UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

v. 

MARCOS SANCHEZ, 

 Defendant - Appellant. 

No. 17-2064 

(D.C. Nos. 1:15-CV-01188-JB-SMV 

and 1:04-CR-01685-JB-1) 

(D. N.M.) 

________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before MATHESON, BACHARACH, and McHUGH, Circuit Judges. 

_________________________________ 

 The defendant, Mr. Marcos Sanchez, was convicted in 2006 of 

possessing a firearm after a prior felony conviction and sentenced to 

fifteen years’ imprisonment. See 18 U.S.C. § 922(g)(1). The sentence was 

enhanced under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), 

which created a fifteen-year mandatory minimum. In district court, Mr. 

 

* We have determined that oral argument would not materially aid our 

consideration of the appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 

34.1(G). Thus, we have decided the appeal based on the briefs. 

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But our order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).

FILED 

United States Court of Appeals 

Tenth Circuit 

March 1, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

Sanchez unsuccessfully challenged the sentence under 28 U.S.C. § 2255. 

We affirm. 

* * * 

 The Armed Career Criminal Act would have been triggered by three 

or more past convictions for violent felonies or serious drug crimes. 

Applying the Armed Career Criminal Act, the district court characterized 

the crimes underlying Mr. Sanchez’s past convictions as “violent felonies.” 

All of these convictions were for residential burglary under New Mexico 

law. 

 Under the Armed Career Criminal Act, a felony conviction could be 

considered a “violent felony” in one of three ways. 

 First, under the “elements clause,” a conviction would constitute a 

“violent felony” if an element consisted of the use, attempted use, or 

threatened use of physical force against another person. 18 U.S.C. 

§ 924(e)(2)(B)(i). 

 Second, under the “enumerated-offense clause,” a conviction would 

count as a “violent felony” if it was for burglary, arson, extortion, or 

another crime involving the use of explosives. 18 U.S.C. 

§ 924(e)(2)(B)(ii). 

 Third, under the “residual clause,” a conviction would constitute a 

“violent felony” if it otherwise involved conduct creating a serious 

potential risk of physical injury to another person. Id. 
3 

 Since the sentencing took place, the Supreme Court has held that the 

residual clause is unconstitutionally vague. Johnson v. United States, 135 

S. Ct. 2551, 2556-63 (2015). Mr. Sanchez relies on the constitutional 

infirmity of the residual clause, arguing that the sentence enhancement 

would no longer be permissible. 

 To decide this appeal, we must determine whether residential 

burglary under New Mexico law would constitute a “violent felony” under 

the Armed Career Criminal Act. We can no longer rely on the residual 

clause because it is unconstitutionally vague, and the government does not 

invoke the elements clause. As a result, the sentence could be enhanced 

only if the New Mexico crime of residential burglary would satisfy the 

enumerated-offense clause. 

 We recently addressed this issue in United States v. Turrieta, holding 

that a conviction for residential burglary in New Mexico satisfies the 

enumerated-offense clause. 875 F.3d 1340 (10th Cir. 2017). Mr. Sanchez 

acknowledges that Turrieta forecloses relief but argues that Turrieta was 

wrongly decided. Appellant’s Supp. Br., passim (Dec. 12, 2017). We 

recently denied a petition for rehearing in Turrieta and are obligated to 

follow that opinion. United States v. Tafoya, 557 F.3d 1121, 1129 (10th 
4 

Cir. 2009). As a result, we affirm the denial of Mr. Sanchez’s § 2255 

motion. 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge