                                                                     FILED
                                                              United States Court of
                                 PUBLISH                          Appeals
                                                                  Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                              November 28, 2017
                      FOR THE TENTH CIRCUIT                   Elisabeth A. Shumaker
                      _________________________________           Clerk of Court

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                  No. 16-2281


PAUL A. TURRIETA,

      Defendant - Appellant.
                     _________________________________

             Appeal from the United States District Court
                     for the District of New Mexico
     (D.C. Nos. 1:16-CV-00395-JAP-KK and 1:14-CR-00425-JAP-1)
                      _________________________________

Michael A. Keefe, Assistant Federal Public Defender, Office of the Federal
Public Defender, Albuquerque, New Mexico, for Defendant-Appellant.

C. Paige Messec, Assistant United States Attorney (James D. Tierney,
Acting United States Attorney, with her on the brief), Office of the United
States Attorney, Albuquerque, New Mexico, for Plaintiff-Appellee.
                      _________________________________

Before KELLY, HOLMES, and BACHARACH, Circuit Judges.
                  _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

     This appeal grew out of the sentencing of Mr. Paul Turrieta for

possession of a firearm and ammunition after a felony conviction. See 18

U.S.C. § 922(g)(1). The district court imposed a 15-year sentence based on
the Armed Career Criminal Act (ACCA) and three past convictions in New

Mexico for residential burglary. Mr. Turrieta moved to vacate the sentence

under 28 U.S.C. § 2255, arguing that the district court had relied on the

ACCA’s residual clause and that this clause is unconstitutionally vague.

The district court denied the motion, and Mr. Turrieta appeals. We affirm.

I.        Classification of an Offense as a Violent Felony

          The ACCA provides a 15-year mandatory minimum and increases the

maximum sentence to life imprisonment if the defendant has three prior

convictions for a “violent felony.” 18 U.S.C. § 924(e)(1). A felony

conviction can qualify as a “violent felony” if the underlying offense

satisfies the Elements Clause, the Enumerated-Offense Clause, or the

Residual Clause.

     1.        Elements Clause: An element of the offense includes the use,
               attempted use, or threatened use of physical force against the
               person of another. Id. § 924(e)(2)(B)(i).

     2.        Enumerated-Offense Clause: The offense is burglary, arson,
               extortion, or a crime involving the use of explosives. Id.
               § 924(e)(2)(B)(ii).

     3.        Residual Clause: The crime otherwise creates “a serious
               potential risk of physical injury to another.” Id.
               § 924(e)(2)(B)(ii).

          As Mr. Turrieta argues, the Residual Clause is unconstitutionally

vague. Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 2556-63

(2016). But the government argues that the Residual Clause is irrelevant

because the Enumerated-Offense Clause applies.
                                         2
      Under the Enumerated-Offense Clause, the convictions for residential

burglary would constitute “violent felonies” under the ACCA if the

elements match the generic form of an enumerated offense like burglary.

See Taylor v. United States, 495 U.S. 575, 598 (1990). The government

invokes this clause, arguing that the three prior convictions for residential

burglary fit the generic form of burglary. Mr. Turrieta disagrees, urging a

mismatch between New Mexico’s offense of residential burglary and the

generic form. The mismatch occurs, according to Mr. Turrieta, because

             the generic form of burglary does not encompass entry into
              vehicles, watercraft, or aircraft even when they are occupied
              and

             New Mexico’s offense of residential burglary encompasses
              vehicles, watercraft, and aircraft when they are occupied.

      We may assume, for the sake of argument, that Mr. Turrieta is

correct regarding what the generic form of burglary is. But Mr. Turrieta is

wrong about the scope of New Mexico’s offense of residential burglary.

II.   Standard of Review

      In analyzing Mr. Turrieta’s appellate arguments, we engage in de

novo review of the district court’s legal conclusions and clear-error review

of the factual findings. United States v. Barrett, 797 F.3d 1207, 1213 (10th

Cir. 2015).




                                       3
III.   The Scope of New Mexico’s Offense of Residential Burglary

       To determine whether a state crime constitutes generic burglary, we

apply the “categorical approach,” focusing on “the statutory definitions of

the prior offenses” rather than “the particular facts underlying those

convictions.” Taylor v. United States, 495 U.S. 575, 600 (1990); see also

Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243, 2248 (2016) (stating

that in determining “whether a prior conviction is for generic burglary,”

courts “focus solely on whether the elements of the crime of conviction

sufficiently match the elements of generic burglary”).

       New Mexico creates two distinct burglary offenses based on the

structure burgled:

       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.

       For the prior convictions to trigger the Enumerated-Offense Clause,

we must consider whether New Mexico’s definition of residential burglary

matches “the generic sense in which the term [burglary] is now used in the

criminal codes of most States.” Taylor v. United States, 495 U.S. 575, 598

(1990). If the state statute defines residential burglary more broadly than

                                      4
the generic form of burglary, the convictions would not involve violent

felonies under the Enumerated-Offense Clause. Id.

      The generic form of burglary “contains at least the following

elements: [1] an unlawful or unprivileged entry into, or remaining in, [2] a

building or other structure, [3] with the intent to commit a crime.” Id. Mr.

Turrieta argues that these elements do not cover entry into an occupied

vehicle, watercraft, or aircraft. We may assume, for the sake of argument,

that Mr. Turrieta is right. With this assumption, we must determine

whether the same is true for Mr. Turrieta’s past offenses.

      That determination requires us to focus on New Mexico law. In New

Mexico, there are two types of burglaries, which are separated in Parts (A)

and (B). Part (A) involves “residential burglary,” which consists of

unlawful entry into a “dwelling house.” N.M. Stat. Ann. § 30-16-3(A).

Part (B) involves various “structures” such as a vehicle, watercraft, and

aircraft. Id. § 30-16-3(B); see State v. Ervin, 630 P.2d 765, 766 (N.M. Ct.

App. 1981) (“Our burglary statute . . . differentiates between residential

burglary and burglary of other structures.”). Mr. Turrieta was convicted

under Part (A), which involves unlawful entry into a dwelling house rather

than another structure like a vehicle, watercraft, or aircraft.

      Nonetheless, Mr. Turrieta argues that a “dwelling house” can consist

of a vehicle, watercraft, or aircraft when it is occupied. This argument

blurs the difference between the two forms of burglary. We do not
                                       5
ordinarily think of a “house” (as in the term “dwelling house”) as referring

to a vehicle, watercraft, or aircraft. Those things move, and “houses” do

not. See Webster’s New Universal Unabridged Dictionary 880 (2d ed.

1979) (giving the primary definition of a “house” as “a building for human

beings to live in”); see also Scribner v. O’Brien, Inc., 363 A.2d 160, 166

(Conn. 1975) (stating that the “popular and commonly used meaning” of

“dwelling” “is ‘a building or construction used for residence’” (quoting

Webster’s New Int’l Dictionary 706)); cf. United States v. Quarles, 850

F.3d 836, 839 (6th Cir. 2017) (stating that “it would be a stretch” to regard

a vehicle or boat as a “home” for purposes of a state burglary statute).

And, at common law, the term “dwelling house” referred to a building. See

John Poulos, The Metamorphosis of the Law of Arson, 51 Mo. L. Rev. 295,

300 (1986) (“As with the law of burglary, the common law defined a

dwelling house as a building occupied as a place of human habitation.”);

Jerome C. Latimer, Burglary Is for Buildings, or Is It? Protected

Structures and Conveyances Under Florida’s Present Burglary Statute, 9

Stetson L. Rev. 347, 348 (1980) (“At common law, the offense of burglary

was limited to a dwelling house defined as being any building wherein a

man and his family reside.”). Thus, Mr. Turrieta’s definition of a “dwelling

house” conflicts not only with the ordinary understanding of the term

“house” but also with the common law’s definition of the term “dwelling

house.”
                                      6
      But Mr. Turrieta stiches together a crafty combination of case law

and a uniform jury instruction, arguing that a dwelling house can consist of

a movable object (like a vehicle, watercraft, or aircraft) when it is

occupied. He starts with New Mexico’s uniform criminal jury instructions,

which define “dwelling house” as “any structure, any part of which is

customarily used as living quarters.” N.M. R. Ann., Crim. Unif. Jury

Instruction 14-1631. Mr. Turrieta next contends that the term “structure”

includes a vehicle, watercraft, aircraft, or dwelling. For this contention,

Mr. Turrieta relies on State v. Foulenfont, 895 P.2d 1329 (N.M. Ct. App.

1995).

      The result of combining the uniform jury instructions and

Foulenfont, according to Mr. Turrieta, is that a dwelling house includes a

vehicle or watercraft when it is occupied. The reasoning takes the form of

a syllogism:

            Major premise:    A structure used as living quarters
                              is a dwelling house. (Uniform Jury
                              Instructions)

            Minor premise:    Vehicles and watercraft are
                              structures. (Foulenfont)


            Conclusion:       Vehicles and watercraft can be
                              dwelling houses.

      The syllogism breaks down with the minor premise because Mr.

Turrieta has misread Foulenfont. There a defendant was charged with

                                      7
burglary for breaking into a fenced area. Foulenfont, 895 P.2d at 1330. As

noted above, New Mexico’s burglary statute covers dwelling houses,

vehicles, watercraft, and other structures. See pp. 4-5, above. The issue in

Foulenfont was whether a fenced area could fall into any of these

categories. The court said “no,” reasoning that a fenced area does not

completely enclose the property like a dwelling house, vehicle, or

watercraft. Foulenfont, 895 P.2d at 1332.

      In answering “no,” the court was narrowing the places that could

support a burglary conviction of any kind. Id.; see State v. Office of Pub.

Def. ex rel. Muqqddin, 285 P.3d 622, 624, 629 (N.M. 2012) (stating that

Foulenfont attempted to limit the scope of the burglary statute by requiring

an enclosure). 1 Mr. Turrieta, however, would use Foulenfont to urge an

expansive interpretation of the structures that can support a conviction

under Part (A). It would make little sense to use a decision stating only

what was not burglary of any kind to define what would constitute a

specific form of burglary (residential burglary). See Drabkin v. Dist. of




1
      Mr. Turrieta contends that Muqqddin supports his interpretation by
referring to vehicles, watercraft, and aircraft as “‘enumerated structures.’”
Appellant’s Reply Br. at 5 (quoting Muqqddin, 285 P.3d at 633). These
forms of property are enumerated in Part (B) but not Part (A). See pp. 4-5,
above. And Mr. Turrieta was convicted under Part (A), which addresses
residential burglary. Thus, Muqqddin does not support Mr. Turrieta’s
interpretation of the New Mexico burglary statute.

                                      8
Columbia, 824 F.2d 1102-19 (D.C. Cir. 1987) (Ginsburg, J., dissenting)

(“[A] truthful proposition does not imply the truth of its converse.”).

      Logicians refer to this deductive misstep as “The Fallacy of Negative

Premises.” See Ruggio J. Aldisert, Logic for Lawyers: A Guide to Clear

Legal Thinking 156-57 (3d ed. 1997). The fallacy consists of drawing an

affirmative conclusion from a negative premise; if either premise is

negative, the conclusion must be negative. See id. at 156 (“If one premise

[of a syllogism] is negative, the conclusion must be negative.”); Irving M.

Copi & Carl Cohen, Introduction to Logic 247 (13th ed. 2009) (“If either

premise is negative, the conclusion must be negative.”); Timothy R.

Zinnecker, Syllogisms, Enthymemes and Fallacies: Mastering Secured

Transactions Through Deductive Reasoning, 56 Wayne L. Rev. 1581, 1641

(2010) (“A categorical syllogism . . . is invalid if the conclusion is positive

and one of the premises is negative.”). The only pertinent holding in

Foulenfont was that an unenclosed space like a fenced area does not

constitute a structure. See pp. 7-8, above. Because the minor premise is

based on Foulenfont’s negative holding, the conclusion itself must be

negative.

      The fallacy becomes evident when we insert Foulenfont’s actual

holding into Mr. Turrieta’s syllogism:




                                      9
            Major premise:    A structure used as living quarters
                              is a dwelling house. (Uniform Jury
                              Instructions)

            Minor premise:    Spaces that are not enclosed, like
                              fenced areas, are not structures.
                              (Foulenfont)


            Conclusion:       Enclosed vehicles and watercraft
                              can be dwelling houses.

This conclusion is illogical. The only premise to be drawn from Foulenfont

is negative (unenclosed spaces like fenced areas are not structures);

therefore, the conclusion must also be negative. In other words, the fact

that an unenclosed space is not a structure does not mean that all enclosed

spaces (including vehicles, watercraft, and aircraft) are structures.

      Mr. Turrieta’s interpretation of Foulenfont not only flouts principles

of logic but also clashes with State v. Ruiz, 617 P.2d 160 (N.M. Ct. App.

1980). 2 There the New Mexico Court of Appeals decided that criminal

trespass is a lesser included offense of Part (A) of New Mexico’s burglary

statute. 617 P.2d at 168-69. The court explained that “[t]he offense

charged was burglary of a dwelling house; thus, we are not concerned with

2
       Ruiz was decided by the New Mexico Court of Appeals rather than
the New Mexico Supreme Court. Nonetheless, the opinion serves as “‘a
datum for ascertaining state law which is not to be disregarded by a federal
court unless it is convinced by other persuasive data that the highest court
of the state would decide otherwise.’” Stickley v. State Farm Mut. Auto.
Ins., 505 F.3d 1070, 1077 (10th Cir. 2007) (quoting West v. AT&T, 311
U.S. 223, 237 (1940)). With this datum, we have little reason to expect the
New Mexico Supreme Court to decide the issue differently than the New
Mexico Court of Appeals did in Ruiz.
                                      10
vehicles, watercraft or aircraft or other structures.” Id. at 167. The court

added that “[w]hen one enters another’s dwelling house, under our burglary

statute, one has entered lands of another. This reasoning, of course, would

not apply if the burglary was of a vehicle, watercraft or aircraft.” Id.

at 168. In this manner, Ruiz distinguishes burglary of a dwelling house

under Part (A) from the burglary of another structure like a vehicle,

watercraft, or aircraft.

      Mr. Turrieta argues that no one in Ruiz addressed whether a vehicle,

watercraft, or aircraft could constitute a dwelling house, rendering this

discussion as dicta. We disagree. Regardless of whether a party raised the

issue, the court decided it. See Bryan A. Garner et al., The Law of Judicial

Precedent 51 (2016) (“[T]he distinction between a holding and a dictum

doesn’t depend on whether the point was argued by counsel . . . .”). And

even if the discussion constituted dicta rather than a holding, the court’s

resolution of the issue provides insight into how the New Mexico Supreme

Court would ultimately decide the issue. See City of Aurora v. Bechtel

Corp., 599 F.2d 382, 386 (10th Cir. 1979) (stating that dicta in state court

decisions are persuasive sources to interpret state law).

      Even if the combination of Foulenfont and a uniform jury instruction

were otherwise persuasive, Mr. Turrieta would need to show “a realistic

probability, not a theoretical possibility, that the State would apply” its

statute on residential burglary when the property involves a vehicle,
                                      11
watercraft, or aircraft. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193

(2007). To satisfy this hurdle, Mr. Turrieta “must at least point to his own

case or other cases in which the state courts in fact did apply the statute in

the special (nongeneric) manner for which he argues.” Id.

      Mr. Turrieta does not meet this burden, for he does not suggest that

New Mexico authorities have ever charged someone for residential

burglary based on entry into an occupied vehicle, watercraft, or aircraft.

Instead, he points to two areas of New Mexico case law that allegedly

define “dwelling house” to include vehicles: (1) aggravated burglary and

(2) shooting at a dwelling.

