#### UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Paul TOLENTINO, Defendant-Appellant.

No. 17-2099

United States Court of Appeals, Tenth Circuit.

Filed December 19, 2017

(D.C. Nos. 2:16-CV-00583-MV-KRS & 2:06-CR-00842-MV-1) (D. New Mexico)

Terri J. Abernathy, Office of the United States Attorney, District of New Mexico, Las Cruces, NM, for Plaintiff-Appellee

Jane Greek, Office of the Federal Public Defender, District of New Mexico, Las Cruces, NM, for Defendant-Appellant

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.

ORDER DENYING A CERTIFICATE OF APPEALABILITY

Robert E. Bacharach, Circuit Judge

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-*55963, 192 L.Ed.2d 569 (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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Thus, Mr. Tolentino moved for resentenc-ing 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 that the issues presented were adequate to deserve encouragement to proceed further.” *Slack v. McDaniel,*529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (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.3875 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.

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 felo. ny.”

2

. This holding is retroactively applicable to cases on collateral review. *Welch v. United States,*— U.S. -, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

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)(S)(ii).