UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. ALBERT MARTINEZ, Defendant - Appellant. No. 19-2046 (D.C. No. 1:18-CR-00101-WJ-1) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , KELLY , and CARSON , Circuit Judges.

________________ _________________ Albert Martinez appeals th e sentence imposed followi ng his guilty plea to one count of being a felon in possession of a firearm. Martinez had three prior convictions that the district court counted as violent felonies for purposes of the Armed Career Criminal Act (ACCA): one for residential burglary, and two for robbery. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district court. Responding to a complaint about a car blocking a driveway, the police discovered Martinez had an out standing warrant for failure to report to his probation

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 22, 2020 Christopher M. Wolpert Clerk of Court2 officer. ROA Vol. II at 11–12, 33. After Mar tinez was arrested, po lice found a pistol in a Crown Royal bag in a pocket of his cargo shorts. Id. at 13–14, 33. Martinez pleaded guilty, without a plea agreement, to being a felon in possession of a firearm in viol ation of 18 U.S.C. § 922(g)(1). Id. at 24. He had three prior New Mexico convictions : one for residential burglar y, and two convictions for robbery. ROA Vol. I at 7–8, 19. Martin ez argued the crimes underlying these convictions did not qualify as violent felonies for purposes of the ACCA’s enhancements. Id. Vol. II at 8–10. The district c ourt disagreed, found the convictions qualified as predicate offens es, and sentenced Martinez to the mandatory minimum of 180 months. Id. Vol. I at 39, Vol. II at 17. A conviction under § 922(g) carries a statutory maximum sentence of ten years. 18 U.S.C. § 924(a)(2). If, however , the defendant “has three previous convictions . . . for a violen t felony or a serious drug o ffense, or both,” a statutory mandatory minimum sentence of fifteen years applies. 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” th at: (1) “has as an element the use, attempted use, or threatened use of physical fo rce against the person of anot her” (elements clause); (2) “is burglary, arson, or extortion, [or] i nvolves the use of explosives” (enumerated clause); or (3) “otherwise involves conduct that presents a seri ous potential risk of physical injury to anothe r” (residual clause). Id. § 924(e)(2)(B). Martinez challenges the application of the ACCA to all three of his prior co nvictions. However, we have previously held that convictions for residential burglary and robbery under New3 Mexico law are violent felonies. Martinez has presented nothing in his appellate briefing which would support ou r ruling to the contrary. Absent en banc consideration, one pa nel of this court cannot overturn the decision of another. See United States v. Doe , 865 F.3d 1295, 1298 (10th Cir. 2017). Martinez acknowledges this re ality. Aplt. Br. at 7 (citing United States v. White , 782 F.3d 1118, 1126–27 (10th Cir. 2015)). Martinez also ac knowledges that United States
v. Turrieta , 875 F.3d 1340 (10th Cir. 2017) clearl y held that “convictions [under New Mexico law] for residential burglary match the generic form of burglary. Therefore, these convictions fit the Enumerated-Offense Clause. In light of the applicability of this clause, the ACCA applied inde pendently of the Residual Clause.” Id. at 1347; see also Aplt. Br. at 7. While an interven ing Supreme Court decision or an intervening state court ruling could prov ide support for our questioning or overruling
Turrieta , Martinez provides neither. In stead, he argues only that Turrieta “misconstrued New Mexico law.” Aplt. Br . at 7. Even if this were true, Turrieta remains controlling: a conviction for re sidential burglary under New Mexico law constitutes a violent felony fo r purposes of the ACCA. Similarly, we have very recently 1 held that a convicti on for robbery under New Mexico law is a violent felony. See United States v. Manzanares , No. 18-2010, slip op. at 7 (April 17, 2020); see also United States v. Velasquez , No. 17-2150, slip op. at 9 (April 21, 20 20). We are bound by Manzanares , and we agree with its holding: a

1 As is clear from the date in the citation, Manzanares was decided only a few days before Martinez’s case.4 robbery conviction under New Mexico law qualifies as a violent felony. See also Wankier v. Crown Equip. Corp. , 353 F.3d 862, 866 (10th Cir. 2003) (“[W]hen a panel of this Court has rendered a decision interpreting st ate law, that interpretation is binding on . . . subsequent panels of this Court, unless an intervening decision of the state’s highest court has resolved the issue.”). As all of Martinez’s predicate crimes are violent felonies as defined by the ACCA, the judgment of the dist rict court is AFFIRMED.

Entered for the Court
Mary Beck Briscoe Circuit Judge