Tolentino . United States of America

Filing 16

ORDER ADOPTING 12 REPORT AND RECOMMENDATIONS by District Judge Martha Vazquez OVERRULING 13 Objections filed by Lawrence Paul Tolentino; and DENYING 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Lawrence Paul Tolentino. IT IS THEREFORE ORDERED, for the reasons stated above, that: 1. Defendant's objections to the PF&RD [Doc. 13 ] are OVERRULED; 2. The Proposed Findings and Recommended Disposition (Doc. 12 ) are ADOPTED; 3. Defendant's 2255 motion (Doc. 1 ) is DENIED; and 4. This case shall be DISMISSED with prejudice, and a final judgment will be entered concurrently with this order. IT IS SO ORDERED. (gr)

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

v.

No. CV 16-0583 MV/LAM
CR-06-0842 MV

LAWRENCE PAUL TOLENTINO,
Defendant/Movant.

ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Magistrate Judge Lourdes A. Martínez’ Proposed
Findings and Recommended Disposition (Doc. 12)

1

(hereinafter “PF&RD”), filed on

February 17, 2017, which recommended denying Defendant/Movant’s (hereinafter “Defendant”)
§ 2255 motion [Doc. 1], filed on June 15, 2016. Defendant filed objections to the PF&RD
[Doc. 13] on March 1, 2017. The Government did not respond to Defendant’s objections and the
time for doing so has passed. The Court has conducted a de novo review of those portions of the
PF&RD to which Defendant objects and finds that the objections are without merit. Accordingly,
the Court will: (1) overrule the Defendant’s objections as meritless; (2) adopt the PF&RD;
(3) deny Defendant’s § 2255 motion; and (4) enter a final judgment dismissing this case with
prejudice.
1

Hereinafter, all documents from Case No. CIV-16-0583 cited in this decision will be designated as “Doc.”
followed by their docket number, and all documents from Case No. CR-06-842 cited in this decision will be
designated as “Cr.Doc.”

Background
As explained in the PF&RD, Defendant pled guilty in 2006 to being a felon in possession
of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). See [Doc. 12 at 2] (citing
Cr.Doc. 16 and Cr.Doc. 1). The parties state that Defendant was subject to an enhanced sentence
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), which mandates a minimum
sentence of 180 months (15 years), based on two prior convictions for residential burglary and one
prior conviction for possession with intent to distribute cocaine. See [Doc. 1 at 3] and [Doc. 7
at 2]. Defendant also states that his base offense level under the Sentencing Guidelines was 24
and was based, in part, on his prior convictions for residential burglary. See [Doc. 1 at 2-3]. On
December 12, 2006, the presiding judge imposed a 180-month sentence, with 3 years of
supervised release. See [Cr.Doc. 21 at 2-3].
In his § 2255 motion, Defendant contends that, pursuant to the holding of Johnson v.
United States, 135 S. Ct. 2551 (2015), his prior convictions for residential burglary no longer
qualify as convictions for crimes of violence for purposes of the ACCA or the Sentencing
Guidelines, and, therefore, cannot be used to enhance his sentence. [Doc. 1 at 6]. As explained
in the PF&RD (see Doc. 12 at 3), in Johnson, the Supreme Court held that the residual clause of the
ACCA is unconstitutionally vague. 135 S. Ct. 2551, 2563 (2015). The Magistrate Judge noted
that “[t]he Government does not appear to dispute Defendant’s contentions that his burglary
convictions do not fall under the force clause of the ACCA (§ 924(e)(2)(B)(i)), or that they no
longer qualify under the residual clause pursuant to the holding in Johnson.” [Doc. 12 at 5, n.4].
The Magistrate Judge further noted that neither party briefed the issue of whether Defendant’s
residential burglary convictions qualify as convictions for crimes of violence under the Sentencing

