Petition for Writ of Certiorari — Joe Ray Alires, Petitioner v. United States

No.______

In the

SUPREME COURT OF THE UNITED STATES

JOE RAY ALIRES, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

On Petition for Writ of Certiorari to

the United States Court of Appeals for the Tenth Circuit

Petition for Writ of Certiorari

STEPHEN P. MCCUE

Federal Defender

Attorney for the Petitioner

Counsel of Record

Office of the Federal Defender

District of New Mexico

111 Lomas Blvd., NW, Suite 501

Albuquerque, N.M. 87102

Telephone: (505) 346-2489

Facsimile: (505) 346-2494

E-mail: stephen_mccue@fd.org

Question Presented

Whether a conviction for residential burglary under N.M. Stat.

Ann. § 30-16-3(A) falls within the generic crime of burglary in the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii)?

Table of Contents

Question Presented .................................................................................. i

Table of Authorities .............................................................................. iii

Opinions Below ....................................................................................... 1

Statement of Jurisdiction ........................................................................ 2

Pertinent Statutory Provisions ................................................................ 2

Statement of the Case .............................................................................. 4

Reasons for Granting the Writ ................................................................ 6

I. Whether a conviction for residential burglary under N.M. Stat. Ann.

§ 30-16-3(A) falls within the generic crime of burglary in the Armed

Career Criminal Act (ACCA) 18 U.S.C. § 924(e)(2)(B)(ii)? ................. 6

A. Introduction..................................................................................... 6

B. An offense is a ‘violent felony’ under the enumerated offense

clause only when the offense’s elements necessarily satisfy the

ACCA definition. ............................................................................. 7

C. New Mexico residential burglary includes entry into a vehicle,

watercraft, aircraft or similar structure contrary to the Tenth

Circuit’s determination. .................................................................. 9

Conclusion .............................................................................................. 15

Appendix:

United States v. Alires,

Tenth Circuit’s Order (Oct. 9, 2018) ...................................................... 1a

United States v. Alires,

U.S. District Court’s Memorandum Opinion and Order (May 1, 2017) ....... 3a

Table of Authorities

Cases

Mathis v. United States, 136 S. Ct. 2243 (2016) ....................................... 7

Payton v. New York, 445 U.S. 573 (1980) ............................................... 14

SAS Institute, Inc. Iancu, 138 S. Ct. 1348 (2018) ................................... 13

Shepard v. United States, 544 U.S. 13 (2005) .......................................... 8

State v. Archuleta, 346 P.3d 390 (N.M. Ct. App 2014) ........................... 12

State v. Foulenfont, 895 P.2d 1329 (N.M. Ct. App. 1995) ................. 10, 11

State v. Hudson, 430 P.2d 386 (N.M. 1967) ............................................ 13

State v. Lara, 587 P.2d 52 (N.M. Ct. App. 1978) .................................... 13

State v. Mestas, 370 P.3d 805 (N.M. Ct. App. 2016) ................................. 9

State v. Office of Pub. Def. ex rel. Muqqddin, 285 P.3d 622 (N.M. 2012) .. 9, 10

State v. Ruiz, 617 P.2d 160 (N.M. Ct. App. 1980)................................... 11

State v. Wilson, 867 P.2d 1175 (N.M. 1994)............................................ 13

Taylor v. United States, 495 U.S. 575 (1990)........................................ 4, 8

United States v. Gonzales, 520 U.S. 1 (1997).......................................... 13

United States v. Stitt, 139 S. Ct. 399 (2018) ............................... 4, 8, 9, 15

United States v. Turrieta, 875 F.3d 1340 (10th Cir. 2017) ............. passim

Table of Authorities (continued)

Statutes

18 U.S.C. § 924 .......................................................................................... 4

18 U.S.C. § 924(a)(2).................................................................................. 9

18 U.S.C. § 924(e) .................................................................................. 6, 9

18 U.S.C. § 924(e)(2)(B)(ii) .................................................................. 1, 10

18 U.S.C. §§ 922(g) .................................................................................... 9

28 U.S.C. § 1254(1) .................................................................................... 4

Fla. Stat. Ann. § 810.08 (West) ............................................................... 14

Mass. Gen. Laws Ann. ch. 266, § 120 (West) .......................................... 14

N.M. Stat. Ann. § 30-16-3 ............................................................... passim

NMRA Crim. UJI 14-1631 ...................................................... 5, 11, 13, 14

Other Authorities

3 Wayne R. LaFave, Substantive Criminal Law § 21.1 & n. 55 (2d ed. 2016) ... 16

In the

SUPREME COURT OF THE UNITED STATES

JOE RAY ALIRES, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

Petition for Writ of Certiorari

Joe Ray Alires petitions for a writ of certiorari to review the

judgment and opinion of the United States Court of Appeals for the

Tenth Circuit in his case.

Opinions Below

The Tenth Circuit’s decision in United States v. Joe Ray Alires,

Case No. 17-2076, was not published.1 The district court’s

memorandum opinion rejecting Mr. Alires’ contention that residential

burglary under New Mexico law included more locations than ACCA’s

generic burglary was not published. 2

1 App. 1a-2a. “App.” refers to the attached appendix. “Vol.” refers to the

record on appeal, contained in three volumes. Alires refers to the

documents and pleadings in those volumes as Vol. I-III followed by the

page number found on the bottom right of the page (e.g. Vol. III at 89).

‘PSR’ refers to the presentence report found in Volume III of the record on

appeal

2 App. 3a

Statement of Jurisdiction

On October 9, 2018, the Tenth Circuit affirmed the district court’s

decision to deny Mr. Alires’ challenge to his ACCA sentence. This Court

has jurisdiction pursuant to 28 U.S.C. § 1254(1).

Pertinent Statutory Provisions

18 U.S.C. § 924

(e)(2) As used in this subsection –...

(B) the term “violent felony” means 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

(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; ....

New Mexico Statutes

N.M. Stat. Ann. § 30-16-3

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.

NMRA Crim. UJI 14-1631

A “dwelling house” is any structure, any part of which is

customarily used as living quarters.

Statement of the Case

Mr. Alires pled guilty to being a felon in possession of a firearm. The

probation office determined that Mr. Alires had three previous

convictions for residential burglary in New Mexico. Probation, then,

concluded that Mr. Alires should be sentenced under the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e). Mr. Alires disputed the

application of ACCA; he argued that New Mexico’s definition of

“dwelling” for residential burglary encompassed more locations than the

generic definition of burglary this Court adopted in Taylor v. United

States, 495 U.S. 575, 598 (1990). At his sentencing hearing, Mr. Alires

contended that under New Mexico law, the dwelling of a person who

regularly slept in her car would be that car; if an individual broke into

that car with the requisite intent, she’d be guilty of residential burglary,

not auto burglary. The district court disagreed.

Mr. Alires appealed to the Tenth Circuit Court of Appeals; it

affirmed the district court, relying upon its opinion in United States v.

Turrieta, 875 F.3d 1340 (10th Cir. 2017).

This case squarely presents the question left unaddressed in United

States v. Stitt, 139 S. Ct. 399 (2018): whether structures, including cars or

other enclosed spaces, which are used as living quarters fall within

generic burglary.

Reasons for Granting the Writ

I.

Whether a conviction for residential burglary under N.M.

Stat. Ann. § 30-16-3(A) falls within the generic crime of

burglary in the Armed Career Criminal Act (ACCA) 18

U.S.C. § 924(e)(2)(B)(ii)?

A.

Introduction

The Tenth Circuit relied on its opinion in United States v.

Turrieta, 875 F.3d 1340 (2017), to dispose of Mr. Alires’ contention that

his previous convictions for burglary in New Mexico should not be

counted as ACCA predicate convictions. But the Tenth Circuit

misconstrued New Mexico law in Turrieta. In New Mexico:

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.

N.M. Stat. Ann. § 30-16-3. Subsections A and B provide different

penalties, making it a divisible statute. Mathis v. United States, 136 S.

Ct. 2243, 2256 (2016). Turrieta focused on the divisibility to decide that

a dwelling house could not be a “vehicle, watercraft, aircraft or

structure.” 875 F.3d at 1347. This statute, New Mexico’s only burglary

statute, punishes all unauthorized entries with felonious intent in New

Mexico. New Mexico’s definition of dwelling, New Mexico law

interpreting its burglary statute, and the plain language of the statute

reveal the difference between Subsections A and B is not the type of

structure – any enclosed space – but the use of that space that merits

different punishments.

B.

An offense is a ‘violent felony’ under the enumerated

offense clause only when the offense’s elements

necessarily satisfy the ACCA definition.

For a defendant convicted of being a felon in possession of a

firearm, the ACCA increases the statutory sentencing range from zero

to ten years of imprisonment, 18 U.S.C. § 924(a)(2), to a mandatory

minimum of 15 years to life. 18 U.S.C. §§ 922(g) & 924(e)(1). The

ACCA applies when a defendant has three prior convictions for violent

felonies, a “crime punishable by imprisonment exceeding one year”

that:

(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). The district court determined Mr. Alires’

previous New Mexico residential burglary convictions counted as

ACCA predicate burglary offenses. It did so in error.

Taylor defined “burglary” as an offense that “contains at least the

following elements: an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to commit a

crime.” 495 U.S. at 598. Shepard v. United States, 544 U.S. 13, 15-16

(2005), explained ACCA burglary did not include “a boat or motor

vehicle.” Most recently, in United States v. Stitt, 139 S. Ct. 399, 403-04

(2018), this Court clarified burglary “includes burglary of a structure or

vehicle that has been adapted or is customarily used for overnight

accommodation.” The Court did not decide whether use alone as a

dwelling puts a car or boat into the generic definition of burglary. New

Mexico’s residential burglary statute allows use to transform a car into

a dwelling. In New Mexico, a defendant can be guilty of residential

burglary for entering a Ford Fiesta, in which someone customarily

sleeps.

C.

New Mexico residential burglary includes entry into a

vehicle, watercraft, aircraft or similar structure contrary

to the Tenth Circuit’s determination.

Under New Mexico law “dwelling house” for residential burglary

is “any structure, any part of which is customarily used as living

quarters.” NMRA Crim UJI 14-1631. Requiring only regular use as

living quarters to transform a structure to a dwelling expands New

Mexico residential burglary beyond generic burglary, even as clarified

by Stitt.

The New Mexico Supreme Court identified the “outer limits of

New Mexico’s burglary statute” in State v. Office of Pub. Def. ex rel.

Muqqddin, 285 P.3d 622, 624 (N.M. 2012). In tracing the evolution of

New Mexico burglary, the Muqqddin court explained that the statute

purposefully expanded the common law crime. Specifically, the

Legislature intended to enlarge the “the set of locations that may be

burglarized to include all ‘other structures, movable or immovable’.”

