United States v. Tolentino, No. 17-2099 (10th Cir. 2017)
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FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _________________________________ UNITED STATES OF AMERICA, December 19, 2017 Elisabeth A. Shumaker Clerk of Court Plaintiff-Appellee, v. LAWRENCE PAUL TOLENTINO, No. 17-2099 (D.C. Nos. 2:16-CV-00583-MV-KRS & 2:06-CR-00842-MV-1) (D. N.M.) Defendant-Appellant. _________________________________ ORDER DENYING A CERTIFICATE OF APPEALABILITY _________________________________ Before LUCERO, BACHARACH, and MORITZ, Circuit Judges. _________________________________ Mr. Lawrence Tolentino seeks a certificate of appealability to appeal the district court’s denial of his 28 U.S.C. § 2255 motion. We deny the certificate and dismiss this appeal. Mr. Tolentino pleaded guilty to being a felon in possession of a firearm and was sentenced to 15 years’ imprisonment. This sentence was based in part on an enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1). This enhancement was based in part on two convictions for residential burglary under N.M. Stat. Ann. § 30-16-3(A). 1 Roughly nine years after Mr. Tolentino’s sentencing, the Supreme Court invalidated the ACCA’s residual clause (18 U.S.C. § 924(e)(2)(B)(ii)) in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 2556-63 (2015). 2 The residual clause defines a “violent felony” to include “any crime punishable by imprisonment for a term exceeding one year . . . that . . . involves conduct that presents a serious potential risk of physical injury to another.” In light of Johnson, Mr. Tolentino moved to vacate his sentence under § 2255, arguing that burglary of a dwelling under the New Mexico statute is broader than the generic form of burglary. See Taylor v. United States, 495 U.S. 575, 599 (1990). Thus, Mr. Tolentino moved for resentencing without the ACCA enhancement. The district court denied this motion, and Mr. Tolentino asks us to issue a certificate of appealability. We can issue the certificate only upon a showing “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or 1 That statute provides: “Any person who, without authorization, enters a dwelling house with intent to commit any felony or theft therein is guilty of a third degree felony.” 2 This holding is retroactively applicable to cases on collateral review. Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257, 1268 (2016). 2 that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). We recently issued an opinion controlling on the underlying issue. In United States v. Turrieta, we held that convictions under N.M. Stat. Ann. § 30-16-3(A) match the generic form of burglary, satisfying the enumerated-offense clause. 3 875 F.3d 1340, 1347 (10th Cir. 2017). Thus, we concluded that “the ACCA applied independently of the Residual Clause.” Id. Mr. Tolentino makes the same argument that we rejected in Turrieta. We therefore deny a certificate of appealability and dismiss this appeal. Entered for the Court Robert E. Bacharach Circuit Judge 3 The enumerated-offense clause defines a “violent felony” as “any crime punishable by imprisonment for a term exceeding one year . . . that . . is burglary, arson, or extortion, [or] involves use of explosives.” 18 U.S.C. § 924(e)(2)(B)(ii). 3
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