2

Guidelines. Id. at 5-6, n.4. Therefore, the Magistrate Judge considered whether Defendant’s
residential burglary convictions fall under the ACCA’s enumerated clause. Id.
The Magistrate Judge explained that, in order to determine whether a past conviction
qualifies as one of the ACCA’s enumerated offenses, “courts compare the elements of the crime of
conviction with the elements of the federal, generic version of the listed offense.” Id. at 5-6
(citing Mathis v. United States, 136 S.Ct. 2243, 2248 (2016)). The Magistrate Judge further
explained:
A prior conviction qualifies as an ACCA-predicate offense
‘if its elements are the same as, or narrower than, those of the
generic offense.’ Mathis, 136 S.Ct. at 2248. However, ‘if the
crime of conviction covers any more conduct than the generic
offense, then it is not an ACCA “burglary” -- even if the defendant’s
actual conduct (i.e., the facts of the crime) fits within the generic
offense’s boundaries.’ Id. The federal, generic definition of
burglary is ‘an unlawful or unprivileged entry into, or remaining in,
a building or structure, with intent to commit a crime.’ Taylor v.
United States, 495 U.S. 575, 599 (1990). Thus, when a burglary
statute is broader than the generic definition, then the statute may
not be used as an ACCA-qualifying predicate offense under the
enumerated clause. See, e.g., Descamps v. United States, 133
S.Ct. 2276, 2282-83 (2013) (finding that California’s burglary
statute, which provides that a ‘person who enters’ certain locations
‘with intent to commit grand or petit larceny or any felony is guilty
of burglary,’ is broader than federal generic burglary because it
criminalizes entering a location, even lawfully, with the intent to
steal, whereas generic burglary requires an unlawful or unprivileged
entry).
When a statute has a ‘divisible’ structure, whereby it lists
elements in the alternative and defines multiple crimes, a court must
discern which of the alternative elements listed was necessary for the
defendant’s conviction. See Mathis, 136 S.Ct. at 2249. To do so,
courts use a ‘modified categorical approach,’ under which a 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 (citations omitted). ‘The court can then compare
that crime, as the categorical approach commands, with the relevant
generic offense.’ Id. When faced with an ‘alternatively phrased’
statute which ‘enumerates various factual means of committing a

3

single element’ (id.), a court must ‘determine whether [the statute’s]
listed items are elements or means’ (id. at 2256). ‘If they are
elements, the court should . . . review the record materials to discover
which of the enumerated alternatives played a part in the defendant’s
prior conviction, and then compare that element (along with all others)
to those of the generic crime.’ Id. (citation omitted). However, if the
listed items ‘are means [of committing a single element], the court has
no call to decide which of the statutory alternatives was at issue in the
earlier prosecution,’ and ‘[g]iven ACCA’s indifference to how a
defendant actually committed a prior offense, the court may ask only
whether the elements of the state crime and generic offense make the
requisite match.’ Id.
To determine whether a statute lists elements or means, a court
should look to see if state court decisions are of assistance, as the
Supreme Court did in Mathis when it looked to an Iowa Supreme Court
decision regarding Iowa’s burglary law, which held that the various
premises listed in the burglary statute at issue were ‘alternative
methods of committing one offense, so that a jury need not agree
whether the burgled location was a building, other structure, or
vehicle.’ Id. (citing State of Iowa v. Duncan, 312 N.W.2d 519, 523
(Iowa 1981) (internal quotation marks and brackets omitted). The
Supreme Court stated that ‘[w]hen a ruling of that kind exists, a
sentencing judge need only follow what it says.’ Id. (citation
omitted). In addition, the Supreme Court instructs that ‘the statute on
its face may resolve the issue,’ and that ‘[i]f statutory alternatives carry
different punishments, then . . . they must be elements,’ but ‘if a
statutory list is drafted to offer illustrative examples, then it includes
only a crime’s means of commission.’ Id. (citations and internal
quotations marks omitted). Finally, if state law fails to provide clear
answers, the Supreme Court states that the court may ‘peek’ at the
record of a prior conviction itself for ‘the sole and limited purpose’ of
determining whether the listed items are means or elements. Id.
at 2256-57 (citation and internal quotation marks omitted).
The burglary statute at issue in this case 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

4

or immovable, with intent to commit any felony or
theft therein is guilty of a fourth degree felony.
N.M.S.A. 1978 § 30-16-3.
[Doc. 12 at 6-8].
Relying on Mathis, 136 S.Ct. at 2256 (“[t]he first task for a sentencing court faced with an
alternatively phrased statute is thus to determine whether its listed items are elements or means”
(emphasis added)), the Magistrate Judge rejected Defendant’s contention that the Court must first
analyze whether the entire burglary statute is broader than the federal, generic definition, instead of
whether the statute is divisible. See id. at 8 (citing Doc. 11 at 1). The Magistrate Judge then found
that the alternative elements in this statute are separated into subsections A and B, wherein subsection
A is burglary of a “dwelling house,” a third degree felony, and subsection B is non-residential (or
commercial) burglary, a fourth degree felony. Id. at 9. Since both Defendant and the Government
agreed that Defendant’s burglary convictions were for residential burglary (see Doc. 1 at 3, and
Doc. 7-1 at 1 and 7), the Magistrate Judge defined the issue as “whether subsection A of New Mexico’s
burglary statute is broader than the federal, generic definition of burglary” (see Doc. 12 at 9).

