Petition for Writ of Certiorari — Albert Martinez, Petitioner v. United States

Supreme Court briefSep 18, 2020

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No.______

In the

SUPREME COURT OF THE UNITED STATES

ALBERT MARTINEZ, Petitioner

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

Alonzo Padilla

Assistant 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: alonzo_padilla@fd.org

Questions Presented

1. Whether the definition of force adopted in Stokeling for robbery

eschews a requirement that any fear produced by a threat of force be

reasonable?

2. Whether a court may cherry-pick facts to establish a threshold

level of force sufficient for Armed Career Criminal Act (ACCA)

purposes and evade examining the elements of the statute?

3. Whether a conviction for residential burglary under New Mexico

law which allows for a conviction where as long as someone uses a

non-residential structure (including cars) as a dwelling, falls within

the generic crime of burglary in the Armed Career Criminal Act

(ACCA)?

Table of Contents

Questions Presented ...................................................................... i

1. Whether the definition of force adopted in Stokeling for robbery

eschews a requirement that any fear produced by a threat of

force be reasonable? ....................................................................... i

2. Whether a court may cherry-pick facts to establish a threshold

level of force sufficient for Armed Career Criminal Act (ACCA)

purposes and evade examining the elements of the statute? ....... i

3. Whether a conviction for residential burglary under New

Mexico law which allows for a conviction where as long as

someone uses a non-residential structure (including cars) as a

dwelling, falls within the generic crime of burglary in the

Armed Career Criminal Act (ACCA)? ........................................... i

II.

Table of Authorities ..................................................................... iv

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

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

Pertinent law ..................................................................................... 2

III.

Factual Background ..................................................................... 4

IV.

Reasons for Granting the Writ ..................................................... 5

A. The Tenth Circuit ignored this Court’s definition of force

necessary for robbery. ................................................................... 5

B. The Tenth Circuit cherry-picked facts to establish New Mexico

Robbery requires a threshold level of force sufficient for ACCA

purposes and evades examining the elements of New Mexico’s

Robbery statute as required by the categorical approach. ........ 14

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

Ann. § 30-16-3(A), which allows for a conviction where as long

as someone uses a non-residential structure (including cars) as

a dwelling, falls within the generic crime of burglary in the

Armed Career Criminal Act (ACCA), 18 U.S.C. §

924(e)(2)(B)(ii)? ........................................................................... 17

Conclusion ................................................................................... 20

Appendix:

United States v. Martinez,

802 Fed. Appx. 421 (10th 2020) ........................................................ 001A

iii

II.

Table of Authorities

Cases

Birdsong v. Com., 347 S.W.3d 47 (Ky. 2011) .......................................... 16

Descamps v. United States, 570 U.S. 254 (2013) .................... 8, 17, 19, 20

Johnson v. United States, 559 U.S. 133 (2010) (Johnson I) ........... 7, 8, 11

Johnson v. United States, 576 U.S. 591 (2015) (Johnson II) .................. 19

Klikno v. United States, 928 F.3d 539 (7th Cir. 2019).............................. 9

Mathis v. United States, 136 S.Ct.2243 (2016) ................................. 20, 22

Maul v. State, 467 N.E.2d 1197 (Ind. 1984)............................................ 15

People v. Thomas, 509 P.2d 592 (Co. 1973) ............................................ 14

SAS Institute, Inc. Iancu, 138 S. Ct. 1348 (2018) ................................... 24

State v. Barela, 2018 WL 4959122 (N.M. Ct. App. 2018) (unpub.) ........ 14

State v. Hearns, 961 So.2d 211 (Fla. 2007) ............................................... 7

State v. Hudson, 430 P.2d 386 (N.M. 1967) ............................................ 24

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

.............................................................................................................. 23

State v. Wilson, 867 P.2d 1175 (N.M. 1994)............................................ 24

Stokeling v. United States, 139 S. Ct. 544 (2019) ........................... passim