State v. Mestas, 370 P.3d 805, 809 (N.M. Ct. App. 2016).

Critically, the Legislature “stripped away the previous

distinctions between … a dwelling house compared with other

structures.” Muqqddin, 285 P.3d at 627-28. This assertion by the New

Mexico Supreme Court interpreting its law scuttles Turrieta’s contrary

reading that a dwelling house is a unique structure unrelated to the

other structures enumerated within the burglary statute. 875 F.3d at

1343.

The Muqqddin Court focused on the locations protected by the

burglary statute and identified the central concern as “the right to

exclude others.” Muqqddin, 285 P.3d at 632. Ultimately, the Muqqddin

court concluded that the burglary statute protected private, prohibited

spaces from intrusion. To determine whether a location is protected the

court must look at “whether the nature of a structure’s composition is

such that a reasonable person would expect some protection from

unauthorized intrusions.” Muqqddin, 285 P.3d at 633. It is “enclosed

space that the Legislature intended to protect.” Id.

This formulation dovetails with the interpretation of “other

structure” in the burglary statute in State v. Foulenfont, 895 P.2d 1329

(N.M. Ct. App. 1995) and approved of in Muqqddin. 285 P.3d at 629-30.

Using the principle of ejusdem generis, the Foulenfont court,

determined that “vehicle, watercraft, aircraft, dwelling” all shared the

quality of being able to completely confine a person and her property.

895 P.2d at 1332. Thus, it concluded the Legislature intended “the

phrase ‘other structure’ in Section 30-16-3 to require an enclosure

similar to a vehicle, watercraft, aircraft, or dwelling.” Id.

While recognizing that the Foulenfont court defined a set of

locations “that could support a burglary conviction of any kind,”

Turrieta declared that those same enclosed spaces could not support a

conviction for residential burglary under Subsection A. 875 F.3d at 1344

(emphasis added). The Tenth Circuit never acknowledged that New

Mexico defines dwelling as “any structure, any part of” which is “used

as living quarters.” NMRA Crim UJI 14-1631. Instead, the court

reasoned that because Foulenfont aimed to restrict locations protected

by the burglary statute, any definition of “structure” would not apply to

residential burglary. 875 F.3d at 1344.

To buttress its conclusion, the Turrieta court relied upon State v.

Ruiz, 617 P.2d 160 (N.M. Ct. App. 1980). Turrieta read Ruiz as

establishing a definitive divide between the types of structures that

make up dwellings and other structures. 875 F.3d at 1345. The

Turrieta court believed that in deciding upon an appropriate lesserincluded crime, the Ruiz court necessarily decided the definition of a

dwelling must be a structure with land. But Ruiz did not decide

anything regarding the type of structure New Mexico’s burglary

statute protected.

Flipping the question, to what would an appropriate lesserincluded offense be for an unauthorized entry into a “vehicle, watercraft

or aircraft or other structure” without a felonious intent, reveals the

fallacy of Turrieta’s conclusion that Ruiz inevitably decided the nature

of structures used as dwellings. After all, one can trespass on a boat or

in a commercial building. See e.g. Fla. Stat. Ann. § 810.08 (West); Mass.

Gen. Laws Ann. ch. 266, § 120 (West). See also State v. Archuleta, 346

P.3d 390, 395 (N.M. Ct. App 2014) (holding that revocation of

permission to remain in a store for an individual who then steals items

supports trespass and shoplifting not commercial burglary). Ruiz sheds

no light on what structures constitute a dwelling in New Mexico.

New Mexico defines a dwelling house as “any structure, any part

of which is customarily used as living quarters.” NMRA Crim. UJI 141631. The New Mexico Supreme Court promulgates New Mexico’s jury

instructions “establish[ing] a presumption that the instructions are

correct statements of law.” State v. Wilson, 867 P.2d 1175, 1178 (N.M.

1994). “Any” modifies “structure” and “part.” Id. The word “any”

“naturally carries ‘an expansive meaning.’” SAS Institute, Inc. Iancu,

138 S. Ct. 1348, 1354 (2018) (quoting United States v. Gonzales, 520

U.S. 1, 5 (1997)). As an example of the expansive power of “any,” the

court upheld a conviction for residential, not commercial, burglary when

the owner had the “habit of sleeping at his drugstore.” State v. Hudson,

430 P.2d 386, 387 (N.M. 1967). This allowed a part of the drugstore to

assume the character of a dwelling. Thus, “dwelling house” in Section

30-16-3(A) includes any structure as long as some part of it is used as

living quarters. If placing a cot in a drugstore transforms it into a

dwelling, spending the night in a Jeep transforms it into one as well.

Admittedly, no state case definitively holds what “structures” can

be “dwelling houses.” But like the Hudson court, the Court of Appeals

used the definition of dwelling to uphold a conviction for residential

burglary where the structure merely shared a wall with a residence

and could provide no access to the area used as living space. State v.

Lara, 587 P.2d 52 (N.M. Ct. App. 1978). In reaching this decision, the

court stressed a “dwelling house” was “any” structure, “any part of

which” is used as living quarters. Id. at 53.

Such a definition of dwelling conforms to the burglary statute’s

dual purpose of protecting privacy as well as security of habitation. See

State v. Holt, 368 P.3d 409, 413 (N.M. 2016) (explaining “[t]he privacy

interest that our modern burglary statute protects is related to, though

broader than, the security of habitation.”) Because the statute protects

the right to exclude, id., the Legislature increased punishment for

unlawful entry into any structure used as living quarters. Thus,

burglary of a residence is a third degree felony, while invading a nonresidential structure is a fourth-degree felony. N.M. Stat. Ann. § 30-16-3.

“[R]espect for the sanctity of the home . . . has been embedded in

our traditions since the origins of the Republic.” Payton v. New York,

445 U.S. 573, 601 (1980). The privacy interest in a dwelling does not

vary with the type of structure that constitutes the victim’s home. See 3

Wayne R. LaFave, Substantive Criminal Law § 21.1 & n. 55 (2d ed.

2016) (dwelling houses under the common law included “all dwellings,

regardless of their size or worth”). To protect its citizenry’s privacy

interests and security of habitation, New Mexico’s residential burglary

statute prohibits unlawful entry into private space when any part of the

space is customarily used as living quarters.

Conclusion

New Mexico’s residential burglary includes any structure, any

part of which is used as living quarters. This presents the question left

unanswered in Stitt, 139 S. Ct. 399: whether use alone transforms any

structure into the type of location protected by the generic crime of

burglary. This Court should grant its writ of certiorari to address this

unanswered question.

Respectfully submitted,

STEPHEN P. MCCUE

Federal Defender

DATED: January 4, 2019

s/ Stephen P. McCue

Stephen P. McCue

Federal Defender

Attorney for the Petitioner

Counsel of Record

Office of the Federal Defender

District of New Mexico

111 Lomas Blvd., NW, Suite 501

Albuquerque, N.M. 87102

Telephone: (505) 346-2489

Facsimile: (505) 346-2494

E-mail: stephen_mccue@fd.org

APPENDIX

Appellate Case: 17-2076

Document: 010110065724

Date Filed: 10/09/2018

UNITED STATES COURT OF APPEALS

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

October 9, 2018

Elisabeth A. Shumaker

Clerk of Court

Plaintiff - Appellee,

v.

JOE RAY ALIRES,

No. 17-2076

(D.C. No. 1:14-CR-03902-JB-1)

(D. N.M.)

Defendant - Appellant.

_________________________________

ORDER AND JUDGMENT *

_________________________________

Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.

_________________________________

This matter is before us on the United States’ Status Report and Unopposed

Motion for Summary Disposition. The United States moves for summary affirmance

of the district court’s sentencing determination in this case in light of this court’s

decision in United States v. Turrieta, 875 F.3d 1340 (10th Cir. 2017) and the

Supreme Court’s denial of certiorari in Turrieta v. United States, No. 17-8997, -S.Ct. --, 2018 WL 2303671 (Oct. 1, 2018). Appellant Joe Ray Alires does not oppose

the motion.

*

This order and judgment is not binding precedent, except under the doctrines

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

1a

Appellate Case: 17-2076

Document: 010110065724

Date Filed: 10/09/2018

Page: 2

Upon consideration, the motion is granted. The judgment of the district court

is affirmed.

The mandate shall issue forthwith.

Entered for the Court

Per Curium

2a

Case 1:14-cr-03902-JB Document 43 Filed 05/01/17 Page 1 of 36

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,

Plaintiff,

vs.

No. CR 14-3902 JB

JOE RAY ALIRES,

Defendant.

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendant’s Objections to Presentence

Report, filed March 22, 2017 (Doc. 33)(“Objections”). The Court held a sentencing hearing on

April 25, 2017. The primary issue is whether Defendant Joe Ray Alires -- who pled guilty to a

one-count Indictment charging him with being a Felon in Possession of a Firearm, in violation of

18 U.S.C. § 922(g)(1) -- has at least three prior convictions for a violent felony or drug offense

making him an armed career criminal who is subject to an enhanced sentence under the Armed

Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). The three prior convictions for violent

felonies upon which the United States Probation Office (“USPO”) relies in its Presentence

Investigation Report ¶ 13, at 4, disclosed April 14, 2017 (Doc. 36)(“PSR”), to apply the ACCA

enhancement are for New Mexico “Residential Burglary,” in violation of NMSA 1978, § 30-163(A).

Because the Court concludes that the term “dwelling house,” as the New Mexico

Residential Burglary statute, NMSA 1978, § 30-16-3(A), uses that phrase, does not proscribe

broader conduct than does the ACCA’s generic enumerated offense of burglary, which itself

proscribes unlawful entry into a “building or other structure,” it will overrule the Objections and

apply the ACCA’s enhancement pursuant to 18 U.S.C. § 924(e)(1).

3a

Case 1:14-cr-03902-JB Document 43 Filed 05/01/17 Page 2 of 36

FACTUAL BACKGROUND

On March 9, 2017, Alires pled guilty to a one-count indictment charging him with a

violation of 18 U.S.C. § 922(g)(l), for being “Felon in Possession of a Firearm.” Plea Agreement

¶ 3, at 2, filed March 9, 2017 (Doc. 31)(“Plea Agreement”). In the Plea Agreement, Alires

admitted to the following:

On or about June 26, 2014, in Bernalillo County, in the District of New Mexico, I,

Joe Ray Alires, having been previously convicted of the felony offenses of

residential burglary, possession of a controlled substance, possession of a firearm

by a felon, fraudulent use of a credit card, commercial burglary, possession of a

deadly weapon or explosive by a prisoner, receiving stolen property, conspiracy

to commit receiving and transferring a stolen motor vehicle, residential burglary,

and unlawful taking of a motor vehicle, knowingly possessed in and affecting

commerce, a firearm and ammunition: a Sig Sauer, model P226, 9mm caliber,

semiautomatic pistol, serial number U135012 and approximately, ten (10)

Winchester brand 9mm caliber cartridges; and approximately five (5) Remington

Peters brand 9mm caliber cartridges. Specifically, the loaded pistol was located

near the driver’s seat of the Toyota pickup that I was driving prior to it being

seized by law enforcement.