Next, the Magistrate Judge considered Defendant’s contention that the statute under which
he was convicted is broader than the federal, generic definition because New Mexico defines the
term “dwelling house” to include vehicles, watercrafts, and aircrafts, whether movable or
immovable.

See id. (citing Doc. 1 at 7-8).

The Magistrate Judge described Defendant’s

interpretation of the residential burglary provision as “encompass[ing] burglary of any and all
structures listed in § 30-16-3,” regardless of the division between subsections A and B (id. at 10),
then rejected it as both “defy[ing] a plain-text reading of the statute, and disregard[ing]” the Mathis
“threshold inquiry” of divisibility. Id. The Magistrate Judge rejected “Defendant’s invitation to
read subsection A [of the statute] as encompassing burglary of a vehicle, watercraft, aircraft, or
other structure, because that would render subsection B superfluous.”
5

Id.

Instead, the

Magistrate Judge found that “Mathis provides that the Court may not analyze a statute globally
when the statute, like the New Mexico burglary statute here, is divisible.” Id. Noting that
New Mexico’s uniform criminal jury instructions define “dwelling” as “any structure, any part of
which is customarily used as living quarters” (N.M. UJI 14-1631, N.M.R.A.) (id.), the
Magistrate Judge relied on the statement in State v. Ruiz, 1980-NMCA-123, 94 N.M. 771,
617 P.2d 160 that “[t]he offense charged was burglary of a dwelling house [subsection A]; thus,
we are not concerned with vehicles, watercraft or aircraft, or other structures [subsection B]” (id.
at ¶ 39), as supportive of the divisibility of the subsections of § 30-16-3. Id. at 10-11.
The Magistrate Judge also rejected as unpersuasive Defendant’s reliance on State v. Anaya,
No. 34,279, 2015 WL 2092804 (N.M. May 4, 2015) (unpublished) and State v. Daugherty,
No. 32,829, 2013 WL 4105525 (N.M. Aug. 1, 2013) (unpublished), on the ground that both of
those cases involve the statute for aggravated burglary under N.M.S.A. § 30-16-4, 1978, rather
than residential burglary under § 30-16-3(A).

Id. at 11.

Aggravated burglary is “the

unauthorized entry of any vehicle watercraft, aircraft, dwelling or other structure, movable or
immovable, with intent to commit any felony or theft therein and the person either” is armed, arms
himself after entering, or commits a battery upon a person while in such place, or in entering or
leaving. N.M.S.A. § 30-16-4, 1978. The Magistrate Judge explained that, unlike § 30-16-3, the
aggravated burglary statute is not split into subsections and, therefore, the New Mexico Supreme
Court was not faced in either Anaya or Daugherty with determining whether the burglarized
mobile home and trailer constituted “dwelling houses,” as is required by the residential burglary
statute. See [Doc. 12 at 11-12]. The Magistrate Judge, therefore, found that those cases do not
support Defendant’s claim that New Mexico’s residential burglary statute necessarily
encompasses mobile homes or trailers. Id. at 12.

6

Alternatively, the Magistrate Judge noted that, even if New Mexico’s residential burglary
statute (§ 30-16-3(A)) does include mobile homes, trailers, or similar structures used as habitations
within the term “dwelling house,” the result would be the same because “federal, generic burglary
also encompasses these types of structures.” Id. The Magistrate Judge explained that “[f]ederal,
generic burglary excludes the burglary of ‘vehicles,’ that is, movable structures used for
transportation.” Id. (relying on Shepard v. United States, 544 U.S. 13, 16 (2005), which states
that generic burglary is limited to burglaries “committed in a building or enclosed space . . . , not in
a boat or motor vehicle”), and Mathis, 136 S. Ct. at 2250 (finding that an Iowa statute was
overbroad where it reached “any building, structure, [or] land, water, or air vehicle”)). However,
the Magistrate Judge further explained that “this does not mean that federal, generic burglary
cannot encompass the burglary of any movable structure when such structure is used as a
habitation.” See id. The Magistrate Judge relied on United States v. Spring, 80 F.3d 1450, 1462
(10th Cir. 1996), in which the Tenth Circuit considered whether a Texas statute prohibiting
burglary of a “habitation,” defined as “a structure or vehicle that is adapted for the overnight
accommodation of persons,” is broader than the federal, generic elements of burglary, as defined
in Taylor. Id. The Magistrate Judge explained:
The Tenth Circuit held that ‘the statutory elements of burglary of a
habitation under Texas law substantially correspond to the generic
elements of burglary contained in Taylor,’ explaining that ‘the
Texas Code definition of habitation does not include vehicles in the
sense in which Taylor intended’ and, instead, includes ‘[o]nly
vehicles which are adapted for the overnight accommodation of
persons.’ . . . In reaching this conclusion, the Tenth Circuit noted
that ‘[t]he burglary of a mobile home or ‘vehicle adapted for the
overnight accommodation of persons’ is not analogous to the theft
of an automobile or to the other property crimes whose relative lack
of severity the Taylor Court (and presumably, Congress) meant to
exclude from its generic definition.’ Therefore, the Tenth Circuit
found that the burglary of a mobile home or similar structure is more
like the burglary of a home than a vehicle, and even stated that

