Arrieta v. United States of America
REPORT AND RECOMMENDATIONS by Magistrate Judge Gregory B. Wormuth re 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Daniel Arrieta. Objections to R&R due by 2/21/2017. Add 3 days to the deadli ne 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).) (twr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CV 16‐644‐RB‐GBW
UNITED STATES OF AMERICA,
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
This matter is before me on Petitioner’s Motion to Vacate and Correct Sentence
Pursuant to 28 U.S.C. § 2255 (doc. 1).1 Having reviewed the briefing (docs. 9, 10) and
being fully advised, I recommend Petitioner’s Motion be denied.
On December 5, 2013, Petitioner pleaded guilty to one count of conspiracy to
distribute a mixture and substance containing a detectable amount of heroin. See cr. doc.
29. Petitioner was determined to be a “career offender” under U.S.S.G. § 4B1.1(a) which
requires inter alia a person to have two prior convictions for felony “crime[s] of
violence” as defined in U.S.S.G. § 4B1.2(a).2 His potentially qualifying convictions
included two 1995 New Mexico convictions for nonresidential burglary, PSR ¶¶ 25, 26;
Citations to “doc.” refer to docket numbers filed in Case No. 16‐CV‐644‐RB‐GBW. Citations to “cr. doc.”
refer to the attendant criminal docket, Case No. 13‐CR‐2718‐RB. For filings made on both dockets, only
the civil docket number is given.
2 This provision was amended on August 1, 2016. The amendment deleted the residual clause discussed
herein from the definition of “crime of violence.” The remainder of the definition remained the same.
Because it is the relevant provision, references and citations to U.S.S.G. § 4B1.2(a)(2) refer to the pre‐2016
three 1995 New Mexico convictions for residential burglary, PSR ¶¶ 27, 28, 29; a 2003
New Mexico conviction for residential burglary, PSR ¶ 31; and a 2008 New Mexico
conviction for breaking and entering, PSR ¶ 34. He was in criminal history category VI
without the career offender adjustment, so his criminal history category was
unchanged. PSR ¶ 38. Petitioner’s final advisory guideline range, at offense level 29
and criminal history category VI, was 151‐188 months. PSR ¶ 67. The Court varied
downward and sentenced him to 120 months imprisonment. Doc. 41. The Judgment
was filed on December 10, 2014. Id. Without the career offender adjustment, his total
offense level would have been 12 and his criminal history category VI, resulting in a
guideline range of 30‐37 months.
Petitioner’s Motion argues that his myriad burglary convictions are no longer a
“crimes of violence” in light of United States v. Johnson, 135 S. Ct. 2551 (2015). Doc. 1 at
4‐10. He contends that the Johnson decision should be applied retroactively to require
his resentencing without application of the career offender guideline. See doc. 10 at 1‐12.
The United States argues that (i) the Johnson should not be applied retroactively to the
sentencing guidelines, and (ii) Petitioner’s residential burglary convictions would
remain “crimes of violence” even assuming Johnson’s retroactive effect. See doc. 9 at 4‐
22. The presiding judge in this case has ruled decisively on both matters of law.
On the issue of retroactivity, this Court has held that “Johnson announced a new,
substantive rule that should apply retroactively to the residual clause of the Sentencing
Guidelines[.]” See United States v. Martinez, No. CR 13‐1476 RB, No. CV 16‐449 RB/LAM
at 14 (Dec. 2, 2016) (Brack, J.) (unpublished). Because the material facts, law and
arguments match those found in Martinez, I recommend following the earlier holding.3
Turning to the nature of Petitioner’s prior burglary convictions, they are based
upon violations of New Mexico’s Burglary statute, which provides as follows:
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
B. Any person who, without authorization, enters any vehicle, watercraft,
aircraft or other structure, movable or immovable, with intent to commit
any felony or theft therein is guilty of a fourth degree felony.
N.M.S.A. § 30‐16‐3. The two discrete subsections establish burglary of a dwelling as a
third degree felony and other types of burglary as fourth degree felonies. As such, a
conviction under subsection (A) carries a different and greater statutory penalty than a
conviction under subsection (B). See N.M.S.A. § 31‐18‐15(A). Thus, the statute is
divisible and the Court may apply the modified categorical approach to determine
under which subsection Petitioner was convicted. See Mathis v. United States, 136 S. Ct.
2243, 2249 (2016). Petitioner does not dispute the statute’s divisibility or that he was
convicted four times under N.M.S.A. § 30‐16‐3(A). See generally docs. 1, 9, 10; see also doc.
Contra Valdez v. United States, No. CR 13‐3594 JB, No. CV 16‐727 JB/GBW (Dec. 6, 2016) (Wormuth, J.)
9, Ex. A.
The presiding judge in this case has previously held that a conviction pursuant to
N.M.S.A. § 30‐16‐3(A) categorically qualifies as a “crime of violence” under U.S.S.G. §
4B1.2(a) which does not include the invalid residual clause. See United States v. Perez,
No. CR 04‐1308 RB, No. CV 16‐545 RB/SMV (Dec. 2, 2016) (Brack, J.) (unpublished); see
also Valdez v. United States, No. CR 13‐3594 JB, No. CV 16‐727 JB/GBW (Dec. 6, 2016)
(Wormuth, J.) (unpublished PFRD). In that holding, the Court rejected the very
arguments presented by the instant Petitioner. Seeing no material difference in the
facts, law or arguments between Perez and this case, I recommend the Court follow its
earlier holding. Thus, I recommend finding that Petitioner’s four convictions pursuant
to N.M.S.A. § 30‐16‐3(A) categorically qualify as a “crime[s] of violence” under U.S.S.G.
§ 4B1.2(a). Consequently, even without the residual clause found in U.S.S.G. § 4B1.2(b),
Petitioner qualified as a career offender under U.S.S.G. § 4B1.1 which requires inter alia
two prior felony “crime[s] of violence.” As the invalidation of the residual clause
would have no effect on Petitioner’s sentencing his motion should be denied.
GREGORY B. WORMUTH
United States Magistrate Judge
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.
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