Hopson v. United States of America

Filing 15

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker denying USA's 9 Motion to Stay Proceedings ; and dismissing with prejudice Christopher Hopson's 1 Petition to Correct Sentence (2255 under Johnson v. USA) and denying certificate of appealability. (bap)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

CHRISTOPHER JOHN HOPSON,
Petitioner,

v.

No. CV 16-719 JAP/KBM
CR 03-677 JAP

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Petitioner Christopher Hopson (Petitioner) has moved to correct his sentence, arguing
that he is not a career offender because his prior burglary conviction does not qualify as a crime
of violence in light of Johnson v. United States, 135 S. Ct. 2551 (2015). See DEFENDANT
CHRISTOPHER HOPSON’S PETITION TO CORRECT HIS ILLEGAL SENTENCE
PURSUANT TO 28 U.S.C. § 2255 (Doc. No. 1) (Petition). The United States opposes the
Petition and, in the alternative, requests a stay of the proceedings pending the Supreme Court’s
decision in Beckles v. United States, 616 F. App’x 415 (11th Cir. 2015), cert. granted, 136 S.Ct.
2510 (June 27, 2016). See UNITED STATES’ RESPONSE TO DEFENDANT’S PETITION TO
CORRECT HIS SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND MOTION FOR A STAY
OF PROCEEDINGS UNTIL THE SUPREME COURT ISSUES ITS OPINION IN BECKLES V.
UNITED STATES (Doc. No. 9) (Response). Petitioner opposes a stay. See AMENDED REPLY
TO UNITED STATE’S [sic] RESPONSE TO DEFENDANT’S PETITION TO CORRECT HIS
SENTENCE PURSUANT TO 28 USC [sic] § 2255 AND MOTION FOR STAY OF
PROCEEDINGS PENDING UNTIL THE SUPREME COURT’S [sic] ISSUES ITS OPINION
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IN BECKLES V. UNITED STATES (Doc. No. 12) (Reply). The United States maintains that a
stay is appropriate. See UNITED STATES’ SUR-REPLY IN SUPPORT OF ITS MOTION FOR
A STAY OF PROCEEDINGS UNTIL THE SUPREME COURT ISSUES ITS OPINION IN
BECKLES V. UNITED STATES (Doc. No. 13, Ex. 1) (Surreply). Because a delay could prejudice
Petitioner, the Court will deny the motion for a stay of proceedings. But concluding that
Petitioner remains properly classified as a career offender based on two prior convictions for
crimes of violence, the Court will deny the Petition on the merits.
I.

BACKGROUND

In 2003, Petitioner was found guilty of armed bank robbery (Count I), contrary to 18
U.S.C. § 2113(a) and (d), and brandishing a firearm during and in relation to a crime of violence
(Count II), contrary to 18 U.S.C. § 924(c)(1)(A)(ii). United States v. Hopson, No. CR 03-677
JAP (D.N.M. Sept. 10, 2003), Doc. No. 46. The penalty for bank robbery when armed with a
dangerous weapon is a maximum of twenty-five years’ imprisonment. 18 U.S.C. § 2113(d).
Brandishing a firearm merits an additional minimum of seven years’ time that must follow the
robbery sentence. 18 U.S.C. § 924(c)(1)(A)(ii); United States v. Battle, 289 F.3d 661, 667 (10th
Cir. 2002) (Ҥ 924(c)(1) mandates a consecutive sentence for the use of a firearm in the
commission of a violent crime[.]”).
The Court sentenced Petitioner as a career offender under U.S.S.G. § 4B1.1 based on his
prior convictions for armed robbery and residential burglary. Hopson, No. CR 03-677 JAP, Doc.
No. 43; Presentence Investigation Report (PSR) ¶ 31. The career offender Guidelines resulted in
an enhanced offense level of 34 and criminal history category of VI. Hopson, No. CR 03-677
JAP, Doc. No. 43; § 4B1.1. The resulting advisory Sentencing Guidelines range was 262–327
months for Count I, to be followed by the mandatory consecutive firearm penalty of at least 84

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months for Count II. Hopson, No. CR 03-677 JAP, Doc. No. 43. The Court imposed a sentence
of 262 months, at the bottom of the Guidelines range, to be followed by the minimum firearm
penalty of 84 months, for a total sentence of 346 months. Id. Petitioner has been in custody since
his arrest in March 2003, for approximately 166 months. See id., Doc. 7; PSR (noting an arrest
date of March 12, 2003, and 141 days in custody as of July 31, 2003).
Petitioner argues that he should be resentenced because his prior conviction for burglary
no longer qualifies as a crime of violence after Johnson. Pet. at 1. He asks this Court to apply
Johnson retroactively to his case on collateral review and to resentence him without the career
offender enhancement. Id. The United States contends that Petitioner is not eligible for relief
because Johnson is not retroactively applicable to his case, but also asks the Court to stay these
proceedings pending a decision in Beckles. Resp. at 12.
II.

