FILED
                                                 United States Court of Appeals
                  UNITED STATES COURT OF APPEALS         Tenth Circuit

                           FOR THE TENTH CIRCUIT                 December 19, 2017
                           _________________________________
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
UNITED STATES OF AMERICA,

     Plaintiff-Appellee,

v.                                                        No. 17-2099
                                             (D.C. Nos. 2:16-CV-00583-MV-KRS &
LAWRENCE PAUL TOLENTINO,                            2:06-CR-00842-MV-1)
                                                           (D. N.M.)
     Defendant-Appellant.
                       _________________________________

       ORDER DENYING A CERTIFICATE OF APPEALABILITY
                  _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

       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. ___, 

, 2556-63 (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, 

, 599 (1990). Thus, Mr. Tolentino moved for

resentencing 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

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 felony.”
2
     This holding is retroactively applicable to cases on collateral review.
Welch v. United States, ___ U.S. ___, 

, 1268 (2016).

                                        2
that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 

, 484 (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. 3 

, 1347 (10th Cir. 2017). Thus,

we concluded that “the ACCA applied independently of the Residual

Clause.” 

makes the same argument that we rejected in

Turrieta. We therefore deny a certificate of appealability and dismiss this

appeal.


                                      Entered for the Court



                                      Robert E. Bacharach
                                      Circuit Judge




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)(B)(ii).

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