Whether a commercial burglary conviction under New Mexico law categorically does not qualify as a violent felony under the Armed Career Criminal Act's enumerated offense clause

Question Presented for Review According to this Court’s decisions in Taylor and Stitt, Anzures’s New Mexico commercial burglary conviction categorically is not generic burglary. Thus, it does not qualify as a violent felony as defined by the Armed Career Criminal Act’s (ACCA) enumerated offense clause. The ACCA enhanced sentence Anzures is serving is illegal because that conviction was one of three used by the district court to support that sentence. This Court has held a burglary statute, like New Mexico’s, that prefaces the location where the burglary may take place with the word “any” does not comport with generic burglary. Although the Tenth Circuit acknowledged in Ramon Silva and King that commercial burglary in New Mexico is categorically not generic burglary, it still denied Anzures’s 28 U.S.C. § 2255 Johnson motion to set aside his sentence. To do so, the court claimed when Anzures was sentenced, Ramon Silva and King held that under the modified categorical approach a commercial burglary conviction was generic burglary. It concluded that the sentencing court did not need the now defunct residual clause to make that finding, i.e. “the snapshot of what the controlling law was at the time of sentencing,” left “little dispute” that Anzures’s offense fell within the generic definition. The problem is that Ramon Silva and King were wrongly decided. This Court repeatedly has held that the modified categorical approach is never utilized when the elements of a state offense “are broader than those of a listed generic offense.” Mathis v. United States, 136 S.Ct. 2243, 2251 (2016). Once there is a categorical mismatch, the modified categorical approach cannot be used to reach generic burglary. To allow the Tenth Circuit’s decisions to i stand, allows it to produce, and then perpetuate, a legal mistake that causes someone a legal harm each time it is used. The court’s decision here willfully ignores Taylor was controlling law when Anzures was sentenced. Stitt did not clarify or correct the law on generic burglary. It reaffirmed what Taylor had always meant. By the circuit’s own definition, Ramon Silva cannot be the “relevant legal background” for an analysis now because a wrong decision has no “pertinence to the issue at hand.” Black’s Law Dictionary (7th Ed.). Relevant law is material and proper. An opinion that applies the wrong analysis to produce an incorrect conclusion is neither. This Court said as much in Mathis. Taylor was the relevant authority when Anzures was sentenced. Accordingly, the circuit’s modified categorical approach was inapplicable to its analysis and New Mexico commercial burglary categorically was not generic burglary. Question Presented for Review Anzures presents the following issue to this Court: I. When a Johnson petitioner would not be an armed career criminal if sentenced today, is it right to endorse the Tenth Circuit’s “relevant legal background” analysis which blatantly ignores controlling law or should a court focus instead on a showing that the sentence was possibly predicated on a residual clause that is now unconstitutional as is done in the Fourth and Ninth Circuits? ii