FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 12, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2062
(D.C. Nos. 1:16-CV-00410-LH-CG &
JONATHAN SANDOVAL, 1:11-CR-02992-LH-1)
(D. N.M.)
Defendant - Appellant.
_________________________________
ORDER DENYING
CERTIFICATE OF APPEALABILTIY*
_________________________________
Before TYMKOVICH, Chief Judge, HARTZ and O’BRIEN, Circuit Judges.
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Jonathan Sandoval is a federal prisoner who seeks a certificate of appealability
(COA) to appeal the denial of his motion under 28 U.S.C. § 2255. See 28 U.S.C.
§ 2253(c)(1)(B) (requiring a COA to appeal the denial of a § 2255 motion). After he
pleaded guilty to being a felon in possession of ammunition, 18 U.S.C. § 922(g)(1),
the district court sentenced him to 15 years in prison under the Armed Career
Criminal Act (ACCA), see id. § 924(e)(1), based on at least three prior convictions in
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order is not binding precedent, except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.
New Mexico for residential burglary, see N.M. Stat. Ann. § 30-16-3(A).1 Sandoval
moved to vacate his sentence under § 2255, arguing residential burglary encompasses
more conduct than generic burglary for purposes of applying the ACCA. The district
court denied relief and also denied a COA.
To obtain a COA from this court, Sandoval must make “a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He must show
“reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003) (internal quotation marks omitted).
Sandoval’s arguments might have been debatable before our decision in United
States v. Turrieta, No. 16-2281, 2017 WL 5709612 (10th Cir. Nov. 28, 2017), but
they are no longer. Turrieta held a New Mexico conviction for residential burglary
qualifies as a generic burglary under the ACCA. Id. at *6. Thus, no reasonable jurist
1
New Mexico’s burglary statute states:
Burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft,
dwelling or other structure, movable or immovable, with the intent to commit any
felony or theft therein.
A. 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.
B. Any person who, without authorization, enters any vehicle, watercraft,
aircraft or other structure, movable or immovable, with intent to commit any
felony or theft therein is guilty of a fourth degree felony.
N.M. Stat. Ann. § 30-16-3.
2
would debate the district court’s decision or debate whether Sandoval’s arguments
deserve encouragement to proceed further. They do not. Accordingly, we deny a
COA and dismiss this appeal.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
3