                                                             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).

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