USA v. Diaz, et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
____________________
UNITED STATES OF AMERICA,
Plaintiff,
v. 	Case No. 1:22-cr-00896-MLG-3
ERMINIO GUILLERMO GONZALEZ,
Defendant.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO RECONSIDER
Defendant Erminio Gonzalez has numerous convictions ranging from drug trafficking to
reckless homicide by vehicle. Doc. 378 at 9-19. Moreover, he has often failed to comply with the
terms of probation associated with such convictions. See id. at 11-19. The result is a lengthy and
knotty criminal history that has led to difficulty ascertaining the appropriate punishment for the
instant federal charges—including whether Gonzalez is subject to the sentencing provisions of the
Armed Career Criminal Act (ACCA)1 and calculating his criminal history. These complexities
have led to the instant dispute.
At issue here is the United States’ Motion to Reconsider Memorandum Opinion and Order
on Armed Career Criminal Sentencing Objections, Doc. 367, filed July 23, 2025. The Government
asks the Court to review its prior holding that Gonzalez’s 2009 state drug trafficking conviction
1 The ACCA “establishes a minimum fifteen year [sic] sentence for anyone convicted under 18
U.S.C. § 922(g) who also has three separate convictions for a ‘violent felony’ or a ‘serious drug
offense.’” United States v. Villanueva, 821 F.3d 1226, 1239 (10th Cir. 2016) (quoting 18 U.S.C. §
924(e)). A “serious drug offense” pursuant to the ACCA includes “an offense under State law,
involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a
controlled substance . . . for which a maximum term of imprisonment of ten years or more is
prescribed by law.” 18 U.S.C. § 924(e)(2)(A).
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 1 of 15

2
did not constitute a “serious drug offense” pursuant to ACCA. See Docs. 357, 367. For the reasons
explained below, the Court grants the Government’s motion and revises its prior decision.
BACKGROUND
I. 	Gonzalez’s Relevant Prior Criminal History
In 2009, the State of New Mexico charged Gonzalez with trafficking a controlled substance
in violation of NMSA 1978, § 30-31-20 (2006) (“2009 Trafficking Conviction”) and possession
of a controlled substance (“2009 Possession Conviction”). See Doc. 305-8 at 1; Doc. 305-10 at 2-
3.2 Because the state initially filed these charges as two separate actions, each case was associated
with a separate charging document. See Doc. 305-8 at 1.
On June 17, 2009, the state prosecutor created and verified a supplemental information.
Doc. 347-1 at 1-3 (“2009 Supplemental Information”). That document is messy. The heading
identifies the relevant case numbers as those pertaining to the 2009 Possession Conviction, No. D-
202-CR-2009-2147, as well as an unrelated possession case from 2007, No. 202-D-CR-2007-99.
Doc. 347-1 at 1. But (as seen below) it does not include the case number for the 2009 Trafficking
Conviction, No. 202-2009-2985. See id.; Doc. 329-1 at 1.
2 Gonzalez also admitted to violating his probation for a third, separate crime which is not relevant
to whether the ACCA enhancement applies to his case. See Doc. 305-8 at 1.
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 2 of 15

3
Doc. 347-1 at 1. The body of the 2009 Supplemental Information identifies three of Gonzalez’s
prior convictions, but they do not align with the document’s heading.
Id. Paragraph 1 provides that Gonzalez is the same person convicted of possession of a controlled
substance in the Eleventh Judicial District Court, San Juan County, on July 13, 2001. Id. Paragraph
2 reads that Gonzalez is the same person convicted of robbery in the Second Judicial District,
Bernalillo County, on February 2, 2005. Id. Paragraph 3, which addresses the 2009 Trafficking
Conviction, states Gonzalez is the same person convicted of trafficking a controlled substance “as
charged in Criminal Cause No. CR2009-02985 INFORMATION, and convicted on June 18, 2009,
in the Second Judicial District Court.” Id. Further confusing the matter is that the 2009
Supplemental Information appears to add a habitual offender enhancement to Gonzalez’s 2001
possession charge—even though it is not a qualifying offense. See id. at 2.
It states that “the defendant’s sentence for the offense enumerated Paragraph 1 shall be enhanced
pursuant to Section 31-18-17(B), NMSA 1978, as amended, a four (4) year enhancement.” Id. at
2.
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 3 of 15

