Opinion
16 Civ. 4338 (NRB) 05 Cr. 1300 (NRB)
09-06-2016
Nelson GUERRERO, Movant, v. UNITED STATES of America, Respondent.
Clay Hubbard Kaminsky, Federal Defenders of New York Inc., New York, NY, for Movant. Kiersten Ann Fletcher, United States Attorney's Office, New York, NY, for Respondent.
Clay Hubbard Kaminsky, Federal Defenders of New York Inc., New York, NY, for Movant.
Kiersten Ann Fletcher, United States Attorney's Office, New York, NY, for Respondent.
MEMORANDUM AND ORDER
NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE
Nelson Guerrero ("Guerrero") was convicted, following a guilty plea, of conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846. He now moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Relying on Johnson v. United States , –––U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), he argues that he no longer qualifies as a career offender under the Sentencing Guidelines ("U.S.S.G."). The government argues that the motion should be denied, or in the alternative, stayed pending the Supreme Court's decision in Beckles v. United States , No. 15–8544. For the following reasons, the motion is denied.
BACKGROUND
In sentencing Guerrero in June 2007, this Court adopted the findings of the Probation Department in its Presentence Investigation Report ("PSR"), which calculated Guerrero's Guidelines range based on the determination that he was a career offender pursuant to U.S.S.G. § 4B1.1. Section 4B1.1 requires, inter alia , that the "instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense" and that "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense," U.S.S.G. § 4B1.1(a). For Guerrero, the two prior felony convictions resulting in career offender status were a 2003 federal conviction for distribution of a controlled substance, which qualified as a "controlled substance offense," and a 2005 New York State conviction for first-degree burglary, which qualified as a "crime of violence."
As a result of his career offender designation, Guerrero's base offense level was set at 37 and his Criminal History Category ("CHC") was increased from II to VI. Following a three-level reduction for acceptance of responsibility, Guerrero's Guidelines range was 262 to 327 months' imprisonment. By statute, he also faced a mandatory minimum of 120 months' imprisonment. 21 U.S.C. § 841(b)(1)(A). Absent career offender status, Guerrero's Guidelines range would have been 120 to 121 months' imprisonment.
At sentencing on June 28, 2007, this Court adopted the Guidelines range calculated in the PSR. However, noting that classifying Guerrero in CHC VI "overstate[d] his criminal history," the Court explained that it was giving a "nonguidelines sentence, essentially, because within the guidelines regime, I don't get the flexibility that I believe is appropriate here." Transcript of June 28, 2007 Sentencing at 44.
Significantly, Guerrero had committed his burglary offense and the drug offense for which he was being sentenced shortly after receiving a lenient prison sentence of time served following thirteen days in custody in connection with his prior conviction for a federal drug offense. This Court thus expressed concern over Guerrero's "incredible disregard of the break" he had been provided and his overall record of criminal conduct. Id. at 44–45. Emphasizing the "extraordinary" indifference Guerrero had demonstrated to law enforcement and to the federal judge who had previously sentenced him, the Court stated: "[W]hile I don't feel that a guidelines sentence is warranted here, I also don't feel that the absolute minimum is appropriate either." Id. at 45; see id. at 48 (noting that a court could only depart downward one level if it believed CHC overstated defendant's criminal history and thus "the guidelines analysis doesn't support the sentence that I gave him"). The Court then sentenced Guerrero principally to 144 months' imprisonment. Id. at 45.
On June 7, 2016, Guerrero filed this counseled motion to vacate his sentence. He argues that in light of Johnson , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569, his prior New York conviction for first-degree burglary can no longer be considered a "crime of violence."
We note that Guerrero's plea agreement, signed by Guerrero on October 30, 2006, contained a provision stating that Guerrero would not litigate under 28 U.S.C. § 2255 and/or 28 U.S.C. § 2241 any sentence within or below the stipulated Guidelines range of 262 to 327 months' imprisonment. Because the government does not raise the issue, we do not address the import of this waiver of collateral attack rights in this Memorandum and Order.