Plea Agreement ¶ 6, at 3.

I have been informed that [the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”)] examined the firearm and ammunition and determined that

they both meet the statutory definitions of a firear[]m and ammunition. I have

also learned that the firearm was manufactured outside the state of New Mexico

and that the firearm and ammunition therefore had to have been previously

shipped or transported [by] interstate commerce to be physically present and in

my possession on June 26, 2014 in Bernalillo County, in the District of New

Mexico. By signing this agreement, the Defendant admits that there is a factual

basis for each element of the crime to which the Defendant is pleading guilty.

The Defendant agrees that the Court may rely on any of these facts, as well as

facts in the presentence report, to determine the Defendant’s sentence, including,

but not limited to, the advisory guideline offense level.

Plea Agreement ¶ 6, at 3-4.

Alires has twelve convictions and eight other arrests, and a criminal history category of

VI. See PSR at 6-16. Regarding Alires’ relevant convictions for “felony offenses of residential

burglary,” Plea Agreement ¶ 6, at 3, Alires was arrested for his first residential burglary offense

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Case 1:14-cr-03902-JB Document 43 Filed 05/01/17 Page 3 of 36

on September 8, 1999, see PSR ¶ 34, at 8. Alires’ fingerprints were lifted from a residence in

Albuquerque, New Mexico, where the owners had reported that the “back gate to their home was

open . . . [and] several items [were] missing . . . includ[ing] three rifles, a shotgun, and property

from the children’s room.” PSR ¶ 34, at 8. Albuquerque Police’s investigation also discovered

that, “on March 31, 1999, [Alires] pawned a Nintendo 64 (the [residence owner’s] gaming

system), games, and also an LCD projector.” PSR ¶ 34, at 8. Alires was arrested for his second

residential burglary offense on April 11, 2005. See PSR ¶ 38, at 10-11. On that occasion,

Albuquerque Police were dispatched to a burglary in progress. The caller advised

she was locked in her bathroom and could hear a back window breaking. The

caller also told police that she could hear someone in her house. Officers arrived

on scene, and observed the defendant walking out the front door. He appeared

startled as he looked at the officers and quickly walked back into the house,

slamming the door. Officers gave the defendant commands to come out of the

house, as officers were informed the home owner was still inside. Officers broke

a window in the house and continued to give the defendant verbal commands to

exit the residence. The defendant ultimately surrendered to police . . . .

PSR ¶ 38, at 10-11.

Alires’ arrest for his third residential burglary offense came on October 27, 2005. See

PSR ¶ 40, at 11-12. There, a

police report from the Albuquerque Police Department, [charged that Alires] did

unlawfully enter a residence on General Stilwell NE, with the intent to commit a

theft ther[e]in. A neighbor to the residence observed the defendant running from

a residence out a back yard. The defendant ran from neighbors and jumped into a

vehicle driving in the area. Police located the address tied to that vehicle and

spoke with the owner who advised the person who jumped in the vehicle was Joe

Alires. The owner of the residence on General Stilwell, NE advised police no one

had permission to be in his residence or take any property in the residence. Stolen

items from the home had the approximate value of $1,200.00.

PSR ¶ 40, at 11-12. Alires’ fourth arrest for a residential burglary offense came on June 26,

2014, and came in connection with the conduct leading to Alires’ present one-count federal

charge for being a felon in possession of a firearm. See PSR ¶ 41, at 12. Alires was in the

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Case 1:14-cr-03902-JB Document 43 Filed 05/01/17 Page 4 of 36

process of burglarizing a residential home when police officers arrived, and thereafter

apprehended him and discovered the firearms. See PSR ¶ 10, at 3-4.

PROCEDURAL HISTORY

Alires pled guilty to a one-count indictment charging him with a violation of 18 U.S.C. §

922(g)(l), for being “Felon in Possession of a Firearm.” Plea Agreement ¶ 3, at 2. The USPO

disclosed a PSR on April 14, 2017, recommending the Court apply the ACCA’s enhancement for

armed career criminals pursuant to 18 U.S.C. § 924(e). PSR ¶ 25, at 6. The PSR applies the

ACCA enhancement, stating:

The offense of conviction is a violation of 18 U.S.C. § 922(g), and the defendant

has at least three prior convictions for a violent felony or serious drug offense, or

both, which were committed on different occasions. Therefore, the defendant is

an armed career criminal and subject to an enhanced sentence under the

provisions of 18 U.S.C. § 924(e). The offense level for an armed career criminal

is the greatest of §§4B1.4(b)(1), (b)(2) or (b)(3). In this case, the defendant used

or possessed a firearm or ammunition in connection with either a crime of

violence, as defined in §4B1.2(a), or a controlled substance offense, as defined in

§4B1.2(b), or the firearm possessed by the defendant was of a type described in

26 U.S.C. § 5845(a).

PSR ¶ 25, at 6.

Alires then filed his Objections to the ACCA enhancement on March 22, 2017, see

Objections at 1, and the Plaintiff United States of America responded to the Objections on March

23, 2017, in support of the ACCA enhancement, with the United States’ Response to

Defendant’s Objections to Presentence Report, filed March 23, 2017 (Doc. 34)(“Response”), see

Response at 1. Alires replied to the Response with the Defendant’s Reply to the United States’

Response to Defendant’s Objections to Presentence Report at 6, filed April 10, 2017 (Doc.

35)(“Reply”). The USPO disclosed an addendum to the PSR on April 19, 2017, to reflect

application of the “2016, rather than the 2015, Guidelines Manual.” Memorandum, disclosed

April 19, 2017 (Doc. 40)(“Addendum”).

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1.

The Objections.

Alires primarily objects to “the finding in paragraph 22 of the Presentence Report [] that

the defendant is an armed career criminal based on his prior convictions . . . in New Mexico for

residential burglary.”

Objections at 1.

Alires, consequently, objects to the PSR’s

recommendation that the Court apply the ACCA sentencing enhancement. See Objections at 12. In his Objections, Alires contends that the “meaning of ‘dwelling house’ in N.M.S.A. § 3016-3(A) is any structure, any part of which is customarily used as living quarters.” Objections at

2. Because of “the New Mexico Court of Appeals decision in State v. Foulenfont, 895 P.2d

1329, 1332 (NM App. 1995),” Alires argues, “the framework and language of § 30-16-3 strongly

suggests vehicles, watercraft and aircraft are ‘structures’ within the ‘dwelling house’ definition.”

Objections at 2. Alires thus explains that, because there is “a realistic probability New Mexico

would apply § 30-16-3(A) to unlawful entry into vehicles,” and because his “offense stretches

beyond the confines of generic burglary, Mr. Alires’ potential ACCA sentence is founded on the

ACCA’s residual clause,” which is now unconstitutional. Objections at 2-3.

2.

The Response.

The United States argues in its Response that “the elements of the New Mexico offense

of residential burglary in § 30-16-3(A) match or are narrower than the Supreme Court’s

definition of generic burglary, [meaning that the] Defendant’s burglary convictions should

qualify as ACCA predicate offenses.” Response at 2. The United States contends that Alires’

New Mexico residential burglary offenses thus fall within the purview of the ACCA’s

enumerated offense of generic burglary, see 18 U.S.C. § 924(e)(2)(B)(ii), subjecting him to the

ACCA enhancement, see Response at 2. According to the United States, “if a statute sweeps more

broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even

if the defendant actually committed the offense in its generic form.” Response at 2 (citing Descamps

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v. United States, 133 S. Ct. 2276, 2283 (2013)). Further, the United States explains that “[t]o

determine whether a prior conviction is for generic burglary courts apply what is known as the

categorical approach,” which “requires a comparison between the elements of the statute at issue

with the elements of the generic offense.” Response at 2-3 (citing Taylor v. United States, 495

U.S. 575, 600 (1990); Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)). The United States

provides that, where a statute contains “multiple alternative elements,” however, “a court may

employ the modified categorical approach, but if the statute instead ‘enumerates various factual

means of committing a single element,’ the court may not.” Response at 3 (citing Mathis v.

United States, 136 S. Ct. at 2249). The United States argues that, to ascertain whether the

modified categorical approach must be applied, the Supreme Court of the United States of

America has explained:

The first task for a sentencing court faced with an alternatively phrased statute is

thus to determine whether its listed items are elements or means. If they are

elements, the court should do what we have previously approved: review the

record materials to discover which of the enumerated alternatives was the offense

of conviction and compare the elements of the offense of conviction to the generic

crime. But instead if they are means, the court has no call to decide which of the

statutory alternatives was at issue in the earlier prosecution.

Response at 3 (citing Mathis v. United States, 136 S. Ct. at 2256).

Here, the United States argues:

[T]he New Mexico burglary statute has two alternative subsections with different

penalties. Subsection 30-16-3(A), residential burglary, is a third degree felony,

which carries a maximum penalty of three years in prison. . . . In contrast,

subsection 30-16-3(B), commercial burglary, is a fourth degree felony, which

carries a maximum penalty of 18 months in prison. . . . Thus, because these two

alternatives have different penalties, they constitute different elements. . . . As a

result, the New Mexico burglary statute is a divisible statute and the court may

apply the modified categorical approach to determine which subsection formed

the basis of defendant’s convictions in this case. . . . Here, the modified

categorical approach can be employed to establish that his convictions were for

residential burglary.

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Response at 3 (citing Mathis v. United States, 136 S. Ct. at 2256). Then, in support of its

argument that the New Mexico residential burglary offense had elements that were the same or

narrower than generic burglary, the United States argues that the New Mexico offense only

“requires an entry of a dwelling house with the intent, at the time of entry, to commit a felony or

theft therein.” Response at 5. The “dwelling house element,” the United States contends, is

“narrower than the ‘building or other structure’ element of generic burglary,” because in “New

Mexico law, a ‘dwelling house’ is defined as ‘any structure, any part of which is customarily

used as living quarters’ [which] is necessarily narrower than generic burglary because it applies

to only one category of buildings or structures, i.e., only those customarily used as living

quarters.”

Response at 5 (citing State v. Ross, 1983-NMCA-065, ¶ 11, 665 P.2d 310).