4
On June 18, 2009, Gonzalez pled guilty to the 2009 Trafficking Charge and the 2009
Possession Conviction. Doc. 305-8 at 1. The Repeat Offender and Disposition Agreement (“Plea
Agreement”) memorializing his guilty plea identifies the maximum penalty for the 2009
Trafficking Conviction (a second-degree felony) as a “basic sentence of nine years . . . .” Id. at 2.
It included the possibility that Gonzalez would be treated as a habitual offender if he incurred
additional charges. Id. at 3. Gonzalez was ultimately sentenced to a nine-year suspended sentence
with an actual four-year term of incarceration followed by five years of probation. 3 Doc. 305-10
at 3-4.
After being released from custody but while still on probation for the 2009 charges,
Gonzalez was arrested for reckless homicide by vehicle.4 Doc. 378 at 16-17 ¶ 52. Thereafter, on
May 28, 2013, a state prosecutor filed a supplemental information in the case for the 2009
Trafficking Conviction. Doc. 347-1 at 4 (“2013 Supplemental Information”). This new charging
document, which identifies the case number for the 2009 Trafficking Conviction, was filed in open
court. Id. It provides that “[D]efendant’s sentence [for the 2009 Trafficking Conviction] shall be
enhanced pursuant to Section 31-18-17(B), NMSA 1978, as amended, a four year [sic]
enhancement.” Id. at 4-5.
3 The state court appeared to apply the habitual offender enhancement to the 2009 Trafficking
Conviction by ordering an actual sentence of four years “pursuant to the Habitual Offender
Sentence” in addition to the nine years suspended sentence. Doc. 305-10 at 3. As discussed herein,
absent a charging document from the prosecution applying the enhancement to the 2009
Trafficking Conviction, the court could not apply the habitual offender enhancement. See
Discussion II.A, infra 8-11. Gonzalez was sentenced to eighteen months for the 2009 Possession
charge to be served concurrently with the 2009 Trafficking Charge. Doc. 305-10 at 2.
4 Gonzalez was arrested for vehicular homicide on March 24, 2012, and he was sentenced on April
18, 2014. Doc. 378 at 18 ¶ 55.
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 4 of 15

5
Id. In accordance with this language, the Second Judicial District Court revoked Gonzalez’s
probation and imposed “a four year [sic] habitual offender enhancement on count one of the
indictment [in the 2009 trafficking case.]” Doc. 305-11 at 2. Gonzalez served this sentence and
was released on parole in May of 2018. Doc. 378 at 18 ¶ 54.
II. 	Applying the ACCA Enhancement to Gonzalez’s 18 U.S.C. § 922(g)(1) Conviction
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 5 of 15

6
In 2024, a jury convicted Gonzalez of being a felon in possession of a firearm and
ammunition and possessing fentanyl in violation of 18 U.S.C. § 922(g)(1) and 21 U.S.C. § 844,
respectively. Doc. 378 at 1-2, 5. When Probation initially prepared the relevant Presentence
Investigation Report (“PSR”), it concluded that the ACCA did not apply. Doc. 300 at 26-27. The
United States objected. It asserted that Gonzalez’s prior state convictions met the statutory
prerequisites necessitating the ACCA’s application. Doc. 304 at 4. Probation ultimately agreed
and issued an addendum to the PSR adopting the Government’s position. Doc. 320 at 10. The
amended PSR included a corresponding fifteen–year mandatory minimum sentence. Doc. 322 at
9 ¶ 41, 24 ¶¶ 88- 89.5
Gonzalez objected to the amended PSR on two separate grounds. First, he asserted that the
2009 Trafficking Conviction does not qualify as a “serious drug offense” under 18 U.S.C. § 924(e).
Doc. 329 at 1-5. He further argued that his prior state robbery convictions do not constitute “crimes
of violence” for purposes of ACCA.6 Id. at 5-9.
On April 8, 2025, the Court held a hearing on Gonzalez’s objections. See Doc. 347 (Clerk’s
Minutes); Doc. 348 (Hearing Transcript). Probation Officer Jon-Paul Barabe testified during that
proceeding. It was during his testimony that the 2009 Supplemental Information and the 2013
Supplemental Information were first addressed. Id. at 23:3-26:20, 29:3-31:2; Doc. 347-1. The
Court had not previously been aware of those filings. See Docs. 304, 305, 329.
5 Following the Court’s June 24, 2025 Memorandum Opinion, Probation issued a third amended
PSR. Doc. 378 at 1.
6 Gonzalez was indicted in state court for two separate purse snatchings in 2004. Doc. 305-1 at 1;
Doc. 305-3 at 1. He pled guilty to both charges in 2005. Doc. 305-4.
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 6 of 15