DISCUSSION

A career offender is subject to an enhanced offense level and criminal history category,
resulting in a higher Sentencing Guidelines range. See U.S.S.G. § 4B1.1. “A defendant is a
career offender if (1) the defendant was at least eighteen years old at the time the defendant
committed the instant offense of conviction, (2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled substance offense, and (3) the defendant has at least
two prior felony convictions of either a crime of violence or a controlled substance offense.” Id.
At the time of Petitioner’s offense, a crime of violence was defined as any felony that “(1) has as
an element the use, attempted use, or threatened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a) (2000).

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The Supreme Court held in Johnson that the residual clause of the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague, so that its
application to impose an increased sentence was a violation of due process. 135 S.Ct. 2551,
2557, 2563. Johnson applies retroactively to all ACCA cases on collateral review. Welch v.
United States, 136 S. Ct. 1257, 1268 (2016). Johnson also applies to cases on direct appeal
where an enhanced Guidelines range was derived from application of the residual clause in the
Sentencing Guidelines, which the Tenth Circuit Court of Appeals has held unconstitutional in
light of Johnson. United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015).
Petitioner does not contest the classification of his current conviction for armed bank
robbery or his prior conviction for armed robbery as crimes of violence. But Petitioner argues
that his prior burglary conviction could have qualified as a crime of violence only under the
residual clause of § 4B1.2(a), so that he does not have two prior qualifying convictions and
should not be classified as a career offender after Johnson. Pet. at 3. The United States does not
address the merits of Petitioner’s argument regarding his burglary conviction. Instead, the United
States contends that Johnson is procedural rather than substantive when it is applied to the
Sentencing Guidelines, and therefore that Johnson does not apply retroactively to Guidelines
cases on collateral review. Resp. at 4.
A.

Motion for a Stay of Proceedings

The retroactive applicability of Johnson to Guidelines cases is currently before the
Supreme Court in Beckles, and the United States argues that this Court should stay its
proceedings until Beckles is decided. Resp. at 12. Petitioner maintains that he would be
prejudiced by the issuance of a stay because he has already served more time than the corrected

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Guidelines range. Reply at 3. He asserts that his Guidelines range would have been 77–96
months without the career offender enhancement. Id.
The United States points out that Petitioner’s calculation of his amended Guidelines
range has only taken into account the sentence applicable to Count I. Surreply at 3. Without the
career offender enhancement, Petitioner’s offense level for Count I would have been 22 and his
criminal history category V, leading to the Guidelines range of 77–96 months on which
Petitioner relies. Id. But the mandatory 84 month consecutive sentence for Count II must still be
added to this range. Id. The firearm penalty is based on Petitioner’s conduct in Count I, not on
any prior offenses, so it is unaffected by Johnson. See § 924(c)(1)(A)(ii). This correction results
in an amended Guidelines range of 161–180 months if Petitioner were to prevail on the merits of
his claim. Surreply at 3. Because Petitioner has already served more than the lower end of this
amended range, the Court will deny the United States’ motion for a stay of proceedings. See
United States v. Carey, No. 16–8093, ––– F. App’x ––––, 2016 WL 6543343 (10th Cir. Nov. 4,
2016) (unpublished) (granting a writ of mandamus directing the district court to rule on a § 2255
motion without waiting for Beckles when the petitioner could be eligible for immediate release if
his claim was meritorious).
B.

Retroactive Application of Johnson to Guidelines Cases on Collateral Review

A new rule is retroactively applicable to cases on collateral review only if it is substantive
rather than procedural, or if it represents a “watershed” change in criminal procedure that
impacts accuracy or fundamental fairness. See Welch, 136 S. Ct. 1264 (citing Teague v. Lane,
489 U.S. 288, 310 (1989)). A substantive rule “alters the range of conduct or the class of persons
that the law punishes,” and includes “decisions that narrow the scope of a criminal statute by
interpreting its terms, as well as constitutional determinations that place particular conduct or

