                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  July 28, 2015
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                     No. 14-2054
 REYNALDO ROMERO-LEÓN,                        (D.C. No. 1:09-CR-00902-WJ-1)
                                                         (D. N.M.)
          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, BALDOCK, and BACHARACH, Circuit Judges.


      Reynaldo Romero-León appeals to us for a shorter sentence, arguing that the

district court’s reliance on the Armed Career Criminal Act (ACCA) has subsequently

been invalidated by United States v. Brooks, 751 F.3d 1204 (10th Cir. 2014). For the

following reasons, we reverse and remand for resentencing.

                                         I.

      Eighteen U.S.C. § 922(g) makes it unlawful for felons and illegal aliens to

possess firearms. See id. § 922(g)(1) & (5). Pursuant to the ACCA, a person who

violates § 922(g) and has three prior “serious drug offense” convictions faces a



      *
         This order and judgment is not binding precedent except under the doctrines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.
mandatory minimum of 15 years in prison. See 18 U.S.C. § 924(e). The ACCA

defines “serious drug offense” as an offense “for which a maximum term of

imprisonment of ten years or more is prescribed by law.” Id. § 924(e)(2)(A)(ii).

      In 1999, in the New Mexico state court system, Romero-León pled guilty to

three drug crimes. Although the underlying criminal activities took place at different

times, they were resolved in a single plea agreement. Romero-León received a nine-

year sentence for each offense; the sentences, however, were apparently deferred in

favor of probation. Several years later, in 2002, Romero-León was convicted of

another state drug offense in New Mexico. It is undisputed that this offense was

punishable by a sentence greater than ten years.

      In 2010, Romero-León pled guilty in the federal District of New Mexico to

two crimes under § 922(g): (1) being a felon in possession of a firearm; and (2) being

an illegal alien in possession of a firearm. At sentencing, the Government asked the

district court to apply the ACCA. Romero-León undeniably had one prior “serious

drug offense” (the 2002 crime), and the Government asserted at least two of Romero-

León’s 1999 convictions qualified because they were punishable by ten years’

imprisonment or more. After wrestling with the issue, the court eventually agreed.

In doing so, the court relied on United States v. Hill, 539 F.3d 1213 (10th Cir. 2008).

There, we held that in determining whether a crime qualified as a “crime punishable

by imprisonment for a term exceeding one year” under § 922(g)(1), the statutory

maximum penalty controlled rather than the individual defendant’s unique

                                          2
circumstances. Hill, 539 F.3d at 1221. Thereafter, in May 2011, the court sentenced

Romero-León to 210 months in prison. In July 2012, citing Hill, we affirmed. See

United States v. Romero-Leon, 488 F. App’x 302, 304–05 (10th Cir. 2012)

(unpublished) (“Here, while all of Mr. Romero–Leon’s consolidated [1999] offenses

carried a sentence of nine years, at the time of his convictions each could have been

enhanced under New Mexico law by three years for aggravating circumstances.”).

      In June 2013, Romero-León moved to “vacate, set aside or correct” his

sentence under 28 U.S.C. § 2255, contending (among other things) that the ACCA

was inapplicable to his case. A magistrate judge opined that this argument was

barred because the issue had been addressed on direct appeal. Romero-León did not

object to the magistrate’s conclusion, and the district court concurred. The court did,

however, decide to grant the motion in part and re-sentence Romero-León because

his two § 922(g) convictions were multiplicitous. On April 2, 2014, the court

re-sentenced Romero-León to 195 months in prison—again applying the ACCA.

      On April 8, 2014, Romero-León filed a pro se notice of appeal “Concerning

The Sentence I Received on The date of April 2 and 2014.” On April 14, Romero-

León sent another pro se letter to the Tenth Circuit stating he was “appealing the 195

month sentence I received on April 2nd, 2014.” On April 30, he sent a letter written

entirely in Spanish; in it, he again protested the April 2 sentence and requested new

counsel be appointed because his current counsel was ineffective. Eventually,

Romero-León’s counsel appeared and submitted a docketing statement indicating

                                          3
Romero-León was appealing the sentence he received on April 2. As a result of all

this, we calendared the appeal as a direct appeal from Romero-León’s new sentence.