7

burglary of a mobile home or camper ‘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 Spring, 80 F.3d at 1462, citation and internal quotation marks omitted). Similarly,
the Magistrate Judge explained that in United States v. Ramon Silva, 608 F.3d 663, 668
(10th Cir. 2010) the Tenth Circuit found that “the generic definition [of burglary] broadly construes
the possible settings for burglary,” and is not restricted to “permanent” spaces “designed for
human habitation or business.” [Doc. 12 at 13] (citations and internal quotation marks omitted).
For all of these reasons, the Magistrate Judge found that § 30-16-3 is divisible into
subsections A (residential burglary) and B (non-residential burglary), and that subsection A is not
broader than the federal, generic definition of burglary, meaning that Defendant’s convictions for
residential burglary fall under the enumerated clause of the ACCA, and Defendant was properly
sentenced. See id. at 14.
Defendant’s Objections
Defendant first objects to the Magistrate Judge’s finding that New Mexico’s residential
burglary provision meets the definition of federal, generic burglary, as that is defined in Taylor and
Mathis, asserting that State v. Romero, 1998-NMCA-057, 125 N.M. 161, 958 P.2d 119
demonstrates that under New Mexico law a “dwelling house” can be a moveable structure,
including a vehicle, trailer, watercraft, or aircraft, and that the statement in Ruiz, to the effect that
trespass would not be a lesser included offense of a burglary of “a vehicle, watercraft or aircraft,”
is incorrect. [Doc. 13 at 3-4]. Relying heavily on the term “structure” in New Mexico’s jury
instruction definition of “dwelling house,” 2 Defendant contends that “[w]hat distinguishes a

2

N.M.R.A. Crim. UJI 14-1631 defines “dwelling house” as “any structure, any part of which is customarily
used as living quarters.”

8

‘dwelling house’ from other places that can be burglarized is simply whether ‘any part of [the
structure] is customarily used as living quarters.” Id. at 4 (quoting N.M.R.A. Crim. UJI 14-1631
(2016), bracketed content added by Defendant). Although he concedes that “structure” is not
separately defined, Defendant suggests that both the burglary statute and case law “demonstrate
that ‘a structure,’ and thus ‘a dwelling house,’ can include movable vehicles.” Id. at 5.
The Court finds that this objection should be overruled. The Court rejects Defendant’s
reliance on Romero for the same reasons the Magistrate Judge rejected his reliance on Anaya and
Daugherty -- that is, because the statute at issue in these cases is New Mexico aggravated burglary,
not New Mexico residential burglary.

See [Doc. 12 at 11-12].

As explained by the

Magistrate Judge, New Mexico’s aggravated burglary statute is not split into subsections, and,
thus, state court decisions considering this statute do not support a finding that New Mexico’s
residential burglary statute necessarily encompasses mobile homes or trailers.

See id.

In

addition, the Court agrees with the Magistrate Judge that the remaining cases upon which
Defendant relies for this objection are not applicable to residential burglary under § 30-16-3(A).
Rather, those cases either discussed § 30-16-3 before it was divided into subsections (see State v.
Hudson, 1967-NMSC-164, 78 N.M. 228, 430 P.2d 386 (1967)),3 considered only whether a fence
is a “structure” under § 30-16-3(B) (State v. Foulenfont, 1995-NMCA-028, 119 N.M. 788, 895
P.2d 1329), or determined what constitutes “entry” of a vehicle under § 30-16-3 (New Mexico v.
Office of the Public Defender ex rel. Muqqddin, 2012-NMSC-029, __ N.M. __, 285 P.3d 622).
See [Doc. 12 at 10-11]. What these cases did not consider is whether a “dwelling house” under
§ 30-16-3(A) may be a vehicle, watercraft, aircraft, or movable structure. Finally, the Court
agrees with the Magistrate Judge that Defendant’s interpretation of subsection (A) as
3

See Committee Commentary to UJI 14-631, noting that “[u]nder a case decided prior to the division of
burglary into third and fourth degree felonies, the supreme court upheld the conviction of a charge of burglary of a
dwelling house where the victim slept on a cot in his drugstore” (citing Hudson).