      According to Mr. Turrieta, New Mexico case law shows that

aggravated burglary of a dwelling house includes burglary of a mobile

home or trailer. N.M. Stat. Ann. § 30-16-4; see State v. Alvarez-Lopez, 98

P.3d 699, 702 (N.M. 2004) (addressing a conviction for the aggravated

residential burglary of a mobile home); State v. Romero, 958 P.2d 119, 124

(N.M. Ct. App. 1998) (stating that criminal trespass was necessarily

included within “the offense of aggravated burglary of a dwelling house”

when the dwelling house was a trailer). But the cited cases do not support

Mr. Turrieta’s argument because aggravated burglary does not distinguish

between the types of structures burgled. See N.M. Stat. Ann. § 30-16-4

(“Aggrevated burglary consists of the unauthorized entry of any vehicle,

watercraft, aircraft, dwelling or other structure . . . .”). A defendant can be
                                      12
convicted of aggravated burglary based on aggravating circumstances; the

type of structure does not matter.

      Mr. Turrieta agrees but insists that in two cases, New Mexico’s

appellate courts “treated the aggravated burglary offenses as though they

involved only dwellings.” Appellant’s Reply Br. at 8. In one of the cited

opinions, the court stated in its factual summary that the crime had

consisted of “aggravated residential burglary” and that the property had

been a mobile home. Alvarez-Lopez, 98 P.3d at 702. In the other cited case,

the court referred to a trailer as a dwelling house. Romero, 958 P.2d

at 124. In both cases, the courts

           had no need to decide whether a mobile home or trailer would
            constitute a residence or dwelling house and

           never discussed these characterizations.

See Alvarez-Lopez, 98 P.3d 699 (N.M. 2004); Romero, 958 P.2d at 124. As

a result, little can be drawn from the courts’ isolated, inconsequential

references to a mobile home or trailer as a “residence” or “dwelling

house.”

      In addition, Mr. Turrieta focuses on cases involving shooting at a

dwelling. N.M. Stat. Ann. § 30-3-8(A). The uniform jury instruction

defines a “dwelling” the same way as a “dwelling house” in Part (A) of the

burglary statute. See N.M. R. Ann., Crim. Unif. Jury Instruction 14-340 n.1

(stating that the definition of “dwelling” in the burglary jury instruction

                                      13
should be given for a charge of shooting at a dwelling). And, as Mr.

Turrieta points out, defendants have been convicted of shooting at a

dwelling when the dwelling consists of a trailer or mobile home. See, e.g.,

State v. Varela, 993 P.2d 1280, 1284 (N.M. 1999); State v. Coleman, 264

P.3d 523, 528-29 (N.M. Ct. App. 2011); State v. Highfield, 830 P.2d 158,

159 (N.M. Ct. App. 1992).

      But none of the cited cases addressed whether a trailer or mobile

home qualified as a dwelling. See, e.g., Varela, 993 P.2d 1280; Coleman,

264 P.3d at 528 (“Defendant raises no issues as to whether Villa’s trailer

constituted a dwelling.”); Highfield, 830 P.2d at 160. When parties do not

raise or consider an issue and the court does not address it, “the case is not

a binding precedent on [that] point.” United States v. L.A. Tucker Truck

Lines, 344 U.S. 33, 38 (1952). Therefore, the cases on shooting at a

dwelling do not support classification of trailers or mobile homes as

“dwellings” or “dwelling houses.”

      Mr. Turrieta acknowledges that none of the New Mexico cases

addressed whether a trailer or mobile home qualifies as a dwelling. But he

asserts that “prosecutors, trial judges, juries and presumably defense

counsel considered mobile homes and trailers as matching the § 30-16-3(A)

‘dwelling house’ definition.” Appellant’s Reply Br. at 7. We have no

evidence for the assertion. Mr. Turrieta merely assumes that the



                                     14
prosecutors, trial judges, juries, and defense counsel had considered the

potential issue involving the existence of a dwelling.

                                    * * *

      Mr. Turrieta has not identified a single New Mexico case holding

that a “dwelling” or “dwelling house” includes an occupied vehicle,

watercraft, or aircraft. Therefore, New Mexico’s crime of residential

burglary does not cover entry into an occupied vehicle, watercraft, or

aircraft.

IV.   Conclusion

      Mr. Turrieta’s convictions for residential burglary match the generic

form of burglary. Therefore, these convictions fit the Enumerated-Offense

Clause. In light of the applicability of this clause, the ACCA applied

independently of the Residual Clause. As a result, the district court did not

err in denying Mr. Turrieta’s motion to vacate his 15-year sentence.

      Affirmed.




                                     15