DISCUSSION
I. General Principles
As stated above, § 4B1.1 enhances a defendant's offense level if the defendant, inter alia , has at least two previous convictions for a crime of violence or a controlled substance offense. At the time of Guerrero's sentencing, "crime of violence" was defined as follows:
[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives , or otherwise involves conduct that presents a serious potential risk of physical injury to another .
U.S.S.G. § 4B1.2(a) (2006) (emphases added). Subsection 4B1.2(a)(1) is known as the "elements clause." The first emphasized portion of § 4B1.2(a) (2) is known as the "enumerated offenses clause," and the second emphasized portion is the "residual clause."In Johnson , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569, the Supreme Court declared that the residual clause of the Armed Career Criminal Act ("ACCA"), found in 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. The ACCA provides for a 15-year mandatory minimum sentence for defendants convicted under 18 U.S.C. § 922(g) if they have three prior "violent felon[ies]" or "serious drug offense[s]." 18 U.S.C. § 924(e)(1). Applying the void-for-vagueness doctrine, the Court concluded that the residual clause failed to provide "fair notice to defendants" and "invite[d] arbitrary enforcement by judges," and thus denied due process of law to a defendant whose sentence was increased thereunder. Johnson , 135 S.Ct. at 2557. Less than a year later, in Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Supreme Court held that Johnson announced a substantive rule that has retroactive effect in cases on collateral review.
The ACCA's now-invalidated residual clause utilized wording identical to the residual clause contained in the relevant version of § 4B1.2(a). After Guerrero's § 2255 motion was filed, the Supreme Court granted certiorari in Beckles v. United States , No. 15–8544, ––– U.S. ––––, 136 S.Ct. 2510, 195 L.Ed.2d 838, 2016 WL 1029080 (U.S. June 27, 2016), which presents the following questions: (1) whether Johnson 's holding applies to the residual clause in the career offender Guideline; (2) if so, whether Johnson 's invalidation of the residual clause in the career offender Guideline applies retroactively on collateral review; and (3) whether a conviction for unlawful possession of a sawed-off shotgun qualifies as a "crime of violence" under the Guideline.
Since Johnson , the Sentencing Commission amended § 4B1.2(a) to remove the residual clause from the "crime of violence" definition. U.S.S.G. § 4B1.2(a). As discussed below, "burglary of a dwelling" was also removed from § 4B1.2(a)'s list of enumerated offenses. Id .
II. The Parties' Arguments
Guerrero contends that Johnson applies to invalidate the residual clause in § 4B1.2(a). Just as it has elsewhere, the government here "agrees that Johnson invalidates the career offender Guideline's residual clause for current cases." Memorandum of Law of the United States of America in Opposition to Petitioner Nelson Guerrero's Motion to Vacate Under 28 U.S.C. § 2255 at 16. The government instead argues that Guerrero's motion does not meet the requirements of 28 U.S.C. § 2255(f)(3). Under § 2255(f), a one-year period of limitation runs from the latest of, to the extent relevant here, "the date on which the judgment of conviction becomes final" or "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(1), (3). Guerrero's judgment of conviction became final over nine years ago. See Moshier v. United States , 402 F.3d 116, 118 (2d Cir.2005) ("[F]or purposes of § 2255 motions, an unappealed federal criminal judgment becomes final when the time for filing a direct appeal expires."). Thus, to obtain the reset provided for in § 2255(f)(3), Guerrero must have filed his motion within "one year from the date on which the right he asserts was initially recognized" by the Supreme Court. Dodd v. United States , 545 U.S. 353, 357, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005).
While Guerrero contends that his June 7, 2016 motion is timely because the Supreme Court decided Johnson on June 26, 2015, the government takes the position that the motion is, at a minimum, premature, because the right that Guerrero asserts has not yet been recognized by the Supreme Court. Despite conceding that the residual clause in § 4B1.2(a) is void for vagueness following Johnson as applied to current cases, the government argues that the granting of certiorari in Beckles demonstrates that the Supreme Court does not view its opinions in Johnson and Welch as having already recognized a new right applicable to the Guideline.