      Then, on June 2, 2014, we issued Brooks, 751 F.3d 1204. Based on the United

States Supreme Court’s decision in Carachuri-Rosendo v. Holder, 560 U.S. 563

(2010), Brooks overruled Hill and emphasized that “in determining whether a state

offense was punishable by a certain amount of imprisonment, the maximum amount

of prison time a particular defendant could have received controls, rather than the

amount of time the worst imaginable recidivist could have received.” Brooks, 751

F.3d at 1213. In a footnote, we explained why Romero-Leon did not control:

      First and foremost, the Government does not rely on [this] case[].
      Second, while in . . . Romero-Leon we did, post-Carachuri-Rosendo,
      rely on Hill . . . we never mentioned Carachuri-Rosendo . . . . ‘[W]e are
      generally not bound by a prior panel’s implicit resolution of an issue
      that was neither raised by the parties nor discussed by the panel.’
      Third, not only was Romero-Leon unpublished, but it also is arguably
      distinguishable since the defendant there had aggravating circumstances
      that would have allowed for a sentence of ten years or more on his past
      state convictions.

Id. at 1211 n.4 (internal citations omitted).

      Romero-León’s counsel subsequently moved to withdraw, citing irreconcilable

differences. We granted this motion. On September 15, 2014, Romero-León’s newly

appointed counsel submitted his opening brief on appeal, contending that Brooks did

not allow Romero-León to be sentenced under the ACCA. Significantly, however,

this brief indicated Romero-León was attacking his original May 2011 sentence

under § 2255, rather than his April 2014 sentence on direct appeal. In response, the

                                           4
Government filed a motion asserting that Romero-León must obtain a certificate of

appealability (COA) if he was going to pursue a § 2255 appeal.

      On November 20, 2014, we directed the clerk to modify the docket to show

this appeal as a § 2255 appeal rather than a direct criminal appeal. As a result, we

noted, a COA was indeed necessary before any proceedings could continue. On

January 27, 2015, we granted Romero-León a COA on this question: “Was the

defendant wrongly sentenced under the Armed Career Criminal Act, 18 U.S.C.

§ 924(e), in light of [Brooks and Carachuri-Rosendo].” The parties subsequently

completed their briefing and participated in oral argument.

                                        II.

      Before we can discuss the merits, we must return to the troubling question of

whether this is a direct or a § 2255 appeal.       Romero-León is protesting the

application of the ACCA to his sentence—that much is clear. As it stands, though,

he is contesting his original May 2011 sentence via § 2255. But Romero-León’s

original sentence has been vacated (and Romero-León has been re-sentenced). So,

how can we “vacate, set aside or correct” a sentence that no longer exists? It would

appear that Romero-León may be barking up the wrong tree. See United States v.

Moore, 83 F.3d 1231, 1235 (10th Cir. 1996) (“After vacation of the sentence

pursuant to 28 U.S.C. § 2255, however . . . the original sentence . . . is

eviscerated.”); cf. Johnson v. Ponton, 780 F.3d 219, 223 (4th Cir. 2015) (“[W]e

conclude that Johnson’s petition is justiciable because he is currently serving the

                                         5
sentence he challenges.” (emphasis added)). At minimum, Romero-León has failed

to explain how resentencing did not moot his § 2255 appeal.

      Thankfully, we need not decide this issue.          That is because we feel

comfortable here (re-)construing this appeal as a direct appeal from Romero-León’s

most recent sentencing. As detailed above, Romero-León originally filed, pro se, a

direct appeal of his April 2, 2014 sentence, and we originally calendered it as such.

It was only later—after Romero-León was appointed a new counsel—that his

approach changed.     Assuming, without deciding, that this new approach was

incorrect, we see no need to penalize Romero-León with dismissal when, appearing

pro se, he got it right in the first place, and when the sole legal issue in question

remains the same. Thus, we proceed on the assumption that this is a direct appeal

from the April 2 proceeding, in which the ACCA was again applied to enhance

Romero-León’s sentence. Accordingly, we direct the clerk to modify the docket to

show this appeal as a direct criminal appeal rather than a § 2255 appeal. 1

                                         III.

      In Brooks, we held “that in determining whether a state offense was punishable

by a certain amount of imprisonment, the maximum amount of prison time a

particular defendant could have received controls.” Brooks, 751 F.3d at 1213.


      1
        This obviates any need to discuss whether Romero-León can re-litigate
through § 2255 a claim decided against him on direct appeal, or whether Romero-
León waived his ACCA argument by failing to object to the magistrate’s
recommendation in his § 2255 proceeding.