7
Following the hearing, the Court issued its Memorandum Opinion and Order concluding
that Gonzalez’s conviction for the 2009 Trafficking Conviction was not a “serious drug offense”
under the ACCA. Doc. 357 at 5-8. The underlying reasoning stemmed from the state prosecutor’s
decision not to seek a habitual offender enhancement for that crime. Id. at 6-8. Simply put,
Gonzalez’s punishment for the 2009 Trafficking Conviction, which (apparently) excluded a
habitual offender enhancement, was insufficient to trigger the ACCA’s harsher sentencing
provisions. Id. at 6 (discussing NMSA 1978, § 31-18-15 (2024) and § 31-18-17(B) (2003)).
Consequently, the Court sustained Gonzalez’s objection. Id. at 8.
The Court also addressed Gonzalez’s argument that his two prior robbery convictions did
not qualify as predicate ACCA offenses. His position, if accepted, would necessarily require a
finding that Tenth Circuit decisional authority was no longer binding—i.e. that it had been
implicitly overruled by other opinions. Unwilling to take that leap, the Court ultimately ruled that
Gonzalez’s robbery convictions constituted violent felonies under the ACCA. Id. at 8-10
(discussing the application of United States v. Garcia, 877 F.3d 944 (10th Cir. 2017)). That holding
did not impact the result, however, because the Court held that Gonzalez’s 2009 Trafficking
Conviction did not qualify as an ACCA predicate offense. Id. at 10.
III. 	The Government’s Motion to Reconsider
After the Court issued its opinion, the United States timely filed a motion to reconsider.
Doc. 367. There, the Government asserts that the two supplemental informations demonstrate the
habitual offender enhancement applied to the 2009 Trafficking Conviction, thereby qualifying the
conviction as a serious drug offense. Id. at 2-8. In response, Gonzalez reiterates his contention that
the United States failed to meet its burden in establishing that he faced a habitual offender
enhancement for his 2009 trafficking sentence. See generally Doc. 369.
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 7 of 15

8
DISCUSSION
I. 	Motions to Reconsider
Motions to reconsider are permissible in the criminal context even though the Federal Rules
of Criminal Procedure do not specifically authorize them. See United States v. Randall, 666 F.3d
1238, 1241 (10th Cir. 2011). This dispensation recognizes that “a district court should have the
opportunity to correct alleged errors in its dispositions.” United States v. Christy, 739 F.3d 534,
539 (10th Cir. 2014). Though permissible, such motions should not be filed merely “to revisit
issues already addressed or advance arguments that could have been raised earlier.” Id. “A motion
to reconsider is appropriate in those limited instances when the court has misapprehended the facts,
a party’s position, or the law.” Id. (citing Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000)). “Specific grounds include: (1) an intervening change in the controlling law, (2) new
evidence previously unavailable, and (3) the need to correct clear error or prevent manifest
injustice.” Id. (internal quotation marks omitted) (quoting Servants of Paraclete, 204 F.3d at 1012).
II. 	The 2009 Trafficking Conviction is a “Serious Drug Offense” Under the ACCA
A. 	2009 Supplemental Information
Gonzalez’s 2009 Trafficking Conviction may only be considered an ACCA predicate
offense if an enhancement was validly applied to his sentence. Otherwise, Gonzalez faced the basic
sentence of nine years—which falls short of the ten years or more of imprisonment required for a
“serious drug crime.” See § 924(e)(2)(A); United States v. Romero-León, 622 F. App’x 712, 716-
17 (10th Cir. 2015); Doc. 305-8 at 2; Doc. 305-10 at 2; see also State v. Frawley, 2007-NMSC-
057, ¶ 22, 143 N.M. 7, 172 P.3d 144 (“In New Mexico the basic sentence for a noncapital felony
shall be imposed unless the court alters such sentence.”). The United States argues the 2009
Supplemental Information provided for an enhancement to the 2009 Trafficking Conviction. In
support of that contention, the Government points to language referencing and purportedly
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 8 of 15