The government also contends that even if such a new right has been recognized by the Supreme Court, it should not be applied retroactively to Guerrero's sentence. Pursuant to the framework established by the plurality opinion in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny, the government argues that any new rule invalidating the residual clause in § 4B1.2(a) would be procedural and not substantive, rendering it unsusceptible to retroactive application on collateral review. Highlighting the significant risk of a higher sentence that results from career offender designation, Guerrero responds that Johnson announced a substantive rule that has retroactive effect in both ACCA and career offender Guideline cases.
Finally, the government argues that, even if applicable retroactively to this case, Johnson has no effect on Guerrero's career offender status because his New York first-degree burglary offense is a crime of violence under § 4B1.2(a)'s enumerated offenses or elements clauses.
III. The Request for a Stay in the Alternative
Following the grant of certiorari in Beckles , the Second Circuit, noting "substantial disagreement" among other circuits on whether Johnson applies retroactively to cases involving § 4B1.2(a)'s residual clause, recently instructed a district court to hold a successive § 2255 motion in abeyance pending the Supreme Court's decision. Blow v. United States , 829 F.3d 170, 172–73 (2d Cir.2016), as amended (July 29, 2016). Nonetheless, the Second Circuit subsequently clarified that the district court was "free to consider termination of the stay, on motion or sua sponte." Id . As mentioned above, the government requests that Guerrero's motion be denied, or in the alternative, stayed pending Beckles .
We believe a stay is unwarranted for two reasons. First, Guerrero's calculated release date is February 13, 2017. Accordingly, whether or not his motion warrants relief, Guerrero should not be forced to await the decision in Beckles , which may be issued following his release date, to obtain an answer from this Court. Second, we conclude that we may deny the motion on an independent ground not implicated by Beckles , i.e., the question of whether Guerrero's conviction for New York first-degree burglary of a dwelling qualifies as a crime of violence even if § 4B1.2(a)'s residual clause is invalidated. The limitations bar in § 2255(f)(3) is not jurisdictional, see Pough v. United States , 442 F.3d 959, 965 (6th Cir.2006), and, given our ultimate denial of the motion, the question of Johnson 's retroactive application in this context need not be decided as a threshold issue, see Goodrich v. Hall , 448 F.3d 45, 49 (1st Cir.2006) (concluding that court need not resolve Teague issue simply because State raises it where habeas petition can easily be denied on other grounds). Accordingly, we proceed to deciding whether New York first-degree burglary constitutes a crime of violence under § 4B1.2(a).
According to this Court's investigation, Guerrero, who is not a U.S. citizen, has two detainers filed with his federal prison facility. One was lodged in connection with a New York State sentence resulting from his 2005 burglary conviction, which sentence includes five years' imprisonment t o run consecutively with this Court's sentence. The other is an immigration detainer.
IV. New York First-Degree Burglary
There is no evidence in the PSR indicating which clause of the Guideline definition supported classification of Guerrero's 2005 first-degree burglary offense as a crime of violence. Johnson did "not call into question" the validity of the enumerated offenses and elements clauses, 135 S.Ct. at 2563, and the government argues that Guerrero's burglary conviction qualifies as a crime of violence under both. Because we agree that the conviction qualifies under the enumerated offenses clause, we do not address the elements clause argument.
To determine whether a prior conviction is a qualifying crime of violence, courts must engage in what is referred to as the "categorical approach," Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under that approach, we first consider the offense of conviction by examining "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." Begay v. United States , 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Thus, the "singular circumstances" of an individual defendant's previous crimes should not be considered, and "only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant." Dalton v. Ashcroft , 257 F.3d 200, 204 (2d Cir.2001) (internal quotation marks omitted). If the statute of prior conviction criminalizes conduct that falls exclusively within the federal "generic" definition of a qualifying offense listed in the Guideline, then "there is no problem, because the conviction necessarily implies that the defendant has been found guilty" of that qualifying offense. Taylor , 495 U.S. at 599, 110 S.Ct. 2143.