9

encompassing burglary of any and all residential “structures,” in which he includes vehicles,
watercraft, and aircraft, would render subsection (B) of the statute superfluous, and strains the
plain meaning of the residential burglary portion of the statute. See [Doc. 12 at 10]. As
explained in the PF&RD, Mathis does not allow the Court to analyze a statute globally when the
statute, as the New Mexico burglary statute here, is divisible. See id. at 8 and 10 (relying on
Mathis, 136 S.Ct. at 2256, which states that “[t]he first task for a sentencing court faced with an
alternatively phrased statute is thus to determine whether its listed items are elements or means”).
For these reasons, the Court finds that Defendant’s objection is without merit, and shall be
overruled.
Defendant’s next objection is to the PF&RD’s alternative finding that federal, generic
burglary appears to apply to mobile homes, trailers, or similar structures used as habitations. See
[Doc. 13 at 8-12]. Defendant contends that the Magistrate Judge incorrectly relied on United
States v. Spring, 80 F.3d 1450 (10th Cir. 1996) and United States v. Ramon Silva, 608 F.3d 663
(10th Cir. 2010) for this finding, because Defendant contends that the Supreme Court in Mathis
“has since unequivocally emphasized that the proper analysis is not whether a particular offense
‘substantially corresponds’ to the generic offense but rather, ‘whether the elements of the crime of
conviction sufficiently match the elements of generic burglary, while ignoring the particular facts
of the case.’” Id. at 9 (quoting Mathis, 136 S.Ct. at 2248, emphasis added by Defendant). The
Court finds that, in making this objection, Defendant conflates semantics with holdings. In
Mathis, the Court simply used the term “sufficiently match” in describing what was already known
as the “categorical approach,” without in any way suggesting that those particular words were
different from, or were intended to replace, similar phrases such as “substantially corresponds,”
“essentially the same,” or any other combination of words that effectively convey the same

10

meaning. Additionally, the Supreme Court in Mathis did not indicate any intent to revise prior
law. Instead, it notes that “[f]or more than 25 years, our decisions have held that the prior crime
qualifies as an ACCA predicate, if, but only if, its elements are the same as, or narrower than, those
of the [federal] generic offense.”

136 S.Ct. at 2247.

The Court then describes the issue

presented to it in that case as “whether ACCA makes an exception to that rule when a defendant is
convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its
elements.” Id. at 2248. As already discussed, since the New Mexico burglary statute is divisible
into residential and non-residential elements, only the residential burglary elements are compared
to the federal, generic burglary elements in this case. Therefore, the Court agrees with the
Magistrate Judge that, “since mobile homes, trailers, and similar structures used for habitation
appear to satisfy the federal, generic definition of burglary’s locational element, the Court rejects
Defendant’s contention that New Mexico cases finding that residential burglary includes these
structures as well renders New Mexico’s residential burglary statute broader than the federal,
generic definition.” [Doc. 12 at 13]. The Iowa burglary statute at issue in Mathis was rejected
because it applied, without division, to “any building, structure, [or] land, water, or air vehicle,”
(Iowa Code § 702.12 (2013)), which the parties all agreed “cover[ed] more conduct than [federal]
generic burglary.” Mathis, 136 S.Ct. at 2250. However, the PF&RD in this case does not
suggest that federal, generic burglary includes vehicles which are primarily used for transportation
(such as the ones listed in the Iowa statute and subsection B of § 30-16-3), nor does Mathis hold
that structures which are primarily residential (such as mobile homes or trailers), are excluded
from generic burglary. For all of these reasons, the Court finds this objection to be without merit.
For the reasons stated above, the Court will overrule Defendant’s objections and will adopt
the findings in the PF&RD. Because the Court finds that subsection A of § 30-16-3 is not broader

11

than the federal, generic definition of burglary, Defendant’s residential burglary convictions fall
under the enumerated clause of the ACCA, and Defendant was properly sentenced.
IT IS THEREFORE ORDERED, for the reasons stated above, that:
1. Defendant’s objections to the PF&RD [Doc. 13] are OVERRULED;
2. The Proposed Findings and Recommended Disposition (Doc. 12) are ADOPTED;
3. Defendant’s § 2255 motion (Doc. 1) is DENIED; and
4. This case shall be DISMISSED with prejudice, and a final judgment will be entered
concurrently with this order.
IT IS SO ORDERED.
__________________________________________
THE HONORABLE MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE

12