9
enhancing Gonzalez’s sentence for a 2001 possession conviction from the Eleventh Judicial
District Court. Doc. 367 at 5 n.2; Doc. 373 at 3-4. That conviction, however, is not an ACCA
predicate offense as Gonzalez (apparently) served little to no time for that charge. See Doc. 378 at
12 ¶ 46; § 924(e)(2)(A). The United States acknowledges this but characterizes the issue as a
clerical error. Doc. 367 at 5 n.2. It argues the 2009 Supplemental Information erroneously
references the 2001 conviction and “should have” instead enhanced the 2009 Trafficking
Conviction. Id. That is plausible, but the United States offers no evidentiary support to substantiate
its position.7 See Docs. 367, 373. Instead, the United States assumes the state prosecutor pursued
an enhancement for the 2009 Trafficking Conviction—despite the language indicating the
enhancement was sought for the 2001 possession conviction. Doc. 367 at 5 n.2. More is required.
Mere speculation from the Government fails to prove by a preponderance of the evidence that the
ACCA enhancement is appropriate. Cf. United States v. Garcia-Martinez, 730 F. App’x 665, 673
(10th Cir. 2018) (holding to prevail on a Brady claim a “defendant must marshal arguments that
are more than ‘merely speculative’ that demonstrate by a preponderance of the evidence that the
three Brady criteria are satisfied . . . ”).
The United States claims that other court filings, including the Plea Agreement, Doc. 305-
8, and the Judgment, Sentence, and Commitment (“J&S”), Doc. 305-10, demonstrate the state
prosecutor intended to bring a sentencing enhancement for Gonzalez’s 2009 Trafficking
Conviction.8 Doc. 367 at 5-7. Even if true, this argument is immaterial. Under New Mexico law,
7 U.S. Probation Officer Barabe did not and could not testify on that issue. Doc. 369 at 3; Doc. 348
at 10:1-35:9.
8 Since the Court concludes the 2013 Supplemental Information establishes that the State filed the
required information for the habitual offender enhancement, the Court will not address the United
States’ arguments regarding the Plea Agreement and J&S in detail.
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 9 of 15

10
a district attorney must “file an information charging [a] person as a habitual offender” before a
court may apply a habitual offender sentencing enhancement. See NMSA 1978, § 31-18-19 (1977)
(providing that if “it appears that a person convicted of a noncapital felony is or may be a habitual
offender, it is the duty of the district attorney of the district in which the present conviction was
obtained to file an information charging that person as a habitual offender”); NMSA 1978, 31-18-
20 (1983) (explaining the procedure a court must follow when sentencing an individual as a
habitual offender, which requires that the person has “been charged as a habitual offender under
the provisions of Section 31-18-19”); cf. Frawley, 2007-NMSC-057, ¶ 22, (“[I]n 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.”). A court may not apply the enhancement sua
sponte. See Romero-León, 622 F. App’x at 718.
The 2009 Supplemental Information does not charge Gonzalez as a habitual offender for
the 2009 Trafficking Conviction, and therefore, it cannot serve as evidence that an enhancement
was properly sought at that time. See Doc. 347-1 at 1-2. And although the J&S indicates a four-
year habitual offender sentencing enhancement was applied to the 2009 Trafficking Conviction,
that cannot be so. There is nothing in the record demonstrating that the prosecutor filed the
necessary pleading charging Gonzalez as a habitual offender in 2009. See Doc. 305-10 at 2-3;
NMSA 1978, §§ 31-18-19 to -20; State v. Gage, No. A-1-CA-40563, ¶ 21, 2025 WL 253064 (N.M.
Ct. App. Jan. 21, 2025) (“No authority, however, supports a conclusion that the district court has
jurisdiction to impose a habitual offender sentence if the defendant has not been so ‘charged’ at all
. . . .”); State v. Romero, 2023-NMSC-008, ¶ 32, 528 P.3d 640 (“An illegal sentence is void and a
nullity.”). Accordingly, the Court finds that 2009 Supplemental Information is insufficient
evidence that a habitual offender enhancement was sought or properly applied by the state
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 10 of 15