New York's first-degree burglary statute has not been amended since Guerrero's 2005 conviction. It provides in relevant part:
A person is guilty of burglary in the first degree when he knowingly enters or remains unlawfully in a dwelling with intent to commit a crime therein, and when, in effecting entry or while in the dwelling or in immediate flight therefrom, he or another participant in the crime:
1. Is armed with explosives or a deadly weapon; or
2. Causes physical injury to any person who is not a participant in the crime; or
3. Uses or threatens the immediate use of a dangerous instrument; or
4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm.
N.Y. Penal Law § 140.30. For the purposes of its burglary and trespass offenses, New York Penal Law defines "[d]welling" as "a building which is usually occupied by a person lodging therein at night." Id. § 140.00(3). " ‘Building’, in addition to its ordinary meaning, includes any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein, or used as an elementary or secondary school, or an inclosed motor truck, or an inclosed motor truck trailer." Id . § 140.00(2).
Guerrero argues that a conviction for New York first-degree burglary may be for conduct outside the scope of the generic definition of "burglary of a dwelling." For support, he relies on the Supreme Court's definition of generic burglary in Taylor . Tasked with defining "burglary" for purposes of the enumerated offenses clause of the ACCA, the Taylor Court held that the generic offense of burglary contains the basic elements of "unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." 495 U.S. at 598, 110 S.Ct. 2143. The Court noted that some state burglary statutes define burglary more broadly than the generic definition, including statutes extending the locational element to "places, such as automobiles and vending machines, other than buildings." Id . at 599, 110 S.Ct. 2143 ; see id . (citing example of statute reaching booths, tents, boats, and railway cars); see also Shepard , 544 U.S. at 15–16, 125 S.Ct. 1254 (burglary is generic burglary "only if committed in a building or enclosed space ..., not in a boat or motor vehicle").
If the statute of conviction sweeps more broadly than the generic federal offense, courts may nonetheless apply the modified categorical approach if the statute has a "divisible" structure. See Vargas – Sarmiento v. U.S. Dep't of Justice , 448 F.3d 159, 167 (2d Cir.2006). Under that approach, courts look to a limited class of documents to determine what crime, with what elements, a defendant was convicted of. See Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ; Taylor , 495 U.S. at 602, 110 S.Ct. 2143. A court can then compare that particular crime with the relevant generic offense.
Here, the parties agree based on the PSR that the subsection of § 140.30 to which Guerrero pled guilty was that which requires proof that a participant was "armed with explosives or a deadly weapon." However, we need not determine whether the statute is divisible and, if so, which alternative crime Guerrero committed because we find that the statute fits within generic burglary of a dwelling even if based on the minimal conduct necessary to sustain a conviction—in all likelihood, the conduct covered by the "explosives or a deadly weapon" subsection.
In light of Taylor , the Second Circuit has previously recognized that New York Penal Law § 140.00's "expansive" definition of "building" means that New York's third-degree burglary statute reaches conduct beyond generic burglary. United States v. Lynch , 518 F.3d 164, 170 n. 8 (2d Cir.2008). Guerrero argues that the first-degree burglary statute is similarly overbroad because it criminalizes burglarizing a "vehicle" or "watercraft" "usually occupied by a person lodging therein at night," N.Y. Penal Law § 140.00(2), (3).