Accordingly, the United States explains that its “conclusion that § 30-16-3(A) qualifies as a

generic burglary offense is supported by the Tenth Circuit’s analysis of generic burglary in

United States v. Ramon Silva, 608 F.3d 663, 668-69 (10th Cir. 2010) . . . [where] the court held

that generic burglary encompasses those burglaries that have been ‘committed in a building or

enclosed space . . . not in a boat or motor vehicle.’” Response at 6 (quoting Shepard v. United

States, 544 U.S. 13, 16 (2005)). Thus, the United States asserts, when “[a]pplying Silva to § 3016-3(A), a dwelling house unquestionably qualifies as ‘a building or enclosed space’ because

dwelling house is defined as a ‘structure, any part of which is customarily used as living

quarters,’” and the “New Mexico definition of a dwelling house does not include a ‘boat or

motor vehicle’ or any other means of transport. Instead, it is limited to ‘structures.’” Response

at 6 (citing State v. Ross, 1983-NMCA-065, ¶ 11, 665 P.2d 310). The United States last attacks

Alires’ reliance on the case of State v. Foulenfont, 1995-NMCA-028, 895 P.2d 1329, because the

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“offense of conviction at issue in Foulenfont was § 30-16-3(B), not § 30-16-3(A).” Response at

7.

3.

The Reply.

The Reply begins, in relevant part, by explicating:

The Taylor Court made clear that certain “places . . . other than buildings” were

not places, even if entered unlawfully with the intent to commit a crime that

would qualify the offense as a “burglary.” . . . Those disqualified places include

booths, tents, automobiles, boats and railroad cars. . . . The Court later clarified in

Shepard that the ACCA “makes burglary a violent felony only if committed in a

building or enclosed space (“generic burglary”) not in a boat or motor vehicle.” . .

. A defendant has been convicted of a “burglary” under the ACCA if the

defendant has been convicted of an offense that “corresponds in substance” to the

generic definition.

Reply at 4 (quoting Taylor v. United States, 495 U.S. at 599; Shepard v. United States, 544 U.S.

at 15-16; United States v. Ramon Silva, 608 F.3d at 668-69). The Reply also concedes that

“[t]he parties agree that § 30-16-3’s section A has elements that are divisible from § 30-16-3’s

section B, given the difference in penalties between the two,” thus inherently requiring

application of the modified categorical approach. Reply at 5 (citing Mathis v. United States, 136

S. Ct. at 2256 (“If statutory alternatives carry different punishments, then . . . they must be

elements.”).

Accordingly, Alires’ Reply provides that “[t]he parties dispute what places

‘dwelling house’ in § 30-16-3(A) encompasses,” and that he “will demonstrate ‘dwelling house’

includes places, such as vehicles, watercraft, aircraft and similar structures that take New Mexico

residential burglary outside the bounds of generic burglary.” Reply at 5-6.

Alires proceeds to argue that New Mexico’s Uniform Jury Instruction 14-1630 defines

“dwelling house,” for the purposes of New Mexico’s residential burglary offense, as “any

structure, any part of which is customarily used as living quarters.” Reply at 6. Alires then

contends that “the state’s express definition of ‘dwelling house’ suggests an expansive

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interpretation of the term[, because t]he definition refers to ‘any’ ‘structure.’” Reply at 6. Alires

strongly relies on UJI 14-1630’s use of the word “any,” and highlights a Court of Appeal of New

Mexico’s opinion which concludes that a “dwelling house” encompasses burglary of a garage

without access to a residence. Reply at 6-7. According to Alires, this UJI ensures that “jurors

would reasonably understand the definition to include a wide range of structures.” Reply at 8.

Alires then addresses the Court of Appeal of New Mexico opinion

in Foulenfont [which] shows how far the “dwelling house” term stretches. In that

case, the court applied to § 30-16-3 the ejusdem generis principle that where

general words follow an enumeration of things of a particular and specific

meaning, the general words are construed as applying to things of the same kind

or class as those specifically mentioned. . . . Based on that principle the court

held the term “other structure” that follows “vehicle, watercraft, aircraft,

dwelling” in § 30-16-3’s introductory paragraph means “an enclosure similar to a

vehicle, watercraft, aircraft or dwelling.”

Reply at 8. It is Alires’ contention, then, that,

Foulenfont’s holding makes apparent that a vehicle, a watercraft or an aircraft is

as much a “structure” as a dwelling is. In other words, the word “structure”

includes those things as well as enclosures similar to them. Consequently, the

accepted definition of “dwelling house” -- “any structure, any part of which is

customarily used as living quarters,” NMRA Crim. UJI 14-1631 -- must include a

vehicle, watercraft, aircraft or similar structure. This conclusion is consistent with

the “‘normal rule of statutory construction’ to interpret ‘identical words used in

different parts of the same act [as having] the same meaning.’”

Reply at 9.

Alires concedes, however, that the State v. Foulenfont holding concerns a

prosecution for NMSA 1978 § 30-16-3(B) and not for NMSA 1978 § 30-16-3(A). See Reply at

9.

Alires then turns his argument to policy, stating that the “statute’s purpose is to protect

against the feeling of violation and vulnerability that occurs when a burglar invades one’s

personal space.” Reply at 10 (internal quotation marks omitted). This policy, Alires contends,

suggests that the “New Mexico legislature decided the invasion of one’s personal space in the

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home deserved greater protection than the invasion of non-residences, prompting it to increase

the degree of felony from fourth, § 30-16-3(B) to third, § 30-16-3(A).”

Reply at 10.

Accordingly, Alires posits that, “[i]n terms of privacy interests, it should not matter what type of

structure constitutes the victim’s home” and that, thus, “New Mexico designated unlawful entry

of a vehicle as a third degree felony when any part of the vehicle is customarily used as living

quarters because of the heightened privacy intrusion such an entry entails.” Reply at 10-11.

Alires then suggests that “New Mexico cases indicate a ‘dwelling house’ includes a

vehicle such as a mobile home or a trailer.” Reply at 11. Alires provides the Court with citation,

then, to Supreme Court of New Mexico cases which consider approvingly convictions for

“aggravated residential burglary of a mobile home” and criminal trespass -- which the Supreme

Court of New Mexico states “necessarily include[s] . . . the offense of aggravated burglary of a

dwelling house” -- of a trailer, which he argues support his argument for a broad reading of the

term “dwelling house.” Reply at 11-12. Alires also provides the Court with citation to cases

involving convictions for “shooting at a dwelling,” which similarly suggest mobile homes and

trailers fall within the scope of “dwelling house,” and thus argues, “[f]or all of these reasons,

‘dwelling house’ in § 30-16-3(A) encompasses vehicles, watercraft, aircraft and other similar

structures.” Reply at 12.

At this point in the Reply, Alires -- who has already conceded that “§ 30-16-3’s section A

has elements that are divisible from § 30-16-3’s section B, given the difference in penalties

between the two,” refines his argument regarding the Court’s necessary consequent application

of the modified categorical approach. Reply at 5-6. See id. at 13-14. Ostensibly, Alires is

objecting to a second layer of categorical review, wherein the Court would -- after its

consideration of the record and Alires’ specific predicate offenses to ascertain whether the

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crimes of conviction were pursuant to NMSA 1978 § 30-16-3(A) or (B) -- “examine conclusive

judicial records to determine if the defendant was convicted of a generic offense” as it pertains to

NMSA 1978 § 30-16-3(A) alone. Reply at 13-14. Alires thus asks the Court to apply only the

categorical approach to “the entire indivisible § 30-16-3(A),” which, he argues, will “lead[] to

the same conclusion the Supreme Court reached in Mathis with respect to the Iowa burglary

statute: the elements of New Mexico residential burglary are broader than the elements of

generic burglary.” Reply at 14. Alires explains: “In Mathis, the Court assessed an Iowa burglary

statute that prohibited unlawful entry of ‘any building, structure [or] land, water, or air vehicle.’ .

. . Iowa law established the various structures were means, not elements. . . . Because the

location element encompassed land, water or air vehicles, Iowa burglary is not generic burglary.”

Reply at 14. Accordingly, Alires posits that, “also in the case of New Mexico residential

burglary, the elements of that offense include entry into places that are outside the generic

burglary definition: vehicles, watercraft, aircraft and similar structures.” Reply at 14.

Alires next focuses his argument on the notion that, “[w]hen the Supreme Court in Taylor

and Shepard referred to what enclosures entry into which were outside generic burglary it gave

no hint that using those non-generic structures for a certain purpose would transform them into

generic structures.” Reply at 15 (citing Shepard v. United States, 544 U.S. at 15-16 (providing

that generic burglary includes entry into “a building or enclosed space . . . not in a boat or motor

vehicle”); Taylor v. United States, 495 U.S. at 591, 599 (providing that places disqualified from

generic burglary include booths, tents, automobiles, boats and railroad cars)). Alires explains

that courts have thus “held that a non-generic place used as a residence or for business is still a

non-generic place.” Reply at 15. Alires also explains that many “courts have found state

burglaries to be non-generic where the burglaries involved places used for accommodation,

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business, and/or assembly.” Reply at 16. It is Alires’ primary contention, then, that “mobile

homes and trailers are not generic burglary structures.” Reply at 18. Alires concedes, however,

that the Tenth Circuit, in United States v. Spring, 80 F.3d 1450 (10th Cir. 1996), concluded “that

the burglary of a ‘vehicle adapted for the overnight accommodation of persons’ is a burglary of a

‘structure’ within Taylor’s generic burglary definition.” Reply at 18. Alires argues:

[T]he Tenth Circuit Court of Appeals recognized in U.S. v. Ramon Silva, 608 F.3d

at 668-69, [that] the Supreme Court made clear its exclusion of all boats and

motor vehicles from the generic burglary definition in Shepard. 544 U.S. at 15-16

(generic burglary includes entry into “a building or enclosed space . . . not in a

boat or motor vehicle”); see also United States v. Henrique, 757 F.3d 144, 150

(4th Cir. 2014)(indicating Shepard clarified what Taylor meant by structure in its

generic burglary definition).

Reply at 19. Alires nonetheless argues, too, that “Spring is also not an obstacle to the conclusion

that New Mexico residential burglary is non-generic burglary for another reason as well. Even if

a ‘vehicle adapted for the overnight accommodation of persons’ were a generic burglary

structure, as Spring indicates, New Mexico’s ‘dwelling house’ definition includes a much

broader expanse of structures.” Reply at 20. Alires last contends that the Court would be

“mistaken to determine that there is not a realistic probability New Mexico would apply § 30-163(A) in a non-generic manner,” Reply at 21, and asks that the Court sustain his Objections, see

Reply at 21-22.

4.

The April 25, 2017, Hearing.