11
prosecution in 2009. See Doc. 347-1 at 1-2; see also Romero-León, 622 F. App’x at 718
(concluding the defendant’s drug crimes did not trigger the ACCA because the New Mexico
prosecutor did not file the requisite pleadings to enhance the defendant’s state conviction).
B. 	The 2013 Supplemental Information
By contrast, the 2013 Supplemental Information is absent of the ambiguities found in the
2009 Supplemental Information.9 Contrast Doc. 347-1 at 1-2 with Doc. 347-1 at 4-5. It provides
that the sentence imposed for the 2009 Trafficking Conviction shall be enhanced pursuant to New
Mexico’s habitual offender law. 10 Doc. 347-1 at 4-5. Although the 2013 Supplemental Information
9 The United States did not address the 2013 Supplemental Information in its initial briefing on
this matter. It raised the issue for the first time in its motion to reconsider. See Doc. 304; Doc. 313.
10 Gonzalez argues the United States bears the burden to prove with “certainty” that a prior
conviction is a predicate offense under the ACCA. Doc. 369 at 4. Taylor v. United States produced
the “‘certainty’ standard [used] to determine whether an offense qualifies for ACCA enhancement
. . . .” Taylor, 495 U.S. 575 (1990); United States v. Trent, 884 F.3d 985, 996 (10th Cir. 2018). In
Taylor, the Supreme Court “established the rule for determining when a defendant’s prior
conviction counts as one of ACCA’s enumerated predicate offenses” under § 924(e)(2)(B)(ii), i.e.,
whether the prior conviction is a “violent felony.” See Descamps v. United States, 570 U.S. 254,
260-61 (2013). “If the relevant statute has the same elements as the ‘generic’ ACCA crime, then
the prior conviction can serve as an ACCA predicate; so too if the statute defines the crime more
narrowly, because anyone convicted under that law is ‘necessarily . . . guilty of all the [generic
crime’s] elements.’” Id. at 261 (alteration in original) (quoting Taylor, 495 U.S. at 599) But the
ACCA’s definition of “serious drug offense” under § 924(e)(2)(A)(ii) “does not require that the
state offense match certain generic offenses,” it “requires only that the state offense involve the
conduct specified in the federal statute.” See Shular v. United States, 589 U.S. 157, 159-62 (2020).
This may explain why, in cases in which the Tenth Circuit has weighed whether a prior conviction
is a “serious drug offense,” the Taylor certainty test is neither applied nor mentioned. See, e.g.,
Villanueva, 821 F.3d at 1239-40 (concluding the district court did not err in classifying the
defendant’s prior conviction for distribution of marijuana as a “serious drug offense”); United
States v. Coleman, 656 F.3d 1089, 1090-93 (10th Cir. 2011) (concluding the defendant’s drug
trafficking convictions qualified as “serious drug offenses” under the ACCA); United States v.
Swindell, 109 F. App’x 244, 244-45 (10th Cir. 2004) (concluding a defendant’s prior conviction
was not a “serious drug offense” under the ACCA). To the extent the certainty standard would
apply, the Court is convinced that Gonzalez’s 2009 Trafficking Conviction “involve[d] . . . conduct
specified in the federal statute.” See Shular, 589 U.S. at 157; § 924(e)(2)(A)(ii). The Court is also
certain Gonzalez faced more than the statutorily required ten years of imprisonment because the
2013 Supplemental Information timely charged Gonzalez’s 2009 Trafficking Conviction with a
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 11 of 15