                                          6
Romero-León contends the maximum amount of prison time he could have received

for his three 1999 drug offenses was nine years, meaning they did not qualify as

“serious drug offense[s]” under the ACCA. In response, the Government asserts

that, in 1999, New Mexico law gave the state trial court authority to sentence

Romero-León to 12 years for at least two of the three offenses. Thus, this appeal

requires us to determine what exact punishment Romero-León was facing under New

Mexico law in 1999. This, obviously, is a legal determination we approach de novo.

See United States v. Johnson, 630 F.3d 970, 975 (10th Cir. 2010).

      Two New Mexico statutes (circa 1999) are relevant here. The first, N.M.S.A.

§ 31-18-15, stated (at the time): “If a person is convicted of a noncapital felony, the

basic sentence of imprisonment is . . . for a second degree felony, nine years

imprisonment . . . unless the court alters the sentence pursuant to the provisions of

Section 31-18-15.1 . . . .” N.M.S.A. § 31-18-15 (emphasis added) (effective until

July 2007). And, until it was later held unconstitutional, § 31-18-15.1 provided that:

      A. The court shall hold a sentencing hearing to determine if mitigating
      or aggravating circumstances exist and take whatever evidence or
      statements it deems will aid it in reaching a decision. The court may
      alter the basic sentence as prescribed in Section 31-18-15 . . . upon a
      finding by the judge of any mitigating or aggravating circumstances
      surrounding the offense or concerning the offender. If the court
      determines to alter the basic sentence, it shall issue a brief statement of
      reasons for the alteration and incorporate that statement in the record
      of the case. . . .

      C. The amount of the alteration of the basic sentence for noncapital
      felonies shall be determined by the judge. However, in no case shall
      the alteration exceed one-third of the basic sentence . . . .

                                          7
N.M.S.A. § 31-18-15.1 (invalidated by State v. Frawley, 172 P.3d 144 (N.M. 2007)).

A. Arguments

      The Government argues these two statutes, read together, created permissible

sentencing ranges, with the specific sentence listed in § 31-18-15 (here, 9 years)

serving as the midpoint of a given range (here, 6–12 years). See State v. Wilson, 24

P.3d 351, 356 (N.M. Ct. App. 2001) (“Sections 31–18–15 and 31–18–15.1 must be

read together to create permissible ranges of sentences, with the basic sentences

prescribed by Section 31–18–15 being the midpoints of these ranges.”).           The

Government asserts trial courts had broad discretion to sentence within these ranges

so long as they found aggravating or mitigating circumstances.          Indeed, the

Government contends, a New Mexico trial court wasn’t even required to provide

advance notice of an aggravated sentence when the circumstance leading to the

higher sentence “was itself an element of the underlying offense or a fact used to

establish such an element.” Caristo v. Sullivan, 818 P.2d 401, 409–10 (N.M. 1991).

      The Government claims all of this distinguishes the Kansas sentencing scheme

in Brooks, where trial courts did not have discretion to impose a sentence beyond the

prescribed range unless a jury found aggravating factors and the state provided

advance notice of its intent to seek such a sentence. The Government asserts this

also distinguishes Carachuri-Rosendo, where the decision not to charge the

defendant as a recidivist had been in the hands of the state prosecutor—not the

court—and the prosecutor had declined to make such a charge.

                                         8
      Thus, factually, the Government contends that in 1999 Romero-León was

faced with the actual—not hypothetical—possibility of a 12-year sentence, even

though the prosecution never sought an aggravated sentence and the court only

sentenced him to nine years. How so? According to the Government, several

aggravating factors existed that the court could have used, sua sponte. First, the

court could have found Romero-León’s committing three similar drug offenses in a

short period of time to be an aggravating factor. See State v. Segotta, 672 P.2d 1129,

1132 (N.M. 1983) (listing “pattern of conduct indicating . . . serious threat to

society” as a potential aggravating factor). Second, the court could have found

Romero-León’s committing a third offense while under indictment for two others to

be an aggravating factor. Finally, for further support, the Government points out the

original indictment charged Romero-León with a crime carrying a “[b]asic sentence

of 9 years but not less than 6 years nor more than 12 years imprisonment,” and that

his plea agreement informed him that “[a]ny basic sentence for a felony may be

altered up to one third for aggravating . . . circumstances.” Aple’s Br. at 17. 2

      Romero-León objects to this line of reasoning under both state and federal law.

