                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                     December 21, 2017

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                         No. 17-2018
                                             (D.C. Nos. 2:16-CV-00719-JAP-KBM &
CHRISTOPHER JOHN HOPSON,                             1:03-CR-00677-JAP-1)
                                                            (D. N.M.)
             Defendant - Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, PHILLIPS, and McHUGH, Circuit Judges.


      Christopher John Hopson seeks a certificate of appealability (COA) to

challenge the dismissal of his authorized second or successive 28 U.S.C. § 2255

motion. Hopson argues that the new rule stated by Johnson v. United States,

135 S. Ct. 2551 (2015)—invalidating the residual clause of the Armed Career

Criminal Act’s (ACCA) definition of a “violent felony”—also invalidated the career

offender guideline applied at his sentencing under the mandatory Sentencing

Guidelines. The district court ruled that Hopson’s sentence was enhanced based on a




       * This order is not binding precedent except under the doctrines of law of the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.
valid enumerated offense—not the residual clause—and dismissed Hopson’s § 2255

motion. The district court denied COA, as do we.

                                    I. Background

      Hopson was convicted in 2003 of armed bank robbery and brandishing a

firearm during and in relation to a crime of violence. The presentence report (PSR)

used the 2000 Sentencing Guidelines Manual and recommended Hopson’s sentence

be enhanced based on his status as a career offender. See U.S. Sentencing Guidelines

Manual § 4B1.1 (U.S. Sentencing Comm’n 2000). Section 4B1.1 applied to adult

defendants convicted of a crime of violence or a controlled substance offense who

had “at least two prior felony convictions of . . . a crime of violence . . . .” A “crime

of violence” was defined as a federal or state felony that (1) “has as an element the

use, attempted use, or threatened use of physical force against the person of another”

(the elements clause); (2) is one of the four offenses enumerated in the guideline,

including “burglary of a dwelling” (the enumerated-offenses clause); or

(3) “otherwise involves conduct that presents a serious potential risk of physical

injury to another” (the residual clause). USSG § 4B1.2(a)(1)-(2).

      Hopson had prior New Mexico state convictions for armed robbery and

residential burglary, which the PSR concluded both qualified as crimes of violence

under USSG § 4B1.2(a). Hopson did not object to this or any recommendation in the

PSR. Supp. R., Vol. II at 1. He was sentenced to 346 months’ imprisonment.




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      Hopson challenged the sufficiency of the evidence supporting his conviction

on direct appeal, but did not challenge any aspect of his sentence. United States v.

Hopson, 105 F. App’x 968, 972 (10th Cir. 2004) (affirming conviction). In 2014,

Hopson filed a § 2255 motion claiming his conviction for brandishing a firearm was

unconstitutional, but did not challenge his career-offender sentence enhancement.

That § 2255 motion was dismissed as untimely. United States v. Hopson,

589 F. App’x 417, 418-19 (10th Cir. 2015) (affirming dismissal).

      In 2015, the Supreme Court decided Johnson, holding that the ACCA’s

residual-clause definition of crime of violence was unconstitutionally vague.

135 S. Ct. at 2563. We then held that § 4B1.2(a)(2) was also unconstitutionally

vague under Johnson. United States v. Madrid, 805 F.3d 1204, 1211 (10th Cir.

2015), overruled as to advisory Guidelines by Beckles v. United States, 137 S. Ct.

886, 890 (2017). The Supreme Court made Johnson’s holding retroactive to cases on

collateral review in Welch v. United States, 136 S. Ct. 1257, 1268 (2016).

      Within a year of the Johnson decision, Hopson sought authorization to file a

second § 2255 motion, which we granted. In re Hopson, No. 16-2175 (10th Cir.

Aug. 23, 2016) (unpublished order). In the authorized motion, he argued his New

Mexico burglary conviction could only have been a crime of violence under the

residual clause of § 4B1.2(a) and thus, his sentence was unconstitutional under

Johnson because § 4B1.2(a)’s residual clause is worded the same as the ACCA

residual clause. He challenged only the use of his residential burglary conviction to


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enhance his sentence; he did not argue his New Mexico armed robbery conviction

failed to qualify as a “crime of violence.”1 The district court rejected Hopson’s

assertion he was sentenced under § 4B1.2(a)’s residual clause, ruling he was properly

classified as a career offender under the enumerated-offenses clause for “burglary of

a dwelling.” Relief under Johnson is available only if the unconstitutionally vague

residual clause definition was used to categorize a prior conviction as a crime of

violence; convictions under the enumerated clause are not affected by Johnson.

See United States v. Pam, 867 F.3d 1191, 1203 (10th Cir. 2017). The district court

dismissed Hopson’s § 2255 motion and denied COA.

      After that dismissal, the Supreme Court decided Beckles, holding Johnson

does not apply to advisory Sentencing Guideline enhancements. 137 S. Ct. at 890.

In his application for COA, Hopson argues Beckles does not preclude his claim

because he was sentenced in 2003, when the Sentencing Guidelines were considered

mandatory. See United States v. Booker, 543 U.S. 220, 245 (2005) (holding the

Guidelines are advisory only). Whether Johnson applies to pre-Booker guideline

sentences is an open question, Beckles, 137 S. Ct. at 903 n.4 (Sotomayor, J.,

concurring); see also United States v. Miller, 868 F.3d 1182, 1186-87 (10th Cir.