However, as the government points out, the enumerated offenses clause in § 4B1.2(a)(2) contained "burglary of a dwelling," rather than "burglary" as in the ACCA. The question is if the entirety of Taylor 's generic definition of burglary, including the locational restrictions highlighted by the Supreme Court, is incorporated into the definition of "burglary of a dwelling" in the Guidelines. While neither the Supreme Court nor the Second Circuit has ruled on the question, it has received conflicting answers from other circuit courts. Compare United States v. Ramirez , 708 F.3d 295, 300–03 (1st Cir.2013) (Taylor 's definition of burglary does not strictly apply to "burglary of a dwelling" in Guidelines); United States v. Rivera – Oros , 590 F.3d 1123, 1128–33 (10th Cir.2009) (same); United States v. Murillo – Lopez , 444 F.3d 337, 342–45 (5th Cir.2006) (same); United States v. Harris , 569 Fed.Appx. 839, 841 (11th Cir.2014) (same); and United States v. McClenton , 53 F.3d 584, 587–88 (3d Cir.1995) (interpreting "burglary of a dwelling" without reference to Taylor ); United States v. Graham , 982 F.2d 315, 316 (8th Cir.1992) (same); with United States v. Henriquez , 757 F.3d 144, 147 & n. 2 (4th Cir.2014) (Taylor 's definition applies to "burglary of a dwelling" in Guidelines with additional narrowing requirement that burglary involve dwelling); United States v. Wenner , 351 F.3d 969, 972–74 (9th cir.2003) (same). The decisions interpreting "burglary of a dwelling" to encompass locational requirements distinct from those identified in Taylor are more persuasive. Nothing in Taylor "claim[s] to provide a generic definition of ‘burglary of a dwelling.’ " Rivera – Oros , 590 F.3d at 1128–29 ; see Ramirez , 708 F.3d at 301 ("Taylor involved a question of congressional intent, not the [Sentencing] Commission's intent, and did not mandate the Commission restrict the definition of ‘burglary of a dwelling,’ based on Taylor 's definition of ‘generic burglary’ under the ACCA.").
Some of these decisions interpret "burglary of a dwelling" as used in the definition of "crime of violence" in the illegal reentry Guideline.
Guerrero argues that the history of the career offender Guideline demonstrates that "burglary of a dwelling" incorporates the place limitations of generic burglary. He points to the original 1987 Guidelines Manual, which defined "crime of violence" in the career offender Guideline by reference to 18 U.S.C. § 16, see U.S.S.G. § 4B1.2(1) (1987), and noted in commentary that "[c]onviction for burglary of a dwelling would be covered [whereas] conviction for burglary of other structures would not be covered," id . § 4B1.2 cmt. n.1 (1987). In addition, he cites the 1989 amendment to the Guideline, when the Sentencing Commission eliminated the reference to 18 U.S.C. § 16, moved "burglary of a dwelling" and other enumerated offenses into the Guideline text, and explained that the "definition of crime of violence used in this amendment is derived from 18 U.S.C. § 924(e)." U.S.S.G. app. C, amend. 268 (1989). Guerrero contends that the Commission's linkage of "dwelling" to the term "structure" in 1987 and reference to the ACCA in 1989 indicate that "burglary of a dwelling" in the Guideline not only is "derived" from "burglary" in the ACCA but is also limited to the kinds of "buildings or other structures" contemplated by Taylor .
This pre-Taylor Guidelines history does not support the latter conclusion. As for the 1987 Guidelines Manual, we do not read the Commission's use of "structure" to exclude nonbuildings used for habitation. Indeed, Taylor adopted a narrow construction of the term "structure," and Guerrero provides no justification for assuming the Commission intended the same construction. See United States v. Grisel , 488 F.3d 844, 848 (9th Cir.2007) (en banc) ("In using the term ‘building or structure,’ the [Taylor ] Court encapsulated the common understanding of the word ‘building’ —a structure designed for occupancy that is intended for use in one place." (emphasis added)).
As for the 1989 amendment, while the ACCA's definition of "violent felony" and § 4B1.2(a)'s definition of "crime of violence" were nearly identical, the Commission chose to include "burglary of a dwelling" as opposed to "burglary." See U.S.S.G. § 4B1.4 cmt. n.1 (2006) ("It is to be noted that the definitions of ‘violent felony’ and ‘serious drug offense’ in [the ACCA] are not identical to the definitions of ‘crime of violence’ and ‘controlled substance offense’ used in § 4B1.1...."). It would have been entirely possible for the Commission, at the time it selected "burglary of a dwelling" as a crime of violence, to have intended for the words to possess meaning independent of "burglary" because it viewed burglary of a habitation as particularly likely to lead to violence.