Under state law, Romero-León cites Frawley as definitive proof that the Government

has greatly exaggerated the “broad” role of a judge in New Mexico’s sentencing



      2
         Both the Government and Romero-León have moved to supplement the
record on appeal with various documents, including Romero-León’s original 1999
indictments. We grant these motions, and we have considered the documents.

                                           9
scheme. Here is what the New Mexico Supreme Court said in Frawley:

      [N]otwithstanding the broad statutory language [in § 31-18-15.1]
      implying that a judge in New Mexico may alter a sentence upward in
      any case, the actual fact is that a judge’s discretion to do so is quite
      limited. Long ago, we construed Section 31-18-15.1 to mean that the
      State must actually seek “enhancement” of a basic sentence on grounds
      of aggravating circumstances by filing a pleading so that the defendant
      may have “notice of the specific aggravating factors on which the state
      intends to rely.” Caristo v. Sullivan, 112 N.M. 623, 631 (1991)
      (emphasis added). In other words, in actual day-to-day operation of
      our sentencing laws, it is the State’s discretion, rather than the judge’s,
      that must be exercised before a sentence may be aggravated. . . .

172 P.3d at 153 (emphases added and omitted). Per Frawley, Romero-León argues

he did not face 12 years because the prosecution never sought an enhancement.

      Under federal law, Romero-León contends the Government’s view is

“incompatible with the central teaching of Carachuri-Rosendo,” Aplt’s Reply Br. at

4, which was that federal judges are not permitted to apply enhancements that state

officials declined to pursue. See Carachuri-Rosendo, 560 U.S. at 579–80 (“Were we

to permit a federal immigration judge to apply his own recidivist enhancement after

the fact . . . we would denigrate the independent judgment of state prosecutors to

execute the laws of those sovereigns.”); id. at 582 (“The prosecutor in

Carachuri-Rosendo’s [Texas] case declined to charge him as a recidivist. He has,

therefore, not been convicted of a felony punishable under the Controlled Substances

Act.”). In short, Romero-León argues the Government’s alleged aggravating factors

are sheer conjecture, since there is no evidence anyone ever considered them in the

state proceeding. See id. at 580 (“[T]he ‘hypothetical approach’ employed by the

                                          10
Court of Appeals introduces a level of conjecture at the outset of this inquiry that has

no basis in [precedent]. . . . [I]t focuses on facts . . . that could have but did not serve

as the basis for the state conviction and punishment.”). Finally, Romero-León

contends the indictment language cited by the Government is meaningless

boilerplate, and his plea agreement was conflicted, as it also contained language

stating the “maximum penalties” for his charges were nine years and “[if] the court

accepts this agreement, the defendant may be ordered to serve a period of

incarceration of up to nine (9) years.” (emphasis added). Aplt’s Br. at 31.

B. Analysis

       Romero-León gets the better of the dispute here.             Simply put, Frawley

devastates the Government’s state-law argument. There, the New Mexico Supreme

Court wrote, in plain terms, that “in actual day-to-day operation of our sentencing

laws, it is the State’s discretion, rather than the judge’s, that must be exercised

before a sentence may be aggravated.” Frawley, 172 P.3d at 153 (emphasis in

original). Furthermore, Frawley expressly states that this is not a new innovation;

rather, this system has been in place since “[l]ong ago.” Id. And a subsequent

citation indicates “[l]ong ago” is referring at least as far back as 1991—eight years

before Romero-León was sentenced. See Caristo, 818 P.2d 401.

       To be sure, Frawley held that § 31-18-15.1 was unconstitutional, and that this

decision on constitutionality could not be applied retroactively. See Frawley, 172

P.3d at 157–58. This conclusion, however, did not in any way nullify Frawley’s

                                            11
description of how New Mexico’s sentencing procedure was supposed to have

actually functioned for the several previous decades. Moreover, it is difficult to see

how Frawley’s description of New Mexico’s sentencing procedure could be

construed as dicta given that it was placed smack in the middle of, and was

intertwined with, the New Mexico Supreme Court’s pronouncement of its holding on

the constitutionality of aggravated sentences. See id. at 153; United States v. Neal,

249 F.3d 1251, 1257 n.7 (10th Cir. 2001) (noting that we have defined dicta as “a

statement in a judicial opinion that could have been deleted without seriously

impairing the analytical foundations of the holding” (citation omitted)).