      1
        Hopson argues for the first time in his COA application that his prior New
Mexico armed robbery conviction is not a crime of violence. As he did not raise this
argument in his § 2255 motion, we will not consider it. See United States v. Moya,
676 F.3d 1211, 1213 (10th Cir. 2012) (declining to “deviate from the general rule
that we do not address arguments presented for the first time on appeal” (internal
quotation marks omitted)).


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2017) (“Whether the mandatory Guidelines are amenable to vagueness challenges is

an issue of first impression in our circuit, and one that is sure to recur in light of

Johnson and Beckles.”).

                                      II. Discussion

       A prisoner challenging a denial of a § 2255 motion must obtain a COA as a

jurisdictional prerequisite to proceed with an appeal. 28 U.S.C. § 2253(c)(1)(B). We

will issue a COA “only if the applicant has made a substantial showing of the denial

of a constitutional right.” Id. § 2253(c)(2). “The petitioner must demonstrate that

reasonable jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “In

reviewing the denial of a § 2255 motion, we review the district court’s legal rulings

de novo and its findings of fact for clear error.” United States v. Cockerham,

237 F.3d 1179, 1181 (10th Cir. 2001).

       The district court ruled that Hopson’s sentence enhancement was not

unconstitutionally vague because his residential burglary conviction fit the generic

definition of a “burglary of a dwelling” under the valid enumerated-offenses clause

of § 4B1.2(a)(2). An offense constitutes “burglary” under the enumerated clause if it

has the basic elements of a “generic” burglary, that is, any “unlawful or unprivileged

entry into, or remaining in, a building or structure, with intent to commit a crime.”

Taylor v. United States, 495 U.S. 575, 599 (1990). To determine whether an offense

constitutes generic burglary, Taylor held that a court should generally use a


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categorical approach, “look[ing] only to the fact of conviction and the statutory

definition of the prior offense.” Id. at 602. If the underlying statute of conviction

“sweeps more broadly than the generic crime,” the prior conviction cannot qualify as

a predicate offense. Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). But if

a statute is “divisible,” that is, if it defines multiple crimes by listing alternative

elements, courts may use a “modified categorical approach” to determine which of

the multiple alternative elements listed in the statute applied to convict the defendant.

Pam, 867 F.3d at 1203-04. Under the modified categorical approach, a sentencing

court looks to the record of conviction to determine what crime, with what elements,

a defendant was convicted of, and then compares the elements of that crime, as the

categorical approach commands, with the elements of the relevant generic offense.

Id. at 1204.

       Hopson was convicted of residential burglary in violation of N.M. Stat. Ann.

§ 30-16-3, which provides:

       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.
Id.


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      The district court employed the modified categorical approach, concluding

§ 30-16-3 was too broad as a whole to use the categorical approach, but that it was

divisible into subsections A and B, which separate the alternative elements of two

separate crimes: Subsection A, residential burglary, and Subsection B, burglary of a

“vehicle, watercraft, aircraft or other structure, movable or immovable.” Id. Further,

the subsections carry different penalties—Subsection A, burglary of a “dwelling

house,” is a third degree felony, and Subsection B is a fourth degree felony.

See Mathis v. United States, 136 S. Ct. 2243, 2256 (2016) (holding that statutory

alternatives carrying different penalties “must be elements”).

      As the district court found, Hopson was indicted for “enter[ing] [a] dwelling

house, R., Vol. I at 16, and he pleaded guilty to “residential burglary, a third degree

felony,” id. at 20 (capitalization omitted). At sentencing, he admitted that the PSR

descriptions of his prior convictions were accurate, including that, as to his

residential burglary conviction, he had “entered the residence of Thomas and Barbara

Bruce located at 2315 Calle De Rafael N.E.” without authorization, with intent to

commit . . . theft and armed himself with a deadly weapon.” Supp. R., Vol. I at 11

and Vol. III at 4. Thus, his residential burglary conviction fits the generic definition

of “burglary of a dwelling” under the enumerated-offenses clause of § 4B1.2(a).

      Hopson argues in his COA application that he has established a Johnson error

because it is not clear from the record which § 4B1.2 clause the sentencing court

relied upon. We recently held, however, that even when the sentencing record is


                                          -7-
unclear, we may conduct a record and legal review to determine that the sentencing

court did not rely upon the residual clause. United States v. Snyder, 871 F.3d 1122,

1128-29 (10th Cir. 2017) (reviewing the historical record and legal environment at

sentencing to affirm district court’s determination that the defendant was sentenced

under the enumerated-offenses clause, not the residual clause). Here, as in Snyder,

under the legal environment at the time Hopson was sentenced, it was clear under

Taylor that his residential burglary conviction fit within the enumerated-offenses

clause. See id. at 1129. And, as noted above, the record supports the district court’s

finding that Hopson was sentenced under the enumerated-offenses clause.

      Hopson also argues that New Mexico’s residential burglary statute is broader

than the generic definition of a burglary because it can include burglaries of movable

structures, such as vehicles or boats, and it can include burglaries of curtilage

buildings, neither of which are included in the generic definition of a burglary.

Hopson could have raised these arguments under Taylor at sentencing or direct

appeal, but did not, thereby waiving them. Taylor articulated the generic definition

of burglary and established the categorical and modified approach, and was decided

in 1990, well before Hopson was sentenced.




                                          -8-
      In light of the sentencing record and the relevant legal background, no

reasonable jurist would disagree with the district court that Hopson’s sentence was

enhanced based on § 4B1.2(a)(2)’s enumerated-offenses clause, not the residual

clause. We deny Hopson’s request for COA and dismiss this matter.


                                               Entered for the Court


                                               Paul J. Kelly, Jr.
                                               Circuit Judge




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