At the April 25, 2017, hearing the Court first announced its inclination to conclude that

Alires’ New Mexico residential burglary convictions qualified as violent felonies under the

ACCA’s enumerated clause and that it would be issuing an opinion detailing its rationale. See

Transcript of Hearing at 4:6-19:7 (Court)(“Tr.”).1 The Court then asked Alires if he had any

1

The Court’s citations to the transcript of the hearings refers to the court reporter’s

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further argument to add in support of his Objections. See Tr. at 19:8-10 (Court). Alires stated

that he did not and argued that “I think our arguments were set forth primarily in the [R]eply,”

and that he “would still maintain that the state definition of burglary does sweep [more] broadly

than the generic definition and also that the Court should not [apply the] modified categorical

approach.” Tr. at 19:11-18 (Keefe). Regarding why the state offense sweeps more broadly than

the generic offense, Alires maintained:

cases from New Mexico . . . support a finding that it sweeps more broadly than

generic burglary in terms of applying to mobile homes and trailers which can then

logically be extended to vehicles, watercraft, aircraft. And from our reading of

Shepherd, I didn’t think that there was any mention of the purpose of the vehicles

or automobiles whatever term they use in terms of it being a primary purpose of

transportation. . . . I think that that was one of the arguments that we kind of

n[urt]ured was that there is no distinction between whether it’s a purpose for

transportation or possible residence is someone is living in a . . . [c]ar, and I think

that that’s more along the lines of what we’re arguing towards that this could be

applied in a situation where if someone is homeless and basically end up in their

car and a burglary is committed that the residential burglary statute in New

Mexico could apply to that situation. So, Your Honor, I think that primarily the

argument set forth in the reply are the arguments we would stand on.

Tr. at 19:19-20:16 (Keefe). Alires also argued to the Court that it was noteworthy that

last year in terms of the guidelines, which basically determined that burglary

offenses rarely result in physical violence . . . basically [took] burglary out of the

realm of crimes violence for guideline purposes. I know that that is not in fact

what we’re here on today but it does seem like there is some inconsistency clearly

between the guideline approach . . . and the remaining enumerated offense.

Tr. at 21:11-19 (Keefe). The Court noted Alires’ attempt to identify a trend in the law, but also

provided that notion simply “looks like it was kind of a split between Congress and the

commission.” Tr. at 21:19-22 (Court).

original, unedited version. Any final transcript may contain slightly different page and/or line

numbers.

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The United States then argued and agreed with the Court’s inclination. See Tr. at 23:1121 (Walsh). Regarding Alires’ argument that the modified categorical approach should not be

applied, the United States contended that “the statute is clearly divisible. One paragraph speaks

for the residential burglary, the third degree, and then the other paragraph is the fourth degree,

which encompasses commercial burglary.” Tr. at 23:17-21 (Walsh). The United States also

referenced the “[United States v.] Blair[, 734 F.3d 218 (3d Cir. 2013)] case, [which] was prior to

Johnson . . . but . . . stood for the proposition . . . that once a statute is partially divisible, then it’s

divisible all the way through.” Tr. at 23:22-24:5 (Walsh). The Court then gave Alires the last

word on the ACCA Objection, and Alires explained:

I think the argument set forth in the reply I guess view that more the section A as

its own stand alone statute that is the basis of these convictions, and within that

statute we’re still arguing that . . . the residential burglary within section A is,

sweeps more broadly than the generic definition so there is no concern about the

divisibility of the statute, because we’re not even considering Section B in terms

of the actual conviction in this case.

Tr. at 24:22-25:6 (Keefe). The Court overruled Alires’ Objections, telling the parties that it

would issue a memorandum opinion as soon as possible detailing its rationale. See Tr. at 25:918 (Court).

LAW REGARDING THE ACCA

Congress designed the ACCA to address the “special danger” that career offenders

carrying guns pose. Begay v. United States, 553 U.S. 137, 146 (2008). The ACCA imposes a

minimum fifteen-year sentence for individuals who violate 18 U.S.C. § 922(g),2 and have “three

previous convictions . . . for a violent felony or serious drug offense, or both, committed on

occasions different from one another.” 18 U.S.C. § 924(e)(1). See United States v. Sprous, 2010

2

18 U.S.C. § 922(g) prohibits certain individuals, including convicted felons, from

transporting or possessing firearms.

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U.S. App. LEXIS 15689, at *4 (10th Cir. 2010)(stating that, “[u]nder the Armed Career Criminal

Act (ACCA), 18 U.S.C. § 924(e), a defendant who violates 18 U.S.C. § 922(g) and has ‘three

previous convictions . . . for a violent felony’ is subject to a 15-year minimum sentence”).

Whether a prior offense is a violent felony under the ACCA is a question of law. See

Johnson I, 559 U.S. at 134-35; United States v. Martinez, 602 F.3d 1166, 1168 (10th Cir. 2010).

The ACCA defines “violent felony” as

any crime punishable by imprisonment for a term exceeding one year, or any act

of juvenile delinquency involving the use or carrying of a firearm, knife, or

destructive device that would be punishable by imprisonment for such term if

committed by an adult, that -(i) has as an element the use, attempted use, or threatened use of physical

force against the person of another; or

(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). The ACCA formerly defined three classes of crimes that constitute

violent felonies: (i) crimes that have as an element “the use, attempted use, or threatened use of

physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(I); (ii) burglary, arson,

extortion, or crimes involving the use of explosives, see 18 U.S.C. § 924(e)(2)(B)(ii); and (iii)

crimes not within the first two categories which involve “conduct that presents a serious risk of

physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii). In Johnson II, the Supreme Court held

that ACCA’s provision making a “violent felony” any offense criminalizing “conduct that

presents a serious risk of physical injury to another,” called the Residual Clause, is

impermissibly vague and that imposing an increased sentence under the Residual Clause thereby

violates the Constitution’s guarantee of due process. Johnson II, 135 S. Ct. at 2562-63. Still

remaining, however, is § 924(e)(2)(B)(i), which defines “violent felony” to mean a crime that

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“has as an element the use, attempted use, or threatened use of physical force,” commonly

referred to as the “element” or “force” clause, and the “enumerated” clause, embodying §

924(e)(2)(B)(ii)’s language which lists the crimes of burglary, arson, extortion, or the use of

explosives as violent felonies. The Supreme Court expressly stated that its holding with respect

to the Residual Clause does not call into question ACCA’s application to the four enumerated

offenses or to the remainder of the definition of a violent felony in § 924(e)(2)(B). See 135 S.

Ct. at 2563.

Johnson II, therefore, has no application to sentences enhanced under §

924(e)(2)(B)(i)’s force or element clause, or § 924(e)(2)(B)(ii)’s enumerated clause.

1.

Use, Attempted Use, or Threatened Use of Physical Force.

A crime is a violent felony if it is punishable by imprisonment for more than a year, and

“has as an element the use, attempted use, or threatened use of physical force against the person

of another.” 18 U.S.C. § 924(e)(2)(B)(I).

Although the ACCA does not define “physical force,” Black’s Law Dictionary

defines “force” as “[p]ower, violence, or pressure directed against a person or

thing,” and “physical force” as “[f]orce consisting in a physical act.” Black’s

Law Dictionary (8th Ed. 2004). Section 924(e)(2)(B)(I), moreover, includes not

only the actual or attempted use of physical force against the person of another,

but also the threatened use of such force.

United States v. Hernandez, 568 F.3d 827, 830 (10th Cir. 2009)(footnote omitted). See United

States v. Herron, 432 F.3d 1127, 1137 (10th Cir. 2005)(stating that the defendant’s convictions

for having “knowingly place[d] or attempt[ed] to place another person in fear of imminent

serious bodily injury . . . by the use of a deadly weapon” constituted violent felonies, because

this “conduct easily satisfies the requirement of ‘the threatened use of physical force against the

person of another’”).

In determining whether a conviction is for a violent felony under § 924(e)(2)(B)(I), the

court applies a “categorical approach” under which the court looks “only to the fact of conviction

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and the statutory definition of the prior offense, and do not generally consider the particular facts

disclosed by the record of conviction.” United States v. Scoville, 561 F.3d 1174, 1176 (10th Cir.

2009)(citation omitted). See United States v. Silva, 608 F.3d 663, 668 (10th Cir. 2010)(applying

a categorical approach to determine whether a prior conviction qualifies as a violent felony under

§ 924(e)(2)(B)(I)). All that is relevant is “‘whether the elements of the offense are of the type

that would justify its inclusion’ within the ACCA”; the court does not “‘inquir[e] into the

specific conduct of this particular offender.’” United States v. Scoville, 561 F.3d at 1176

(quoting James v. United States, 550 U.S. 192, 202 (2007)). See Begay v. United States, 553

U.S. at 141 (“In determining whether this crime is a violent felony, we consider the offense

generically, that is to say, we examine it in terms of how the law defines the offense and not in

terms of how an individual offender might have committed it on a particular occasion.”); Taylor

v. United States, 495 U.S. 575, 602 (1990); United States v. Hernandez, 568 F.3d at 829.

In determining whether a conviction obtained under this statute is a

“violent felony” within the meaning of § 4B1.2(a), we apply a formal categorical

approach looking only to the statutory definitions of the prior offense, and not to

the particular facts underlying those convictions.

Applying this approach, it is clear a violation of Wyo. Stat. Ann. §

7-18-112 is not a violent felony within the meaning of the guideline because . . . it

is a crime of inaction and does not “involve[ ] conduct that presents a serious

potential risk of physical injury to another.”

United States v. Pappan, 315 F. App’x 677, 682 (10th Cir. 2009)(citations and footnotes

omitted).

If a criminal statute proscribes both conduct that falls within the definition of violent

felony and conduct that falls outside of it, the court uses a “modified categorical approach,”

under which the court may also look at the charging documents and the documents of conviction

to determine whether the defendant was convicted of a violent felony. United States v. Scoville,

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561 F.3d at 1176. See United States v. Avalos, 315 F. App’x 731, 732 (10th Cir. 2009)(“[W]e

employ the so-called ‘modified categorical approach’ when the statute of conviction

encompasses both violent and nonviolent crimes.”). The Tenth Circuit clarified the proper use of

the modified categorical approach in United States v. Herrera, stating: “[The modified

categorical approach] is properly used when the underlying statute of conviction contains

multiple element sets and is therefore divisible.” 286 F. App’x 546, 552 (10th Cir. 2008). See

United States v. Silva, 608 F.3d at 668 (stating that the modified categorical approach involves

consulting “charging documents and documents of conviction”)(citing United States v.

Hernandez, 568 F.3d at 829). In United States v. Hernandez, the Tenth Circuit analyzed whether

Texas’ crime of deadly conduct3 is a violent felony under the ACCA’s § 924(e)(2)(B)(I).

Because the defendant argued the Texas crime of deadly conduct was too broad to categorically

3

Texas law defines the crime of deadly conduct, in pertinent part, as:

(a) A person commits an offense if he recklessly engages in conduct that places

another in imminent danger of serious bodily injury.

(b) A person commits an offense if he knowingly discharges a firearm at or in the

direction of:

(1) one or more individuals; or

(2) a habitation, building, or vehicle and is reckless as to whether

the habitation, building, vehicle is occupied.

(c) Recklessness and danger are presumed if the actor knowingly pointed a

firearm at or in the direction of another whether or not the actor believed the

firearm to be loaded.

....

(e) An offense under Subsection (a) is a Class A misdemeanor. An offense under

Subsection (b) is a felony of the third degree.

Tex. Penal Code Ann. § 22.05.

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constitute a violent felony, the Tenth Circuit applied a modified categorical approach, looking to

the charging documents and documents of conviction to uncover the allegation that the defendant

“knowingly discharged a firearm in the direction of an individual.” United States v. Hernandez,

568 F.3d at 829-30. The Tenth Circuit concluded that Hernandez’ conduct had as an element

“the use, attempted use, or threatened use of physical force against another person,” and held that

the charged crime was a “violent felony” under the ACCA’s § 924(e)(2)(B)(I). United States v.

Hernandez, 568 F.3d at 830.

In Johnson I, the Supreme Court analyzed whether a defendant’s prior battery conviction

under Florida law was a “violent felony” under the ACCA. See Johnson I, 559 U.S. at 135-45.

Specifically, the Supreme Court inquired whether actually and intentionally touching another

person constitutes the use of “physical force” within § 924(e)(2)(B)(I)’s meaning. 559 U.S. at

135-45.

The Supreme Court noted that the ACCA does not define “physical force” and

“therefore [gave] the phrase it’s ordinary meaning,” holding that the term physical force “means

violent force -- i.e., force capable of causing physical pain or injury to another person.” 559 U.S.

at 140 (emphasis in original).

In United States v. Herron, the Tenth Circuit held that Colorado’s menacing statute4

4

Colorado defines menacing as:

A person commits the crime of menacing if, by any threat or physical action, he

or she knowingly places or attempts to place another person in fear of imminent

serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5

felony if committed:

(a) By the use of a deadly weapon or any article used or fashioned

in a manner to cause a person to reasonably believe that the article

is a deadly weapon; or

(b) By the person representing verbally or otherwise that he or she

is armed with a deadly weapon.

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constituted a violent felony under use of force prong, and that “threatening or engaging in

menacing conduct with a deadly weapon,” such that a victim believes he or she is in danger of

receiving an immediate battery, has as an element the threatened use of physical force against

another person. United States v. Herron, 432 F.3d 1127, 1138 (10th Cir. 2005), cert. denied, 547

U.S. 1104 (2006). The defendant argued that menacing was not a “violent felony,” because the

term deadly weapon5 was defined so broadly as to include a fist, foot, or whiskey bottle, meaning

that menacing includes conduct such as telling someone over the telephone that you are going to

punch or kick them. 432 F.3d at 1138. The Tenth Circuit stated: “Knowingly placing someone

in fear . . . by the use of a deadly weapon certainly constitutes threatening someone,” and “[a]

threat to kick or strike someone comes within the ACCA definition regardless of whether a foot

or bottle is a deadly weapon.” 432 F.3d at 1138.

In United States v. Silva, the Tenth Circuit concluded that “‘apprehension causing’

aggravated assault . . . creates a commensurate threat of physical force” and likened said

conviction to convictions under statutes that “criminalized intentional physical contact with a

deadly weapon.” 608 F.3d at 672. The Tenth Circuit noted that the guideline provision defines

C.R.S.A. § 18-3-206 (2000).

5

Colorado defines a deadly weapon as:

“Deadly weapon” means any of the following which in the manner it is used or

intended to be used is capable of producing death or serious bodily injury: (I) A

firearm, whether loaded or unloaded; (II) A knife; (III) A bludgeon; or (IV) Any

other weapon, device, instrument, material, or substance, whether animate or

inanimate.

C.R.S.A. § 18-1-901(3)(e) (1999). New Mexico’s aggravated assault statute does not define

“deadly weapon.” The New Mexico Criminal Code’s uniform definition defines “deadly

weapon” as “any firearm, whether loaded or unloaded; or any weapon which is capable of

producing death or great bodily harm . . . or any other weapons with which dangerous wounds

can be inflicted.” N.M.S.A. 1978, § 30-1-12B (1963).

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“‘crime of violence’ as ‘any of the following: . . . aggravated assault, . . . or any offense . . . that

has as an element the use, attempted use, or threatened use of physical force against the person of

another.’” 608 F.3d at 671 (quoting then-effective U.S.S.G § 2L1.2 app. N.1(B)(iii)). But see

United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010)(noting that, although comment 1 to

U.S.S.G § 4B1.2 lists “aggravated assault” as a crime of violence, South Carolina’s crime of

assault and battery of a high and aggravated nature was not categorically a crime of violence

because it did not involve the same elements as generic aggravated assault).

2.

Enumerated Offenses.

In Taylor v. United States, 495 U.S. at 575, the case in which the Supreme Court

endorsed the “categorical approach,” the question was whether the word “burglary” -- one of the

ACCA’s enumerated offenses -- required a “uniform definition independent of the labels

employed by the various States’ criminal codes.” 495 U.S. at 592. The Supreme Court held that

an offense constitutes “burglary” under § 924(e) if, regardless of its exact definition, it has the

basic elements of a “generic” burglary -- i.e., an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to commit a crime -- or if the charging

paper and jury instructions required the jury to find all the elements of generic burglary to

convict the defendant. 495 U.S. at 599. The Supreme Court concluded that Congress used the

word “burglary” in “the generic sense in which the term is now used in the criminal codes of

most States.” 495 U.S. at 589, 598 (“It seems to us implausible that Congress intended the

meaning of ‘burglary’ for purposes of § 924(e) to depend on the definition adopted by the State

of conviction.”). The Supreme Court explained:

The convicting State’s definition of “burglary” cannot control the word’s meaning

under § 924(e), since that would allow sentence enhancement for identical

conduct in different States to turn upon whether the particular States happened to

call the conduct “burglary.” That result is not required by § 924(e)’s omission of

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a “burglary” definition contained in a prior version of the statute absent a clear

indication that Congress intended by the deletion to abandon its general approach

of using uniform categorical definitions for predicate offenses. “Burglary” in §

924(e) must have some uniform definition independent of the labels used by the

various States’ criminal codes.

Taylor v. United States, 495 U.S. at 575. See United States v. Silva, 608 F.3d at 666 (applying

the modified categorical approach “to determine ‘the character of [Silva’s] admitted

burglary’”)(citation omitted); United States v. Terrell, 593 F.3d 1084, 1091 (9th Cir.

2010)(applying the categorical and modified categorical approaches “to compare [the

defendant’s] prior burglary offenses to the ‘generic’ definition of burglary set forth in Taylor”);

United States v. Juarez-Galvan, 572 F.3d 1156, 1159 (10th Cir. 2009)(stating that it “must

consider ‘the uniform generic definition[s]’ of [kidnaping and robbery, enumerated in § 2L1.2],

and then determine whether the state statute[s] correspond[] to that generic definition”).

ANALYSIS

Alires, who pled guilty to being a Felon in Possession of a Firearm, in violation of 18

U.S.C. § 922(g)(1), argues that he does not have at least three prior convictions for a violent

felony making him an armed career criminal who is subject to an enhanced sentence under the

ACCA. The three prior convictions that the USPO recommends qualify as violent felonies for

the ACCA’s enhancement were for New Mexico residential burglary.

Because the Court

concludes that the term “dwelling house,” as it is used in the New Mexico residential burglary

statute, NMSA 1978, § 30-16-3(A), does not proscribe broader conduct than does the ACCA’s

generic enumerated offense of burglary, which itself proscribes unlawful entry into a “building

or other structure,” it will overrule the Objections and apply the ACCA’s enhancement pursuant

to 18 U.S.C. § 924(e)(1).

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I.

THE COURT WILL APPLY THE ACCA ENHANCEMENT, BECAUSE NEW

MEXICO’S RESIDENTIAL BURGLARY QUALIFIES AS A VIOLENT FELONY

FOR THE PURPOSES OF THE ACCA’S ENUMERATED CLAUSE.

The ACCA mandates a fifteen-year minimum sentence for defendants, such as Alires,

who violate 18 U.S.C. § 922(g) and who also have three qualifying violent felony or serious drug

convictions. See 18 U.S.C. § 924(e)(1). The statutory maximum is ten years should an offender

not have three qualifying violent felony or serious drug convictions. 18 U.S.C. § 924(a)(2). The

ACCA defines “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

(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)(strikethrough added representing the ACCA’s

residual clause, which the Supreme Court of the United States found unconstitutional in Johnson

v. United States, 135 S. Ct. 2551, 2557 (2015)). Here, Alires pled guilty to a charge of violating

18 U.S.C. § 922(g), and the PSR represents that Alires has four prior convictions for New

Mexico residential burglary, NMSA 1978, § 30-16-3(A). See PSR ¶13, at 4. New Mexico’s

residential burglary statute provides:

Burglary.

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,

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watercraft, aircraft or other structure, movable or immovable, with

intent to commit any felony or theft therein is guilty of a fourth

degree felony.

NMSA 1978, § 30-16-3. At the outset, the plain language of New Mexico’s residential burglary

statute makes no suggestion that its proscription “has as an element the use, attempted use, or

threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).

The determination whether Alires’ convictions for New Mexico residential burglary constitute

violent felonies under the ACCA, then, rests upon the potential application of the ACCA’s

enumerated clause. See 18 U.S.C. § 924(e)(2)(B)(ii).

The ACCA’s enumerated clause provides that an underlying felony conviction is a

“violent felony” if it “is burglary, arson, or extortion, [or] involves use of explosives.” 18 U.S.C.

§ 924(e)(2)(B)(ii). When considering whether a conviction is a qualifying violent felony under

the ACCA’s enumerated clause, courts -- by applying what is either known as the categorical

approach or the modified categorical approach -- compare the elements of the crime of

conviction with the elements of the “generic” version of the listed offense. Descamps v. United

States, 133 S. Ct. at 2281. For the purposes of a court’s comparison of the crime of conviction

with the generic version of the listed offense, a prior conviction will qualify under the

enumerated clause only if its elements are the same as, or narrower than, those of the generic

offense -- here, that offense being burglary. See Descamps v. United States, 133 S. Ct. at 228;

Mathis v. United States, 136 S. Ct. at 2247. Courts must look to state law for the definition of

the crime of conviction’s substantive elements, United States v. Harris, 844 F.3d 1260, 1264

(10th Cir. 2017), and federal law for the definition and scope of the ACCA’s enumerated

offenses, see United States v. Harris, 844 F.3d at 1264; United States v. Rivera-Oros, 590 F.3d

1123, 1126 (10th Cir. 2009).

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The categorical approach to comparing the elements of the crime of conviction with the

enumerated offenses requires the Court consider only whether the elements of the crime of

conviction sufficiently match the elements of the generic offense, ignoring the particular facts of

the case. See Mathis v. United States, 136 S. Ct. at 2248. Should the underlying statute of

conviction “sweep[] more broadly than the generic crime,” the prior conviction is not a

qualifying violent felony under the ACCA’s enumerated clause, irrespective of an analysis

whether the defendant’s actual conduct when committing the crime appears to qualify under the

generic definition of an enumerated clause offense. Descamps v. United States, 133 S. Ct. at

2283. With respect to the enumerated offense bearing the closest resemblance to Alires’ crimes

of conviction, Taylor v. United States sets forth the generic definition of the ACCA’s

enumerated offense of burglary.

“Although the exact formulations vary, the generic,

contemporary meaning of burglary contains at least the following elements: an unlawful or

unprivileged entry into, or remaining in, a building or other structure, with intent to commit a

crime.” Taylor v. United States, 495 U.S. at 598. Again, New Mexico’s Residential Burglary

statute provides:

Burglary.

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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NMSA 1978, § 30-16-3. This statute -- § 30-16-3 as a whole -- does not fit neatly into the

purviews of the categorical approach, because it outlaws multiple items of conduct, which

sweeps more broadly than the generic enumerated offense of burglary.

There is, however, also a “modified” categorical approach, which the Court applies in the

case of a state statute which has a complicated or complex -- and not generic -- structure, such as

New Mexico’s residential burglary statute replicated supra. Descamps v. United States, 133 S.

Ct. at 2283. The “modified” categorical approach is applied where the statute is “divisible” -meaning that it contains multiple alternative elements and thus defines multiple crimes.

Descamps v. United States, 133 S. Ct. at 2281. When a statute defines multiple crimes by listing

alternative elements in that fashion, courts undertake this “modified” categorical approach so

they can determine which of the multiple alternative elements listed in the statute are applicable

to the convicted defendant’s case. See Descamps v. United States, 133 S. Ct. at 2281. Here, §

30-16-3(A) and § 30-16-3(B) constitute divisible alternative elements, requiring application of

the “modified” categorical approach. Cf. Mathis v. United States, 136 S. Ct. at 2256 (“If

statutory alternatives carry different punishments, then . . . they must be elements.”). Should the

Court apply the modified categorical approach, the Court must look to the record of Alires’

convictions for residential burglary to determine what crimes under § 30-16-3, and with what

elements, he has been convicted, and then compare the elements of that crime -- as the

categorical approach commands -- with the elements of the relevant generic offense.

See

Descamps v. United States, 133 S. Ct. at 2281.

Here, Alires argues the modified categorical approach should not be applied -- that is, the

Court need not look at the factual elements of Alires’ convictions, because he contends that he

has been convicted of § 30-16-3(A), which is a standalone statute from § 30-16-3(B). See Tr. at

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24:22-25:6 (Keefe).

Ostensibly, Alires fears that the Court will consult the record of the

“charging documents and documents of conviction” and ascertain that he, in fact, burglarized

traditional residential homes, which fall within the purviews of the ACCA’s generic enumerated

of burglary. See United States v. Silva, 608 F.3d at 668. This concern, the Court infers, is why

Alires argues strongly that the Court should apply only the categorical approach as it applies to §

30-16-3(A) and not, hypothetically, risk importing the facts of the charging documents and

documents of conviction into the Court’s analysis. Cf. Tr. at 24:22-25:6 (Keefe)(“I think the

argument set forth in the reply I guess view that more the section A as its own stand alone statute

that is the basis of these convictions, and within that statute we’re still arguing that . . . the

residential burglary within section A is, sweeps more broadly than the generic definition so there

is no concern about the divisibility of the statute, because we’re not even considering Section B

in terms of the actual conviction in this case.”). Were it evidently clear from the record that

Alires was convicted under § 30-16-3(A), and not § 30-16-3 generally, the Court would agree

with Alires that it could jump straight to an application of the categorical approach. It is not,

however, so clear. See PSR ¶ 13, at 4. Still, the Court’s independent investigation into Alires’

charging documents and documents of conviction for his residential burglary convictions

confirms that the divisible element of the statute under which Alires was convicted is § 30-163(A),6 and not more broadly the § 30-16-3. All of this observation is to say that Alires’ argument

6

The United States cited United States v. Blair at the hearing, which provides that:

Blair tries to make of Descamps something it is not. He notes that, although the

Pennsylvania robbery statute as a whole is divisible, some of its subsections can

be viewed as indivisible and overbroad. . . . Given the clearly laid out alternative

elements of the Pennsylvania robbery statute, it is obviously divisible and,

therefore, a sentencing court can properly look to the kinds of documents listed by

the Supreme Court in Taylor and Shepard to determine which subsection was the

basis of Blair's prior convictions.

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is right, yet it is also a red herring. The Court’s modified categorical approach analysis of

Alires’ § 30-16-3 convictions simply proceeds as follows: because Alires was convicted four

times for residential burglary, New Mexico’s burglary statute is divisible, the PSR describes his

convictions as relating to his burglarization of standard residential homes, see PSR ¶ 31, at 6; id.

¶ 34 at 8; id. ¶ 38, at 10; id. ¶ 40, at 11-12, and because the Court’s review of the charging

documents and documents of conviction confirms that Alires was convicted of the elements

enumerated by NMSA 1978 § 30-16-3(A), Alires’ offense of conviction is: “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.” The Court must thus compare those elements of the statute

leading to Alires’ crimes of conviction with the generic enumerated offense of burglary under the

ACCA, and should the specific provision of the underlying statute of conviction “sweep[] more

broadly than the generic crime,” the prior conviction is not a qualifying violent felony under the

ACCA’s enumerated clause. Descamps v. United States, 133 S. Ct. at 2283. The Court does not

import the factual predicate of Alires’ convictions beyond its threshold determination whether

Alires was convicted under § 30-16-3(A) or (B).

The Court is thus left with having to analyze whether NMSA 1978 § 30-16-3(A)’s

breadth -- Alires’ offense of conviction -- outpaces that of the generic enumerated burglary

offense. Compare NMSA 1978 § 30-16-3(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.”), with Taylor v. United States, 495 U.S. at 598 (“Although the exact formulations vary,

the generic, contemporary meaning of burglary contains at least the following elements: an

743 F. 3d at 224-25. The Court considers that scenario applicable to this case, and concludes

that the New Mexico burglary statute is divisible.

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unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to

commit a crime.”). The only distinguishing feature in the language that comprises the two

crimes crystallizes as entry into a “dwelling house,” versus entry into “a building or other

structure.” The Court must first identify the generic enumerated burglary offense’s scope, and

then ascertain whether it subsumes, or is subsumed by, New Mexico’s residential burglary

statute in light of that statute’s use of the term “dwelling house.”

A building or other structure does not include certain “places . . . other than buildings,”

such as vending machines, booths, tents, automobiles, boats, vessels and railroad cars. Taylor v.

United States, 495 U.S. at 599. The Supreme Court has also held that the term “other structure”

is limited to an “enclosed space,” indicating that “the scope of generic burglary would

encompass not only those spaces that are designed for occupancy and intended for use in one

place, but also other, potentially less complete ‘enclosed spaces,’ so long as they do not resemble

a boat, motor vehicle, or other mode of transportation.” United States v. Ramon Silva, 608 F.3d

663, 668 (10th Cir. 2010)(citing Shepard v. United States, 544 U.S. 13, 15-16 (2005)). Further,

the Supreme Court has held and reiterated that generic burglary does not include the burglary of

“vehicles.” Shepard v. United States, 544 U.S. at 15-16 (concluding that generic burglary is

limited to burglaries “committed in a building or enclosed space . . . , not in a boat or motor

vehicle”). See Mathis v. United States, 136 S. Ct. at 2250 (concluding that an Iowa statute was

overbroad where it reached “any building, structure, [or] land, water, or air vehicle” (alteration in

original)(internal quotation marks omitted)). In United States v. Spring, however, the United

States Court of Appeals for the Tenth Circuit held that generic burglary encompassed the

burglary of a “mobile home or vehicle adapted for the overnight accommodation of persons.”

United States v. Spring, 80 F.3d 1450, 1462 (10th Cir. 1996)(internal quotation marks omitted).

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The Tenth Circuit was primarily concerned with the difference between burglary of a building

and burglary of a car -- burglary of buildings and structures like residential homes poses a risk of

violence to the occupants of the house or other structure, see United States v. Spring, 80 F.3d at

1462, whereas burglary of a vehicle, is more akin to simple property crime, posing a less severe

risk of violent confrontation, see United States v. Spring, 80 F.3d at 1462. The burglary of a

mobile home or a similar structure, therefore, is much more like the burglary of a home than it is

to the burglary of a vehicle, bringing it under the purview of generic burglary. See United States

v. Spring, 80 F.3d at 1462. Cf. United States v. Silva, 608 F.3d at 668 (defining generic burglary

as “coterminous” with a state statute that prohibits burglary of “a building or other place

designed to provide protection for persons or property against weather or intrusion,” but that

does not include “vehicles or other conveyances whose primary purpose is transportation”

(emphasis added)(internal quotation marks omitted)). Such defines the scope of the enumerated

generic offense of burglary in the Tenth Circuit, a considerably more expansive scope than for

which Alires has argued, because United States v. Spring, 80 F.3d at 1462, calls “generic” the

burglary of a mobile home or a similar structure that is operatively more akin to the burglary of a

home than it is to the burglary of a vehicle. United States v. Silva, 608 F.3d at 668.

Given what the generic burglary offense proscribes, the Court is left with determining

what scope the term “dwelling house” encompasses. Alires’ essential request of the Court is a

conclusion that “dwelling house” includes “places, such as vehicles, watercraft, aircraft and

similar structures,” which the generic enumerated burglary offense does not encompass, thus

“tak[ing] New Mexico residential burglary outside the bounds of generic burglary.” Reply at 6.

When comparing New Mexico residential burglary with generic burglary, as that offense has

been outlined above, the Court is mindful of the Supreme Court’s mandate that there must be “‘a

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realistic probability, not a theoretical possibility, that the State would apply its statute to conduct

that falls outside the generic definition of a crime.’” United States v. Silva, 608 F.3d at 666 n.2

(quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). Such analysis “requires more

than the application of legal imagination to a state statute’s language.” Gonzales v. DuenasAlvarez, 549 U.S. at 193. New Mexico residential burglary is not as broad as Alires asserts, nor

is it susceptible to the interpretation that Alires urges the Court to accept. Rather, as the Court

will explain, a plain-text reading of the statute, the Supreme Court’s decision in Mathis v. United

States and New Mexico’s state court decisions interpreting burglary of a “dwelling house”

counsel a conclusion that New Mexico residential burglary does not include, for example,

movable structures as Alires contends. Further, as the Court has explained, the Tenth Circuit has

not construed generic burglary as narrowly as Alires contends, guiding the Court’s following

analysis.