      To summarize, per the New Mexico Supreme Court, New Mexico judges in

1999 were not imbued with unfettered discretion to enhance a defendant’s basic

sentence, regardless of what the New Mexico Court of Appeals may have (wrongly)

indicated at the time. See Whitney v. Bd. of Educ. of Grand Cnty., 292 F.3d 1280,

1287 (10th Cir. 2002) (“In interpreting state law, we are bound by the holdings of

the state’s highest court . . . .”). Instead, the prosecution was apparently required to

file a pleading giving Romero-León notice of potential aggravating factors. See

Frawley, 172 P.3d at 153. That did not happen here, thus we cannot say Romero-

León faced more than a nine-year sentence in 1999. So, under Brooks, Romero-

León’s 1999 drug crimes should not have triggered enhancement under the ACCA. 3


      3
          Though issued after Romero-León’s sentencing, Brooks nevertheless
                                                              (continued...)

                                          12
      Our footnote in Brooks discussing Romero-León’s case does not dictate

anything to the contrary. To reiterate, in Brooks we wrote:

      Our decision[] in . . . Romero-Leon . . . do[es] not contradict this
      holding. First and foremost, the Government does not rely on [this]
      case[].     Second, while in . . . Romero-Leon we did,
      post-Carachuri-Rosendo, rely on Hill . . . we never mentioned
      Carachuri-Rosendo . . . . ‘[W]e are generally not bound by a prior
      panel’s implicit resolution of an issue that was neither raised by the
      parties nor discussed by the panel.’ Third, not only was Romero-Leon
      unpublished, but it also is arguably distinguishable since the defendant
      there had aggravating circumstances that would have allowed for a
      sentence of ten years or more on his past state convictions.

Brooks, 751 F.3d at 1211 n.4 (internal citations omitted). Given that the original

Romero-León decision was unpublished, as we duly noted in Brooks, all of our

additional Brooks comments distinguishing Romero-León’s case are dicta and

therefore non-binding. See Tokoph v. United States, 774 F.3d 1300, 1303 (10th Cir.

2014). Moreover, the only comment that could possibly be construed as favorable

to the Government—the final one—was prefaced with the key word “arguably.”

That is to say, in Brooks we were already aware that arguments could be made on

both sides of its potential applicability to Romero-León’s case. Here, after being

briefed in full, we have heard these arguments and resolved the debate.

          Finally, we note that Carachuri-Rosendo, while not directly on point, also



      3
       (...continued)
controls here. See United States v. Rivera-Nevarez, 418 F.3d 1104, 1107 (10th Cir.
2005) (“Decisions of statutory interpretation are fully retroactive because they do not
change the law, but rather explain what the law has always meant.”).

                                          13
supports Romero-León. As Romero-León has noted, in Carachuri-Rosendo the

Supreme Court wrote that, “[w]ere we to permit a federal immigration judge to apply

his own recidivist enhancement after the fact . . . we would denigrate the independent

judgment of state prosecutors to execute the laws of those sovereigns.” Carachuri-

Rosendo, 560 U.S. at 579–80. A similar principle applies here. The State of New

Mexico chose not to pursue aggravated enhancements for Romero-León’s 1999 drug

crimes.   Indeed, there is no evidence that anyone in 1999—prosecutor or

judge—even considered the two specific aggravating factors put forth by the

Government here. For us to permit a federal district judge to, in essence, apply its

own enhancement well after the fact “would denigrate the independent judgment” of

New Mexico to execute its own laws. For Romero-León’s 1999 convictions, New

Mexico declined to seek an enhanced sentence.          He has, therefore, not been

convicted of enough “serious drug offense[s]” to render himself punishable under the

ACCA. Cf. United States v. Rodriquez, 553 U.S. 377, 389 (2008) (“[I]n those cases

in which the records that may properly be consulted do not show that the defendant

faced the possibility of a recidivist enhancement, it may well be that the Government

will be precluded from establishing that a conviction was for a[n ACCA-]qualifying




                                         14
offense.”). As such, we REVERSE and REMAND for the district court to re-

sentence Romero-León sans application of the ACCA.

                                   Entered for the Court,


                                   Bobby R. Baldock
                                   United States Circuit Judge




                                     15