Indeed, as the Tenth Circuit has explained, interpreting "burglary of a dwelling" to reach beyond permanent and immovable structures to residences more broadly makes sense in light of both the "Commission's heightened concern" evidenced elsewhere in the Guidelines for "the harms associated with residential burglaries" and "the unbroken historical recognition of those harms" at common law and in the Model Penal Code. Rivera – Oros , 590 F.3d at 1132. For example, as noted in Rivera – Oros , the offense Guideline for burglary assigns a base offense level of 17 for burglary of a "residence" and 12 for burglary of "a structure other than a residence," with the commentary explaining that the difference reflects the "increased risk of physical and psychological injury" involved in residential burglary. U.S.S.G. § 2B2.1(a) ; id . § 2B2.1 cmt. background. Reading "burglary of a dwelling" not to reach certain habitations based on Taylor would undermine any intention on the part of the Commission to address the particular risks of residential burglary.
In sum, Guerrero provides no defensible basis for incorporating Taylor 's loca tion mandate into "dwelling." Accordingly, we conclude that "although a certain venue may not qualify as a Taylor -approved building or structure, it may still serve as a residence and thus constitute a dwelling." United States v. Guerrero – Navarro , 737 F.3d 976, 979 (5th Cir.2013) ; see also Wenner , 351 F.3d at 979 (Wallace, J ., dissenting) (generic burglary of a dwelling is "broader than Taylor 's definition, because it applies to residential spaces that are not buildings, but it is also considerably narrower, because it does not apply to nonresidential buildings").
We must therefore construe "dwelling" based on its "ordinary meaning." United States v. Awan , 607 F.3d 306, 313 (2d Cir.2010). Decisions interpreting "dwelling" in § 4B1.2(a) without importing Taylor 's space requirements generally rely on Black's Law Dictionary to define the term to mean "any ‘enclosed space that is used or intended for use as a human habitation,’ " Rivera – Oros , 590 F.3d at 1132 (quoting Black's Law Dictionary 582 (9th ed. 2009)); accord Ramirez , 708 F.3d at 303 ; see also Murillo – Lopez , 444 F.3d at 343–45 (relying in part on Black's to hold that "dwelling" encompasses "tents or vessels used for human habitation"); McClenton , 53 F.3d at 587 (defining "dwelling" as a " ‘building or portion thereof, a tent, a mobile home, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence’ " (emphasis omitted) (quoting Black's Law Dictionary 505 (6th ed. 1990))).
As mentioned, the Commission has removed "burglary of a dwelling" from the career offender Guideline. A prior burglary conviction may now be used as a reason for an upward departure, but only when the burglary involved violence. U.S.S.G. § 4B1.2 cmt. n.4. According to the Commission, this decision was principally based on empirical evidence demonstrating that burglary offenses rarely result in physical violence, burglary of a dwelling is rarely a qualifying offense of conviction, and career offenders are rarely rearrested for a burglary offense after release. U.S.S.G. August 1, 2016 supp. to the 2015 supp. to app. C, at 11-12. The Commission also explained that courts have struggled to identify a uniform contemporary, generic definition of "burglary of a dwelling," and it cited the circuit split on whether Taylor 's "building or other structure" requirement applies to § 4B1.2(a). Id .
While Guerrero relies on this disagreement as support for applying the rule of lenity in construing "burglary of a dwelling," we believe that the definition of "dwelling" contemplated by the above decisions is based on a straightforward reading of the Guideline and that there is no textual basis to interpret "dwelling" to include the particular strictures discussed in Taylor. See Chapman v. United States , 500 U.S. 453, 463, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991) ("The rule of lenity ... is not applicable unless there is a grievous ambiguity or uncertainty in the language and structure of the [statute], such that even after a court has seized every thing from which aid can be derived, it is still left with an ambiguous statute." (internal quotation marks, citations, and brackets omitted)).