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persons covered by the statute beyond the State’s power to punish.” Id. at 1264–65 (internal
quotation marks and citation omitted). By contrast, a procedural rule “regulate[s] only the
manner of determining the defendant’s culpability.” Id. at 1265 (emphasis in original) (internal
quotation marks omitted). It does not create “a class of persons convicted of conduct the law
does not make criminal.” Id. (internal quotation marks omitted).
The Supreme Court determined in Welch that the rule announced in Johnson was
substantive, and therefore retroactive, because Johnson narrowed the reach of the ACCA by
limiting the offenses that qualified for an enhanced sentence. Id. After Johnson, a sentence
imposed under the residual clause of the ACCA is not a legitimate sentence because it falls
outside the statutory boundaries. See id. The application of Johnson to Guidelines cases similarly
reduces the offenses which merit an enhanced Guidelines range. See Madrid, 805 F.3d at 1213.
The United States argues that the advisory nature of the Sentencing Guidelines makes this effect
procedural rather than substantive because an above-Guidelines sentence is not illegal so long as
it is still authorized by statute. Resp. at 7–10. But the Court has previously rejected this
argument, see Vasquez v. United States, 16-cv-00678-JAP-WPL (D.N.M. Jan. 10, 2017); Soto v.
United States, 16-cv-00308-JAP-CG (D.N.M. Sept. 16, 2016), and it will do so again.
A rule that reduces the range of conduct that merits a certain sentence is substantive even
if the possibility of that sentence still exists. See Montgomery v. Louisiana, 136 S. Ct. 718, 734
(2016) (holding that reducing the number of juvenile offenders that could constitutionally be
subjected to life in prison was a substantive rule even though the sentencing court could still
impose the penalty) Similarly here, reducing the number of offenses that qualify as crimes of
violence under the Guidelines reduces the range of conduct that will trigger an enhanced penalty
and the number of offenders that can reasonably be subject to enhancement.

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While all sentencing decisions are within the discretion of the district court and subject to
deferential review, a sentence must be reasonable and “the extent of the difference between a
particular sentence and the recommended Guidelines range is surely relevant” to the
reasonableness of a particular sentence. Gall v. United States, 552 U.S. 38, 40 (2007). A sentence
that falls within the recommended Guidelines range may be presumed to be reasonable. Id. But
“a district judge must give serious consideration to the extent of any departure from the
Guidelines and must explain his conclusion that an unusually lenient or an unusually harsh
sentence is appropriate in a particular case with sufficient justifications.” Id. at 46. Although the
Guidelines are advisory, they are “the mandatory starting point for a sentencing determination; a
district court can be reversed for failing to correctly apply them despite the ability to later deviate
from the recommended range.” Madrid, 805 F.3d at 1211.
The Guidelines therefore provide the basis for the sentence even when the term imposed
falls outside the advisory range. Peugh v. United States, 133 S.Ct. 2072, 2083 (2013). This
system, “in practice, make the imposition of a non-Guidelines sentence less likely.” Id. at 2083–
84. “The Sentencing Guidelines represent the Federal Government's authoritative view of the
appropriate sentences for specific crimes. “ Id. at 2085. “[A]n increase in the guidelines range
applicable to an offender create[s] a significant risk that [the offender will] receive a higher
sentence.” Id. at 2083; see also Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016)
(“[T]he Guidelines are not only the starting point for most federal sentencing proceedings but
also the lodestar. The Guidelines inform and instruct the district court’s determination of an
appropriate sentence. In the usual case, then, the systemic function of the selected Guidelines
range will affect the sentence. . . . In most cases a defendant who has shown that the district court

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mistakenly deemed applicable an incorrect, higher Guidelines range has demonstrated a
reasonable probability of a different outcome.”).
Because any deviation from the Guidelines must be justified as reasonable based on
individualized circumstances, the Court finds that reducing the range of conduct that merits an
enhanced Guidelines range also reduces the number of offenders that can still reasonably be
subjected to such a lengthy term. The Court concludes that the rule announced in Johnson is a
substantive rule that applies retroactively to Guidelines cases on collateral review.
C.

Petitioner’s Classification as a Career Offender

The Court will now turn to the merits of Petitioner’s claim.1 For Petitioner’s burglary
conviction to support a career offender enhancement after Johnson, the offense must contain an
element of physical force or must fit within the generic definition of “burglary of a dwelling.”
§ 4B1.2(a); see also United States v. Rivera-Oros, 590 F.3d 1123, 1126–27 (10th Cir. 2009).
This determination depends only on the legal definition of the crime, and ignores the factual
basis for the conviction. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). The New Mexico
burglary statute states:
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 degree felony.

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The United States reserved its right to submit supplemental briefing on this issue only if the Supreme
Court were to hold that Johnson is retroactively applicable to Guidelines cases. Resp. at 9. Petitioner did not raise
the United States’ failure to address the merits in his Reply.