12
was filed roughly four years after the J&S was entered by the district court, that fact is not
dispositive. New Mexico state law allows state prosecutors to file an information requesting the
habitual offender enhancement “at any time following conviction, as long as the sentence
enhancement is imposed before the defendant finishes serving the term of incarceration and any
parole or probation that may follow that term.” State v. Trujillo, 2007-NMSC-017, ¶ 10, 141 N.M.
451, 157 P.3d 16 (internal quotation marks omitted) (quoting State v. Freed, 1996-NMCA-044, ¶
8, 121 N.M. 569, 915 P.2d 325); see also NMSA 1978, § 31-18-19 (1977) (“If at any time, either
after sentence or conviction, it appears that a person convicted of a noncapital felony is or may be
a habitual offender, it is the duty of the district attorney . . . to file an information charging that
person as a habitual offender.”).
Notwithstanding that language, Gonzalez suggests the 2013 Supplemental Information
should be disregarded. In his view the Court must limit its consideration to “‘the charging
document to which [the defendant] pleaded guilty’” and not orders entered years later due to
probation revocations.11 Doc. 329 at 5 (alteration in original) (quoting United States v. Thornton,
766 F. 3d 875, 878 (8th Cir. 2014)). But the lone case Gonzalez relies upon to support his
contention is both nonbinding and distinguishable. Id.
four-year habitual offender enhancement, which the sentencing court was obligated to impose
under New Mexico law. Doc. 347-1 at 4; see Trujillo, 2007-NMSC-017, ¶ 10; NMSA 1978, § 31-
18-20(c). Therefore, it is certain that Gonzalez’s 2009 Trafficking Conviction is a “serious drug
offense” per the ACCA. Doc. 305-8 at 1-2; Doc. 305-10; Doc. 347-1 at 4-5.
11 In Shepard v. United States, 544 U.S. 13 (2005), “the Supreme Court held that the ‘charging
document,’ the ‘terms of a plea agreement,’ the ‘transcript of colloquy between judge and
defendant,’ or ‘some comparable judicial record,’ is the permissible universe of evidence a court
may consider in determining whether a guilty plea establishes a predicate offense” under the
ACCA. United States v. Cook, 550 F.3d 1292, 1295 (10th Cir. 2008) (quoting Shepard, 544 U.S.
at 26).
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 12 of 15

13
In Thornton, the defendant asserted the government failed to establish his 1992 Kansas
burglary conviction was a qualifying violent felony under the ACCA. 766 F. 3d at 876.
Specifically, the defendant argued “the district court was left with insufficient evidence to
determine which subsection of the 1992 Kansas burglary statute he pleaded guilty to.” Id. at 876,
878. The government offered only a criminal complaint and “various journal entries” when arguing
the Kansas burglary was a qualifying violent felony. Id. at 878. The criminal complaint, however,
was not the charging document to which the defendant pleaded guilty. Id. at 878-79. Rather, the
defendant pled guilty to a criminal information, a pleading that Kansas distinguishes from a
criminal complaint. Id. (citing Kan. Stat. Ann. § 22-3201). Based on these facts, the Eighth Circuit
ruled the criminal complaint did not establish which subsection of the 1992 Kansas burglary statute
was implicated in defendant’s plea. Id. at 879. Expounding, the court reasoned that “[t]he
additional documents submitted in the form of journal entries fail[ed] to provide a sufficient link
between the complaint and the information or to offer any other information upon which the district
court could rely when determining whether Thornton pleaded guilty to a generic burglary for
purposes of the ACCA.” Id. The Eighth Circuit therefore concluded “the district court lacked
sufficient information upon which to find that Thornton pleaded guilty to generic burglary, a
qualifying violent felony for purposes of the ACCA.” Id.
The instant facts differ from those presented in Thornton. The 2013 Supplemental
Information is unequivocal; it plainly supplements the Information originally filed in 2009 for the
2009 Trafficking Conviction. Doc. 347-1 at 4-5; Doc. 329-1; see also State v. Harris, 1984-
NMCA-003, ¶ 11, 101 N.M. 12, 677 P.2d 625 (finding a supplemental information which alleged
the defendant was a habitual offender without charging a separate crime was a valid charge).
Unlike the criminal complaint in Thornton, there is no dispute that Gonzalez pled guilty to the
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 13 of 15

