwelling-house, BLACK’S
LAW DICTIONARY (10th ed. 2014) (emphasis added). Further, several other state courts
have defined “dwelling” in residential burglary statutes to include a room or area
attached to a home even if the area is not internally connected to the home. See People
v. Debouver, 205 Cal. Rptr. 3d 318 (Cal. Ct. App. 2016) (holding underground garage
was a part of dwelling because they shared the same roof); State v. Taylor, 350 P.3d
525, 526 (Or. Ct. App. 2015) (holding that breezeway with no internal connection to a
home was still part of the dwelling); State v. Moran, 324 P.3d 808 (Wash. Ct. App.
2014) (holding utility space below home was part of the “dwelling,” notwithstanding lack
of access to interior of home); State v. Bryant, 775 So. 2d 596, 602 (La. Ct. App. 2000)
(holding “carport storage room” was part of the home although it had no direct entrance
to the home); Burgett v. State, 161 Ind. App. 157, 314 N.E.2d 799 (Ind. Ct. App. 1974)
(holding basement with an exterior entrance only was part of dwelling); People v.
Jimenez, 651 P.2d 395 (Colo. 1982) (en banc) (holding attached garage part of a
dwelling because “dwelling comprehends an entire building”).
In this case, Petitioner was convicted of violating section 30-16-3(A), which
prohibits “enter[ing] a dwelling house with intent to commit any felony or theft therein.”
New Mexico criminal jury instructions define “dwelling” as “any structure, any part of
which is customarily used as living quarters.” UJI 14-1631 NMRA; Ervin, 630 P.2d at
766. “Dwelling” does not include a detached, non-contiguous garage. State v. Ross,
1983-NMCA-065, ¶ 11, 665 P.2d 310, 313 (N.M. Ct. App. 1983) (holding detached
garage was “not a part of the dwelling house proper”). It does, however, include a
garage that is attached but not internally connected to a home. Lara, 587 P.2d at 53. In
Lara, the New Mexico Court of Appeals held that a garage was part of a “dwelling” even
though the garage only shared a wall with the home and did not contain a door into the
Petitioner cites Lara for the proposition that New Mexico’s definition of “dwelling”
exceeds the contemporary, generic definition of “dwelling.” (CV Doc. 13 at 14-15).
However, Lara’s holding comports with the Tenth Circuit’s holding in Rivera-Oros and
several state courts that have held the same. The Tenth Circuit cited Arizona’s holding
in Ekmanis with approval, indicating the Tenth Circuit includes attached rooms within
the definition of “dwelling.” Further, several other state courts have held that “dwelling”
includes attached areas, like garages, even if they are not internally connected to a
home. Finally, Lara does not conflict with Black’s Law Dictionary’s definition, which
includes “a part of a building” that is otherwise used for human habitation. Given the
similarity between New Mexico’s definition of “dwelling” and other contemporary
sources’ definitions, New Mexico’s definition substantially corresponds with the generic,
contemporary definition of “dwelling.”
Because New Mexico’s definition of “dwelling” substantially corresponds with the
generic definition of “dwelling,” the Court does not need to look “beyond the statutory
definition” to determine whether Petitioner was convicted of generic “burglary of a
dwelling.” Ramon Silva, 608 F.3d at 665. Petitioner’s convictions for “residential
burglary” in New Mexico substantially correspond with “burglary of a dwelling,” an
enumerated crime of violence in section 4B1.2(a)(2). Thus, Petitioner was deemed a
career offender for having committed an enumerated offense–not in reliance on the
residual clause. Even if Petitioner prevails in his other arguments, he is still ineligible for
relief under §2255 because he has not shown how his sentence infringed on his
For the foregoing reasons, the Court finds that Petitioner was deemed a career
offender for having been convicted of enumerated crimes of violence, namely “burglary
of a dwelling.” Petitioner’s sentence was not calculated in reliance on the residual
IT IS THEREFORE RECOMMENDED that Petitioner’s Second or Successive
Motion to Correct Sentence Under 28 U.S.C. § 2255, (CV Doc. 3), be DENIED.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition they
may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. §
636(b)(1). A party must file any objections with the Clerk of the District Court
within the fourteen-day period if that party wants to have appellate review of the
proposed findings and recommended disposition. If no objections are filed, no
appellate review will be allowed.
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?