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NMSA 1978, § 30-16-3 (1971). Because the statute does not contain an element of force,
Petitioner’s conviction is a crime of violence only if his offense qualifies as “burglary of a
dwelling” within the meaning of § 4B1.2(a). See Rivera-Oros, 590 F.3d at 1126–27.
The New Mexico burglary statute as a whole is broader than the generic offense because
it criminalizes the unauthorized entry of any vehicle, watercraft, aircraft, or other structure. See
United States v. Ramon Silva, 608 F.3d 663, 665 (10th Cir. 2010). But it is divisible into two
separate crimes: Subsection (A), the burglary of a dwelling house; and Subsection (B), the
burglary of a vehicle, watercraft, aircraft, or other structure. See State v. Ervin, 1981-NMCA068, ¶ 3, 96 N.M. 366, 630 P.2d 765 (“Our burglary statute [] differentiates between residential
burglary and burglary of other structures.”). Petitioner contends that New Mexico has broadened
the definition of “dwelling” so that the two subsections are “intertwined” and “the reality is that
New Mexico’s burglary statute is an indivisible whole.” Pet. at 8–9. But a statute that lists
elements in the alternative creates different offenses, and a court can inquire into which of those
alternatives provided the basis for conviction. See Mathis, 136 S. Ct. at 2249.
Employing the modified-categorical approach, the Court will examine the charging
documents and plea agreement to determine the nature of Petitioner’s conviction. See Ramon
Silva, 608 F.3d 663, 665–66. Petitioner contends that because he was initially charged under a
different statute and the plea agreement does not cite the statute of conviction, it is impossible to
determine whether he pleaded guilty to Subsection (A) or Subsection (B). Pet. at 7. The Court
disagrees. Petitioner was indicted for “enter[ing a] dwelling house,” Pet. Ex. A, and pleaded
guilty to “residential burglary, a 3rd degree felony,” Pet. Ex. B. Section 30-16-3(A) is a third
degree felony specifically requiring entry of a “dwelling house,” while Section 30-16-3(B) is a

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fourth degree felony applicable to other unauthorized entries. See § 30-16-3. The Court therefore
concludes that Petitioner pleaded guilty under Subsection (A) to burglary of a dwelling house.
Petitioner argues further that even a conviction under Subsection (A) is not a crime of
violence because New Mexico has interpreted “dwelling house” more broadly than the generic
definition. Pet. at 8–9. A “dwelling house” is not defined in New Mexico state statutes, but is
defined by state court rules as “any structure, any part of which is customarily used as living
quarters.” UJI 14-1631 NMRA. Petitioner asserts that this definition would allow a vehicle, boat,
shed, or “sturdy box in which someone customarily resides” to qualify as a dwelling house. Pet.
at 8. Petitioner seems to contend that this expansion allows New Mexico’s statute to reach
conduct not included within the generic definition of “burglary of a dwelling.” Pet. at 8–9.
The Court has previously rejected the theory that New Mexico has so drastically
expanded the meaning of “dwelling house.” See Turrieta v. United States, No. 16 CV 395
JAP/KK (D.N.M. Oct. 28, 2016). But even if Petitioner’s interpretation were correct, this would
not put Section 30-16-3(A) beyond the reach of § 4B1.2(a). The definition of “burglary of a
dwelling” under the Sentencing Guidelines is not identical to that of generic burglary under the
ACCA. Rivera-Oros, 590 F.3d at 1128–32. As interpreted by Taylor v. United States, 495 U.S.
575, 598 (1990), generic burglary under the ACCA does not extend to vehicles. But for the
purposes of § 4B1.2(a), “a dwelling is not limited to permanent and immovable structures or
buildings[, but] includes any enclosed space that is used or intended for use as a human
habitation.” Rivera-Oros, 590 F.3d at 1132 (internal quotation marks omitted). The Court
concludes that New Mexico’s definition of “dwelling house” as a structure “customarily used as
living quarters” substantially corresponds to that of “burglary of a dwelling” in § 4B1.2(a). See

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id. at 1133. Consequently, Petitioner’s conviction under Section 30-16-3(A) remains a crime of
violence after Johnson and Petitioner is appropriately classified as a career offender.
The Court determines, under rule 11(a) of the Rules Governing Section 2255 Proceedings
for the United States District Courts, that Petitioner has failed to make a substantial showing that
he has been denied a constitutional right as required by 28 U.S.C. § 2253(c)(2). Accordingly, the
Court will deny a certificate of appealability.
IT IS THEREFORE ORDERED that:
1) The United States’ MOTION FOR A STAY OF PROCEEDINGS UNTIL THE
SUPREME COURT ISSUES ITS OPINION IN BECKLES V. UNITED STATES (Doc. No. 9) is
DENIED; and
2) DEFENDANT CHRISTOPHER HOPSON’S PETITION TO CORRECT HIS
ILLEGAL SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Doc. No. 1) is DISMISSED with
prejudice; a certificate of appealability is DENIED; and Final Judgment will be entered.

SENIOR UNITED STATES DISTRICT JUDGE

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