FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 1, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 17-2064
(D.C. Nos. 1:15-CV-01188-JB-SMV
MARCOS SANCHEZ, and 1:04-CR-01685-JB-1)
(D. N.M.)
Defendant - Appellant.
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ORDER AND JUDGMENT *
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Before MATHESON, BACHARACH, and McHUGH, Circuit Judges.
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The defendant, Mr. Marcos Sanchez, was convicted in 2006 of
possessing a firearm after a prior felony conviction and sentenced to
fifteen years’ imprisonment. See 18 U.S.C. § 922(g)(1). The sentence was
enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1),
which created a fifteen-year mandatory minimum. In district court, Mr.
*
We have determined that oral argument would not materially aid our
consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.
34.1(G). Thus, we have decided the appeal based on the briefs.
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But our order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
Sanchez unsuccessfully challenged the sentence under 28 U.S.C. § 2255.
We affirm.
* * *
The Armed Career Criminal Act would have been triggered by three
or more past convictions for violent felonies or serious drug crimes.
Applying the Armed Career Criminal Act, the district court characterized
the crimes underlying Mr. Sanchez’s past convictions as “violent felonies.”
All of these convictions were for residential burglary under New Mexico
law.
Under the Armed Career Criminal Act, a felony conviction could be
considered a “violent felony” in one of three ways.
First, under the “elements clause,” a conviction would constitute a
“violent felony” if an element consisted of the use, attempted use, or
threatened use of physical force against another person. 18 U.S.C.
§ 924(e)(2)(B)(i).
Second, under the “enumerated-offense clause,” a conviction would
count as a “violent felony” if it was for burglary, arson, extortion, or
another crime involving the use of explosives. 18 U.S.C.
§ 924(e)(2)(B)(ii).
Third, under the “residual clause,” a conviction would constitute a
“violent felony” if it otherwise involved conduct creating a serious
potential risk of physical injury to another person. Id.
2
Since the sentencing took place, the Supreme Court has held that the
residual clause is unconstitutionally vague. Johnson v. United States, 135
S. Ct. 2551, 2556-63 (2015). Mr. Sanchez relies on the constitutional
infirmity of the residual clause, arguing that the sentence enhancement
would no longer be permissible.
To decide this appeal, we must determine whether residential
burglary under New Mexico law would constitute a “violent felony” under
the Armed Career Criminal Act. We can no longer rely on the residual
clause because it is unconstitutionally vague, and the government does not
invoke the elements clause. As a result, the sentence could be enhanced
only if the New Mexico crime of residential burglary would satisfy the
enumerated-offense clause.
We recently addressed this issue in United States v. Turrieta, holding
that a conviction for residential burglary in New Mexico satisfies the
enumerated-offense clause. 875 F.3d 1340 (10th Cir. 2017). Mr. Sanchez
acknowledges that Turrieta forecloses relief but argues that Turrieta was
wrongly decided. Appellant’s Supp. Br., passim (Dec. 12, 2017). We
recently denied a petition for rehearing in Turrieta and are obligated to
follow that opinion. United States v. Tafoya, 557 F.3d 1121, 1129 (10th
3
Cir. 2009). As a result, we affirm the denial of Mr. Sanchez’s § 2255
motion.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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