from the United States District Court for the District of New
Mexico (D.C. Nos. 1:16-CV-00395-JAP-KK and
Michael A. Keefe, Assistant Federal Public Defender, Office
of the Federal Public Defender, Albuquerque, New Mexico, for
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.
KELLY, HOLMES, and BACHARACH, Circuit Judges.
BACHARACH, CIRCUIT JUDGE.
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.
Classification of an Offense as a Violent Felony
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. §
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).
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.
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,
. 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.
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.
Standard of Review
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.