Taylor v. United States, 495 U.S. 575 (1990)...................................... 6, 21

United States v. Burris, 920 F.3d 942 (5th Cir 2019) ............................... 9

United States v. Dinkins, 928 F3d 349(4th Cir. 2019) ............................. 8

United States v. Duncan, 833 F.3d 751 (7th Cir. 2016).......................... 15

Cases continued

United States v. Garcia, 877 F.3d 944 (10th Cir. 2017) ......................... 17

United States v. Gonzales, 520 U.S. 1 (1997).......................................... 24

United States v. Harris, 844 F.3d 1260 (10th Cir. 2017)........................ 14

United States v. Ojeda, 951 F.3d 66 (2d Cir. 2020) .................................. 8

United States v. Starks, 861 F.3d 306 (1st Cir. 2017) .............................. 8

United States v. Stitt, 139 S. Ct. 3994 (2018) ................................... 21, 25

United States v. Turrieta, 875 F.3d 1340 (10th Cir. 2017) ............... 22, 23

United States v. Velasquez, 810 F. App’x 655 (10th Cir. 2020) .......... 6, 11

Statutes

18 U.S.C. 924(e) ............................................................................... passim

28 U.S.C. § 1254(1) .................................................................................... 2

Ga. Code Ann. § 16-8-40 .......................................................................... 10

Idaho Code Ann. § 18-6501 ..................................................................... 11

Ind. Code Ann. § 35-42-5-1 ...................................................................... 11

Ky. Rev. Stat. Ann. § 515.030 ........................................................... 11, 14

N.M. Stat. Ann. § 30-16-3 ................................................................. 17, 20

Neb. Rev. Stat. Ann. § 28-324 ................................................................. 11

Rules

NMRA Crim. UJI 14-1631 .................................................................. 3, 20

Treatises

W. Clark & W. Marshall, Law of Crimes (H. Lazell ed., 2d ed. 1905) .... 9

In the

SUPREME COURT OF THE UNITED STATES

ALBERT MARTINEZ, Petitioner

UNITED STATES OF AMERICA, Respondent

Petition for Writ of Certiorari

Albert Martinez 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. Martinez, Case No.

19-2046 was not published. 1 The district court did not enter an order

denying Mr. Martinez contention his previous convictions under New

Mexico law for Robbery and Burglary were not violent felonies; instead,

the court sentenced him to 180 months, tacitly denying his contentions.

App. 001A. “App.” refers to the attached appendix.

Statement of Jurisdiction

On April 22, 2020, the Tenth Circuit held that Mr. Martinez’s

previous convictions under New Mexico law for burglary and robbery

qualified as predicate violent offenses under ACCA. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

Pertinent law

18 U.S.C. §§ 924. Penalties

(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; 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 [.]

N.M. Stat. Ann. § 30-16-2. Robbery

Robbery consists of the theft of anything of value from the person of

another or from the immediate control of another, by use or

threatened use of force or violence.

N.M. Stat. Ann. § 30-16-3. 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.

NMRA Crim. UJI 14-1631

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

customarily used as living quarters.

III. Factual Background

Mr. Martinez’s driveway was blocked. (It is unclear from the

record who called the police about the vehicle blocking the driveway)

When police responded they noticed a Cadillac Escalade in the backyard

and asked Mr. Martinez about it; as he was renting the house, he did

not know anything about the vehicle blocking his driveway. Police

followed him into the house as he retrieved contact information for his

landlord. The police did not see anything suspicious in their trek

through the house. But the police decided to “run” Mr. Martinez

information anyway. They discovered he had an outstanding warrant

for a violation of supervised release because he consumed alcohol. Police

arrested Mr. Martinez. They discovered an unloaded gun in his right leg

cargo pocket. The Government charged him with being a felon in

possession. Because Mr. Martinez had prior convictions in New Mexico

State court for robbery and burglary, the court sentenced him to fifteen

years under the Armed Career Criminal Act2 (ACCA).

Mr. Martinez disagreed his convictions under New Mexico law for

Robbery and Burglary counted as predicate violent felonies under

2 18 U.S.C. 924(e)

ACCA. The district court did not enter any order specifically denying

Mr. Martinez’s objections but sentenced him to 180 months, an ACCA

sentence. Mr. Martinez appealed; the Tenth Circuit entered a

perfunctory order denying his claims.

IV.

Reasons for Granting the Writ

This Court should grant certiorari for three reasons. First, the

Tenth Circuit ignored the limits this Court placed on the force required

to commit robbery by failing to differentiate between actual and

constructive force. Second, the Tenth Circuits circumvents this Court’s

requirement that the categorical approach examine the elements of the

underlying crime and not the facts. Lastly, this case squarely presents

the question left unanswered in United States v. Stitt, 139 S. Ct. 399

(2018): whether use alone transforms any structure into the type of

location protected by the generic crime of burglary.

The Tenth Circuit ignored this Court’s definition of

force necessary for robbery.

The Tenth Circuit declared, “Although Stokeling 3 held that ACCA

force encompasses the common law, it did not limit ACCA force to the

common law.” United States v. Velasquez, 810 F. App’x 655, 659 (10th

Cir. 2020). But this is exactly what Stokeling did – define the limits of

force used in Robbery for ACCA. The Tenth Circuit’s disdain for the

limits set forth in Stokeling creates a misunderstanding of what

amount of force needs to be threatened to qualify as an ACCA violent

felony under the force clause.

To determine if a prior conviction qualifies as a violent felony

under ACCA courts use the categorical approach. Taylor v. United

States, 495 U.S. 575, 600 (1990). The court first determines the generic

definition of the offense at issue. Taylor, 495 U.S. at 598. For

convictions implicating the force clause, the “meaning of ‘physical force’

in § 924(e)(2)(B)(i) is a question of federal law.” Johnson v. United

States, 559 U.S. 133, 138 (2010) (Johnson I).

Johnson I determined whether a Florida conviction for battery,

which followed the common law as “any intentional physical contact, ‘no

matter how slight,’” qualified as a violent felony. 559 U.S. at 138, 130

3 Stokeling v. United States, 139 S. Ct. 544 (2019)

S.Ct. 1265, quoting State v. Hearns, 961 So.2d 211, 218 (Fla. 2007)

(emphasis in original). Johnson I eschewed the common law definition

of force for ACCA and held “the phrase ‘physical force’ means violent

force—that is, force capable of causing physical pain or injury to

another person.” Id. at 140 (emphasis in original).

The categorical approach requires the reviewing court to identify

the minimal criminal conduct necessary for a conviction. When “the

[state] statute sweeps more broadly than the generic crime, a conviction

under that law cannot count as an ACCA predicate.” Descamps v.

United States, 570 U.S. 254, 261 (2013). So too with a state law that

defines force more broadly than the federal definition of force. Johnson

I, 559 U.S. 133.

Thus far, the majority of cases examining whether a prior robbery

conviction counts as a violent felony under ACCA only looked at actual

physical force necessary. See e.g. United States v. Starks, 861 F.3d 306

(1st Cir. 2017) (holding Massachusetts’s robbery is not a violent felony

for ACCA under physical force clause); United States v. Ojeda, 951 F.3d

66 (2d Cir. 2020) (holding prior New York first-degree robbery

conviction was predicate violent felony under physical force clause of

ACCA); United States v. Dinkins, 928 F3d 349(4th Cir. 2019) (holding

North Carolina Robbery qualifies as a predicated violent felony under

physical force clause of ACCA); United States v. Burris, 920 F.3d 942

(5th Cir 2019) (holding Texas Robbery under physical force clause of

ACCA); Fullum v. United States, 756 Fed. Appx. 568 (6th Cir. 2018)

(conviction in Ohio for aggravated robbery constituted a violent felony

under ACCA as aggravated robbery could not realistically be committed

without violent force); Klikno v. United States, 928 F.3d 539, 547 (7th

Cir. 2019), cert. denied sub nom. Van Sach v. United States, 140 S. Ct.

878 (2020), and cert. denied sub nom. Lipscomb v. United States, 140 S.

Ct. 878 (2020), and cert. denied, 140 S. Ct. 879, (2020), and cert. denied

sub nom. Browning v. United States, 140 S. Ct. 879 (2020) (noting the

requirement to show “force sufficient to overcome a victim’s resistance,”

is not a demanding one). Stokeling held that the minimum force

required to elevate larceny to robbery was the force required to

overcome the victim’s resistance, explicitly adopting the common law

definition of robbery. 139 S. Ct. at 555 (“the term ‘physical force’ in

ACCA encompasses the degree of force necessary to commit commonlaw robbery”). Stokeling presupposes the use of actual force in robbery,

noting that “robbery that must overpower a victim’s will—even a feeble

or weak-willed victim—necessarily involves a physical confrontation

and struggle.” 139 S. Ct. at 553. Thus, even tearing the strap of a purse

to obtain possession of it comprises robbery. Significantly, the Stokeling

Court emphasized that the “[m]ere ‘snatching of property from another’

will not suffice” to constitute robbery.139 S. Ct. at 555.

Under common law, robbery may be committed in two ways:

actual force and constructive or implied force, i.e. threat. Similarly,

most states allow conviction for robbery upon a showing of constructive

or actual force. The ACCA definition of violent felony also includes

constructive force, penalizing prior felonies that “threatened use of

physical force ….”

Unintentionally Stokeling sowed confusion – for purposes of

Robbery does the threat of a broken purse strap constitute a “threat of

physical force”? Or must “threat of physical force” mean threat of “force

capable of causing physical pain or injury to another person”? Johnson

I, 559 U.S. at 140. The common law provides the answer – “It is not

every threat or menace that will be sufficient to make a case of robbery

…. It must be of such a nature as to excite reasonable apprehension of

danger, and to reasonably …cause a man to surrender his property.” W.

Clark & W. Marshall, Law of Crimes 555 (H. Lazell ed., 2d ed. 1905). In

other words, the threat must be of Johnson I level force. But the Tenth

Circuit passed over the requirement that the fear elicited by the threat

be reasonable.

Instead, the Tenth Circuit, in Velasquez, determined that the only

“pertinent inquiry is whether the threat of force caused the victim to

part with his or her property.” 810 F. App’x at 659. Under this

interpretation, it does not matter if the thief makes a ridiculous threat,

or makes no explicit or implicit threat, as long as the victim perceives a

threat, the thief becomes a robber. The scofflaw who threatens to throw

a butterfly at a victim unless she gives up her umbrella becomes a

robber when the lepidopterophobe gives up her umbrella. The highschool student who obtains another’s lunch money by demanding “give

it to me or else” has also committed robbery. The Tenth Circuit’s

reasoning, that only the fact of the threat causes the victim to part with

her property, regardless of reasonableness of the threat does not rise to

the level of force necessary to allow an ACCA conviction.

But the Tenth Circuit’s decision does follow most State’s

interpretation of their robbery statutes; although exact phrasing may

vary most allow conviction for a threat or “putting in fear.” See e.g. Ga.

Code Ann. § 16-8-40 (A person commits the offense of robbery when,

with intent to commit theft, he takes property of another from the

person or the immediate presence of another: (1) By use of force; (2) By

intimidation, by the use of threat or coercion, or by placing such person

in fear of immediate serious bodily injury to himself or to another…”);

Idaho Code Ann. § 18-6501 (“Robbery is the felonious taking of personal

property in the possession of another, from his person or immediate

presence, and against his will, accomplished by means of force or fear.”);

Ind. Code Ann. § 35-42-5-1 (Robbery accomplished by “(1) by using or

threatening the use of force on any person; or(2) by putting any person

in fear”); Neb. Rev. Stat. Ann. § 28-324 (“A person commits robbery if,

with the intent to steal, he forcibly and by violence, or by putting in

fear, takes from the person of another any money or personal property

of any value whatever.”) And although it would seem clear that a

statute requiring the thief to “threaten[] the immediate use of physical

force upon another person” in order to be convicted of robbery would

require a threat of Johnson I level force, a quick survey of cases reveals

that to be far from the case. See Ky. Rev. Stat. Ann. § 515.030.

The Tenth Circuit held that Colorado’s robbery statute would

constitute a violent felony for ACCA purposes. United States v. Harris,

844 F.3d 1260, 1268 (10th Cir. 2017). Colorado upheld a robbery

conviction where late at night the defendant requested change but then

“altered his expression and demanded all the money in the cash

drawer.” People v. Thomas, 509 P.2d 592, 593 (Co. 1973). The clerk

testified he was afraid because of “the man’s impatience, the

threatening expression on his face,” and the fact he could not see both of

the defendant’s hands. Id. Thus, in the Tenth Circuit’s view,

impatience, a “threatening expression,” and the inability to see the

whole person equals a threat “force capable of causing physical pain or

injury to another person.” Johnson I, 559 U.S. at 140.

In State v. Barela, 2018 WL 4959122 (N.M. Ct. App. 2018)

(unpub.), the New Mexico Court of Appeals affirmed a robbery

conviction although the accused never touched the victim and did not

frighten her. While the victim sat in her parked car in her driveway,

Barela reached through the open door and took her purse. As he was

withdrawing his arm from the car, he told her “just give me your purse

and you won’t get hurt.” She testified that she had no time to be afraid.

Id. at *2. Barela argued this evidence was insufficient to prove Robbery.

The court disagreed. It said Barela’s comment “was enough for the jury

to find that he took the purse by threatened force or violence.” Id. New

Mexico robbery then can be perpetrated with any amount of threatened

force, including by a threat that fails to frighten the victim.

The Seventh Circuit held, “A conviction for robbery under the

Indiana statute qualifies under the still-valid elements clause of the

ACCA definition of violent felony.” United States v. Duncan, 833 F.3d

751, 752 (7th Cir. 2016). But Indiana held that a purse snatching

counted as robbery because “[t]he unexpected use of force directed

against the victim would be sufficient evidence from which the trier of

fact could infer that the victim did experience fear.” Maul v. State, 467

N.E.2d 1197, 1200 (Ind. 1984). In other words, the inherent force in a

snatching – a de minims amount of force not sufficient to be ACCA

under actual force – equaled a “threat of bodily harm.” This runs

directly contrary to Stokeling’s explanation that a snatching cannot

constitute robbery. 139 S. Ct. at 555. Robbery, as espoused by Stokeling,

supported by the prior version of ACCA and the common law, supports

the idea that the force inherent in such a sudden snatching is, in fact,

an actual threat of force.

This case provides this Court with an ideal vehicle to address

Stokeling’s accidental creation of confusion surrounding the amount of

force that must be threatened in order to comprise robbery.

The Tenth Circuit cherry-picks facts to establish New

Mexico Robbery requires a threshold level of force

sufficient for ACCA purposes and evades examining the

elements of New Mexico’s Robbery statute as required by

the categorical approach.

The heart of the categorical approach is its refusal to consider

facts of a case. The reason for this is well-founded: focusing on elements

rather than facts promotes consistency and even-handedness. The

categorical approach ensures that a particular crime does not at times

count as a predicate offense and other times does not, “depending on the

facts of the case.” Descamps, 570 U.S. at 268. In United States v. Garcia,

877 F.3d 944, 953 (10th Cir. 2017), the Tenth Circuit reviewed a

sampling of New Mexico state robbery convictions and concluded from

that non-exhaustive survey that every robbery conviction in New Mexico

will categorically involve more force than the “minimal level of physical

force to take a victim’s property.” Id. This approach vitiates the

categorical approach.

The Garcia Court, 877 F.3d at 953, agreed that in New Mexico, a

jury considering a charge of robbery does not decide whether the degree

of force used was capable of causing bodily injury; instead, the jury only

decides whether the force was the lever that separated the victim from

her property. The panel conceded when, as in New Mexico, “no specific

quantum of force is required to commit a robbery . . . it precludes the

use of convictions under the Element Clause of the ACCA.” Id. at 953 n.

9; & id. at 956 (admitting New Mexico cases have held “any quantum of

force which overcomes resistance could be sufficient to support a

robbery conviction”). It also acknowledged that New Mexico’s Uniform

Jury Instruction for robbery described the amount of force necessary to

commit robbery as “immaterial.” Id. Nonetheless, Garcia dismissed the

instructions sanctioned by the New Mexico Supreme Court and the

state appellate courts’ rulings because “what is said is less important

than what is done.” Id. at 956.

Dismissing what is said by a state’s appellate courts or legislature

as less important and instead concentrate only on what is done by an

accused in a particular case expressly contravenes the categorical

approach. Under the categorical approach, the court looks at the

elements of the crime rather than the facts of the accused’s conduct.

Descamps, 570 U.S. at 257. Specifically, courts “compare the elements of

the statute forming the basis of the defendant’s conviction with the

elements of the ‘generic’ crime – i.e., the offense as commonly

understood.” Id. Courts do not assess the offense “in terms of how an

individual offender might have committed it on a particular occasion,”

but rather “in terms of how the law defines the offense.” Johnson v.

United States, 576 U.S. 591, 596 (2015) (Johnson II) (internal quotation

marks omitted). The categorical approach ensures even handedness - a

particular crime will at all times count as predicate offense (or not)

regardless of the underlying facts. See Descamps, 570 U.S. at 268.

Substituting facts of past cases for elements, as the Garcia panel

did, flaunts this Court’s directive to decide rules of law on categorical

grounds. See Mathis v. United States, 136 S.Ct.2243, 2253 (2016)

(stressing that modified categorical approach is used only to identify the

elements of the crime of conviction “when a statute’s disjunctive

phrasing renders one (or more) of them opaque.”).

Whether a conviction for residential burglary under

N.M. Stat. Ann. § 30-16-3(A), which allows for a conviction

where as long as someone uses a non-residential structure

(including cars) as a dwelling, falls within the generic

crime of burglary in the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e)(2)(B)(ii)?

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” and 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 to include “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 alone to transform a

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

residential burglary for entering a motor vehicle, in which someone

sleeps.

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 thirddegree 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, 136 S. Ct. at 2256. This

statute, New Mexico’s only burglary statute, punishes all unauthorized

entries with felonious intent in New Mexico. United States v. Turrieta,

875 F.3d 1340 (10th Cir. 2017), held a previous conviction for

residential burglary in New Mexico could be counted as an ACCA

predicate convictions. 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. But 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.

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. 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.

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

of which is customarily used as living quarters.” N.M. Rule Ann. Crim.

UJI 14-1631. 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.” N.M.

Rule Ann. Crim. UJI 14-1631. 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 a dwelling as well. Requiring only use as living

quarters to transform a structure to a dwelling expands New Mexico

residential burglary beyond generic burglary, even as clarified by Stitt,

139 S.Ct. 404. 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.

Conclusion

Because the Tenth Circuit has misinterpreted the common-law

standard adopted in Stokeling that guides the categorical analysis of

the elements clause for robbery, this Court should grant this writ.

Further, because Stitt left open the question if occasional use

transforms a vehicle into a dwelling for purposes of ACCA burglary, this

Court should grant this writ.

Respectfully submitted,

DATED: September 18, 2020

s/ Alonzo Padilla