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United States v. Turrieta

United States Court of Appeals, Tenth Circuit

November 28, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
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.

         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 ...


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