FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 19, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 17-2099
(D.C. Nos. 2:16-CV-00583-MV-KRS &
LAWRENCE PAUL TOLENTINO, 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