14
2009 trafficking charge listed in the original information in that case. Doc. 329-1; see also Doc.
305-8 at 2-3. The 2013 Supplemental Information can therefore be relied upon as it is part of the
charge Gonzalez pled guilty to on June 18, 2009. Doc. 305-8.
Gonzalez further asserts that the Court may not properly rely on the Order Revoking
Probation in reaching its conclusion because it pertains to separate criminal charge (vehicular
homicide) that is not an ACCA predicate offense. Doc. 329 at 5. But once the state prosecutor filed
the 2013 Supplemental Information and charged Gonzalez as a habitual offender, 12 the state court
was obligated to impose the enhancement. Trujillo, 2007-NMSC-017 at ¶ 10; NMSA 1978, § 31-
18-20(C). 	Notably, 	Gonzalez 	was 	aware 	of 	this 	potential 	outcome. 	Gonzalez 	expressly
acknowledged that he understood the State would pursue a habitual offender enhancement if he
continued to break the law “after he enters his plea and before he completes his sentence in this
case[.]” Doc. 305-8 at 3; Montoya v. New Mexico, 55 F.3d 1496, 1499 (10th Cir. 1995) (finding
that a plea agreement in a New Mexico state criminal case “unambiguously put [the defendant] on
notice that the state would seek a further habitual offender enhancement if he violated the terms of
the agreement, and that the enhancement might be based on any prior felony convictions
acknowledged in the agreement”). The nature of the offense triggering the application of the
habitual offender enhancement to Gonzalez’s 2009 Trafficking Conviction is therefore irrelevant.
Because the 2013 Supplemental Information timely sought to charge Gonzalez’s 2009
Trafficking Conviction with the habitual offender enhancement, Gonzalez faced an additional four
12 The state prosecutor would only need to list Gonzalez’s prior felony convictions in order for the
district court to find that Gonzalez was the “same person and that he was in fact convicted of the
previous . . . crimes as charged.” NMSA 1978, § 31-18-20(C). Gonzalez admitted he was convicted
of four felonies in 2001, 2005, and 2008 in the Plea Agreement. Doc. 305-8 at 1-2. These admitted
felony convictions are listed in Paragraphs 1 and 2 of the 2013 Supplemental Information. Doc.
347-1 at 4.
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 14 of 15

15
years in prison because the state court was obligated to impose the enhancement pursuant to New
Mexico law. Trujillo, 2007-NMSC-017, ¶ 10; NMSA 1978, § 31-18-20(C). Gonzalez’s 2009
Trafficking Conviction therefore qualifies as a “serious drug offense” under the ACCA because
he faced more than ten years of imprisonment. Doc. 305-10 at 2-3; Doc. 347-1 at 4-5.
III. 	The ACCA Enhancement Applies to Gonzalez’s Sentence in this Case
As discussed in the Court’s Memorandum Opinion and Order, Gonzalez’s two state
robbery convictions are predicate ACCA offenses because binding Tenth Circuit precedent
concludes New Mexico robbery is a violent crime under the ACCA. Doc. 357 at 8-10 (discussing
the application of United States v. Garcia, 877 F.3d 944 (10th Cir. 2017)). After reconsidering the
record, Gonzalez’s 2009 Trafficking Conviction qualifies as a “serious drug offense” per the
ACCA. Therefore, the ACCA enhancement applies to Gonzalez’s sentence regarding his 18 U.S.C.
§ 922(g)(1) conviction as he has three predicate offenses. See 18 U.S.C. § 924(e).
CONCLUSION
For the reasons explained above, the Court grants the United States’ Motion to Reconsider,
Doc. 367. The Court overrules Gonzalez’s objection to his 2009 trafficking conviction. Doc. 329
at 1-5. The mandatory fifteen-year minimum sentence associated with the ACCA shall be applied
in determining Gonzalez’s sentence. See 18 U.S.C. § 924(e). The PSR, Doc. 378, shall be amended
accordingly.
It is so ordered.
UNITED STATES DISTRICT JUDGE
MATTHEW L. GARCIA
Case 1:22-cr-00896-MLG Document 383 Filed 12/03/25 Page 15 of 15