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Adopting that definition, we reject Guerrero's argument that New York's first-degree burglary statute sweeps more broadly than "burglary of a dwelling" because it may reach a "vehicle" or "watercraft" "usually occupied by a person lodging therein at night." New York courts deciding whether a "building" is a "dwelling" "look to the nature of the structure and determine whether it was normal and ordinary that it was used as a place for overnight lodging and had the customary indicia of a residence and its character or attributes." People v. Barney , 99 N.Y.2d 367, 372, 786 N.E.2d 31, 34, 756 N.Y.S.2d 132 (2003) (internal quotation marks omitted). Vehicles and watercraft possessing customary residential characteristics—presumably motor homes and houseboats—constitute enclosed spaces used or intended for use as a human habitation. See Ramirez , 708 F.3d at 304 ("Human habitation is the sin[e] qua non of a ‘dwelling.’ " Spaces found to be "dwellings" under the Guidelines include "tents and vessels," "hotel guest rooms," and "unspecified structures used as weekend fishing retreats." (some internal quotation marks omitted)).
Although Guerrero contends that New York's definition of "dwelling" also includes "unenclosed" spaces, he provides no examples of New York courts so finding. Such an interpretation is unlikely given the attributes necessary to make a location possess the character of a residence. "[T]o find that a state statute creates a crime outside the generic definition of a listed crime .... requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime." Gonzales v. Duenas – Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007). An offender "must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues," id. and Guerrero does not do so here.
Finally, Guerrero contends that the first-degree burglary statute is still overbroad because New York's definition of "dwelling" covers nonresidential portions of a building containing residential spaces. New York Penal Law provides that "[w]here a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building." N.Y. Penal Law § 140.00(2). A burglar may thus enter a "dwelling" upon entering a nonresidential unit sharing a building with residential units. See Quinn v. People , 71 N.Y. 561, 573–74 (1878) (burglary of store under same roof as living quarters was burglary of a dwelling, even though one could not enter store from living quarters without going outside; noting, however, that same rule might not apply to large building that contained both sleeping quarters and variety of stores, and citing "Astor House" as an example); People v. Green , 141 A.D.2d 760, 761, 529 N.Y.S.2d 852, 853 (2d Dep't 1988) ("Since the garage in the present case was structurally part of a building which was used for overnight lodging of various persons, it must be considered as part of a dwelling.").
In rejecting this same contention recently, the Fifth Circuit relied on dictionary definitions, Professor LaFave's treatise on Substantive Criminal Law, and the Model Penal Code to conclude that the ordinary, contemporary meaning of "dwelling" reaches single buildings containing residences and nonresidences. See United States v. Albornoz – Albornoz , 770 F.3d 1139, 1142–43 (5th Cir.2014), cert. denied , ––– U.S. ––––, 135 S.Ct. 1517, 191 L.Ed.2d 449 (2015). For example, at the time Guerrero was sentenced, Black's Law Dictionary defined "dwelling-house" in the criminal law context to "typically include[ ] ... the structures connected either directly with the house or by an enclosed passageway." Black's Law Dictionary 546 (8th ed. 2004). (It contains the same language today.) Similarly, at common law, a "place of business used only during the day" was the "dwelling of another" if "attached to a residence." 3 Wayne R. LaFave, Substantive Criminal Law § 21.1(c), at 213 (2d ed. 2003). We think these definitions embrace New York's statutory inclusion of entry into a nonresidential part of a residential building, which inclusion has common-sense limits recognized by the Court of Appeals, see People v. McCray , 23 N.Y.3d 621, 627, 628, 16 N.E.3d 533, 536, 537, 992 N.Y.S.2d 475 (2014) (emphasizing " ‘close contiguity’ " between "place of the burglary and the sleeping quarters" even if the two are not "instantly accessible to each other" and rejecting argument that statute authorizes conviction where "burglar neither comes nor readily can come near to anyone's living quarters" (quoting Quinn , 71 N.Y. at 567 )).
Accordingly, New York's definition of "dwelling" comports with that term's ordinary meaning and the first-degree burglary statute corresponds with "burglary of a dwelling" in the enumerated offenses clause. As a result, even if Johnson applied to this case, it would not entitle Guerrero to relief.
CONCLUSION
For the foregoing reasons, Guerrero's § 2255 motion is denied. The Court grants a certificate of appealability with respect to Guerrero's claim for relief based on Johnson as applied to the career offender Guideline. The Clerk of the Court is directed to close the civil case (16 Civ. 4338) and to terminate the pending motions in the civil (ECF No. 1) and criminal dockets (ECF No. 70).