Ultimately, Alires’ argument is rooted in the fact that UJI 14-1631 NMRA defines

“dwelling house” as “any structure, any part of which is customarily used as living quarters.”

State v. Ross, 1983-NMCA-065, ¶ 11, 665 P.2d 310. Thus, Alires argues, the act of habitation

defines a “dwelling house.” The Supreme Court of New Mexico has not, as of yet, interpreted

that language in such an expansive fashion which moves beyond generic burglary’s scope, a

scope that -- in the Tenth Circuit -- rests the relevant distinction upon whether the building or

structure has a primary purpose of transportation. See United States v. Ramon Silva, 608 F.3d at

668. No New Mexico court has considered what “any structure, any part of which is customarily

used as living quarters,” as the UJI uses that language, might entail.7 Alires would win if all

7

The Supreme Court of New Mexico’s adoption of uniform jury instructions proposed by

standing committees of the court establishes a presumption that the instructions are correct

statements of law. See State v. Wilson, 1994-NMSC-009, ¶ 5, 867 P.2d 1175, 1178.

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vehicles with inhabitants could constitute “dwelling houses.” In State v. Ervin, however, the

Court of Appeals of New Mexico Court considered that a burglarized house was a “dwelling

house” under § 30-16-3(A), because that defendant could not establish that the house’s previous

occupant “had abandoned the house or had no intention of returning.” 1981-NMCA-068, ¶¶ 1, 4,

630 P.2d 765. Indeed, the Court of Appeals of New Mexico cited with approval the commonlaw rule that “a building is not a dwelling before the first occupant has moved in; nor does it

continue to be a dwelling after the last occupant has moved out with no intention of returning.”

1981-NMCA-068, ¶ 3, 630 P.2d 765.

State v. Ervin thereby suggests that New Mexico

residential burglary concerns only those structures that lend themselves to occupancy over some

fixed period of time, and not just brief or fleeting habitation. See 1981-NMCA-068, ¶ 3, 630

P.2d 765. See also State v. Lara, 1978-NMCA-112, ¶¶ 4-5, 587 P.2d 52 (holding that a garage

attached to a residence but from which there was no direct access to the interior of the house was

a “dwelling house” under the residential burglary statute “because the garage was a part of the

structure used as living quarters”).

In State v. Ruiz, 1980-NMCA-123, 617 P.2d 160, superseded by statute on other grounds

as stated in State v. McCormack, 1984-NMCA-042, ¶ 12, the Court of Appeals of New Mexico

addressed the meaning of “dwelling house” in the context of holding that criminal trespass is a

lesser included offense of residential burglary. See State v. Ruiz, 1980-NMCA-123, ¶¶ 40-46,

617 P.2d 160. The Court of Appeals of New Mexico stated “[t]he offense charged was burglary

of a dwelling house; thus, we are not concerned with vehicles, watercraft or aircraft, or other

structures.” 1980-NMCA-123, ¶ 39, 617 P.2d 160. Next, in comparing that case’s specific facts,

which entails analysis of the respective locational elements of residential burglary (entry of a

“dwelling house”) and criminal trespass (entry of “lands of another”), the Court of Appeals of

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New Mexico held that trespass is a lesser included offense of residential burglary because entry

of a dwelling house necessarily means entry “upon the lands of another.” See 1980-NMCA-123,

¶ 45, 617 P.2d 160 (internal quotation marks omitted). “Lands,” the Court of Appeals of New

Mexico stated, “includes buildings and fixtures, and is synonymous with real property.” 1980NMCA-123, ¶ 45, 617 P.2d 160 (internal quotation marks omitted). “When one enters another’s

dwelling house, . . . one has entered lands of another.” 1980-NMCA-123, ¶ 45, 617 P.2d 160.

The Court of Appeals of New Mexico was careful to note that “[t]his reasoning, of course, would

not apply if the burglary was of a vehicle, watercraft or aircraft.” 1980-NMCA-123, ¶ 45, 617

P.2d 160. The Court of Appeals of New Mexico, in State v. Ruiz, thus surmised that the

locational element of residential burglary excludes vehicles and the like, and is limited to fixed

structures. See 1980-NMCA-123, ¶ 45, 617 P.2d 160. NMSA 1978, § 30-16-3(A) is thus not

susceptible to the broad interpretation that Alires’ request espouses -- that the Court conclude

that “dwelling house” includes “places, such as vehicles, watercraft, aircraft and similar

structures.” Reply at 6.

Such an interpretation is further undercut by the New Mexico Legislature’s choice to

include in its enunciation of a burglary offense NMSA 1978, § 30-16-3(B), which provides:

“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.” NMSA 1978, § 30-16-3(B). Indeed, Alires relies heavily on a Court of

Appeals of New Mexico’s consideration of § 30-16-3(B) to argue for this Court’s expansive

interpretation of § 30-16-3(A). See Objections at 2 (citing State v. Foulenfont, 1995-NMCA028, 895 P.2d 1329). The New Mexico Legislature, clearly intended, however, to proscribe the

entry into a “dwelling house” in a distinct fashion from its proscription of entry into “any

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vehicle, watercraft, aircraft or other structure, movable or immovable,” making the former a

third-degree felony and the latter a fourth-degree felony. NMSA 1978, § 30-16-3(A)-(B). The

Court concludes that, by making unlawful two distinct events, NMSA 1978, § 30-16-3(A) must

be restricted to its plain language, which refers to burglary only of a “dwelling house,” and does

not refer to burglary of vehicles, watercrafts, and aircrafts. NMSA 1978, § 30-16-3(A).

As to the specific structures of what a “dwelling house” may be, given that the UJI

defines that term as “any structure, any part of which is customarily used as living quarters,”

State v. Ross, 1983-NMCA-065, ¶ 11, 665 P.2d 310, the Court is convinced that the Supreme

Court of New Mexico would be persuaded by the Court of Appeals of New Mexico’s suggestion

in State v. Ruiz, 1980-NMCA-123, ¶ 45, 617 P.2d 160, during its analysis of what a “dwelling

house” may be in comparison to the “lands” of another, that its “reasoning, of course, would not

apply if the burglary was of a vehicle, watercraft or aircraft.” 1980-NMCA-123, ¶ 45, 617 P.2d

160. The Court concludes that the Supreme Court of New Mexico would not read NMSA 1978,

§ 30-16-3(A) in a fashion which swallows the distinct nature of NMSA 1978, § 30-16-3(B) by

including as a “dwelling house” places “such as vehicles, watercraft, aircraft and similar

structures.” Reply at 6.

Further, given the dual nature of New Mexico’s burglary statute, the Court is confident

there is no realistic probability that the Supreme Court of New Mexico would apply the

residential burglary statute to a locational element outside the ACCA’s enumerated generic

burglary offense. It is clear that generic burglary excludes the burglary of “vehicles” with the

primary purpose of transportation.

Accordingly, we held that a state burglary statute that proscribed the unauthorized

entry of a building or other place designed to provide protection for persons or

property against weather or intrusion, but does not include vehicles or other

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conveyances whose primary purpose is transportation was coterminous with the

generic definition of burglary.

United States v. Silva, 608 F.3d at 668 (internal quotation marks omitted). Cf. Shepard v. United

States, 544 U.S. at 15-16 (holding that generic burglary is limited to burglaries “committed in a

building or enclosed space . . . , not in a boat or motor vehicle”). It is not clear, however, that the

Supreme Court of New Mexico would extend the notion of “dwelling house” beyond the same

boundaries of the generic burglary offense -- meaning that the Supreme Court of New Mexico is

not likely to conclude, for example, that a vehicle with the primary purpose of transportation,

like a motor home or trailer, constitutes a “dwelling house.” Indeed, as the Court has referenced,

the Court of Appeals of New Mexico has suggested there is a distinction between a “dwelling

house” and a vehicle, State v. Ruiz, 1980-NMCA-123, ¶ 45, 617 P.2d 160, causing the Court to

conclude that the Supreme Court of New Mexico would similarly choose to limit its

interpretation of NMSA 1978, § 30-16-3(A) to adhere to the distinct nature of the burglary

offenses the New Mexico Legislature proscribes in accordance with the relevant privacy interests

at stake. The Court notes that, while the “liberal” and generous thing to do for Alires and other

federal criminal defendants and prisoners might, at first glance, appear to be to conclude the way

that Alires asks the Court to interpret New Mexico’s residential burglary statute, a little

reflection makes clear that Alires’ proffered interpretation would prejudice the vast majority of

criminal defendants -- probably state defendants. Alires’ interpretation would vastly expand the

scope of a third-degree felony, thereby making crimes that are now fourth-degree felonies into

third-degree felonies. Because the Court thus sees no realistic probability that the Supreme

Court of New Mexico would blur the plain language of New Mexico’s residential burglary

statute in that fashion, the Court concludes that NMSA 1978, § 30-16-3(A) is the same as, or

narrower than, those of the generic offense -- here, that offense being burglary. See Descamps v.

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United States, 133 S. Ct. at 228. The Court will apply the ACCA’s enhancement in this case and

overrule Alires’ Objections, because Alires has three qualifying convictions which constitute

violent felonies under the ACCA’s enumerated clause.

IT IS ORDERED that the Defendant’s Objections to Presentence Report, filed March

22, 2017 (Doc. 33), is overruled.

The Court will apply the ACCA’s enhancement when

imposing Defendant Alires’ sentence.

________________________________

UNITED STATES DISTRICT JUDGE

Counsel:

Damon P. Martinez

United States Attorney

David M. Walsh

Assistant United States Attorney

Albuquerque, New Mexico

Attorneys for the Plaintiff

Michael Keefe

Assistant Federal Public Defender

Office of the Federal Public Defender

Albuquerque, New Mexico

Attorneys for the Defendant

- 36 38a

No.______

In the

SUPREME COURT OF THE UNITED STATES

JOE RAY ALIRES, Petitioner

v.

UNITED STATES OF NEW MEXICO, Respondent

On Petition for Writ of Certiorari to

the United States Court of Appeals for the Tenth Circuit

Certificate of Service

I, Stephen P. McCue, hereby certify that on January 4, 2019, a

copy of the petitioner’s Motion for Leave to Proceed in Forma

Pauperis and Petition for Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit were mailed postage prepaid,

to the Solicitor General of the United States, Department of Justice,

Room 5614, 950 Pennsylvania Avenue, N.W., Washington, D.C.

20530-0001, counsel for the Respondent.

Respectfully submitted,

STEPHEN P. MCCUE

Federal Defender

DATED: January 4, 2019

s/ Stephen P. McCue

Stephen P. McCue

Federal Defender

Attorney for the Petitioner

Counsel of Record

Office of the Federal Defender

District of New Mexico

111 Lomas Blvd., NW, Suite 501

Albuquerque, N.M. 87102

Telephone: (505) 346-2489

Facsimile: (505) 346-2494

E-mail: stephen_mccue@fd.org