United States v. Turrieta ( 2017 )

FILED
United States Court of
PUBLISH Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
November 28, 2017
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
_________________________________ Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-2281
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.
2
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 States v. Barrett, 797 F.3d 1207, 1213 (10th
Cir. 2015).
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III. The Scope of New Mexico’s Offense of Residential Burglary
To determine whether a state crime constitutes generic burglary, we
apply the “categorical approach,” focusing on “the statutory definitions of
the prior offenses” rather than “the particular facts underlying those
convictions.” Taylor v. United States, 495 U.S. 575, 600 (1990); see also
Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243, 2248 (2016) (stating
that in determining “whether a prior conviction is for generic burglary,”
courts “focus solely on whether the elements of the crime of conviction
sufficiently match the elements of generic burglary”).
New Mexico creates two distinct burglary offenses based on the
structure burgled:
A. 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.
B. Any person who, without authorization, enters any
vehicle, watercraft, aircraft or other structure, movable or
immovable, with intent to commit any felony or theft
therein is guilty of a fourth degree felony.
N.M. Stat. Ann. § 30-16-3.
For the prior convictions to trigger the Enumerated-Offense Clause,
we must consider whether New Mexico’s definition of residential burglary
matches “the generic sense in which the term [burglary] is now used in the
criminal codes of most States.” Taylor v. United States, 495 U.S. 575, 598
(1990). If the state statute defines residential burglary more broadly than
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the generic form of burglary, the convictions would not involve violent
felonies under the Enumerated-Offense Clause. Id.
The generic form of burglary “contains at least the following
elements: [1] an unlawful or unprivileged entry into, or remaining in, [2] a
building or other structure, [3] with the intent to commit a crime.” Id. Mr.
Turrieta argues that these elements do not cover entry into an occupied
vehicle, watercraft, or aircraft. We may assume, for the sake of argument,
that Mr. Turrieta is right. With this assumption, we must determine
whether the same is true for Mr. Turrieta’s past offenses.
That determination requires us to focus on New Mexico law. In New
Mexico, there are two types of burglaries, which are separated in Parts (A)
and (B). Part (A) involves “residential burglary,” which consists of
unlawful entry into a “dwelling house.” N.M. Stat. Ann. § 30-16-3(A).
Part (B) involves various “structures” such as a vehicle, watercraft, and
aircraft. Id. § 30-16-3(B); see State v. Ervin, 630 P.2d 765, 766 (N.M. Ct.
App. 1981) (“Our burglary statute . . . differentiates between residential
burglary and burglary of other structures.”). Mr. Turrieta was convicted
under Part (A), which involves unlawful entry into a dwelling house rather
than another structure like a vehicle, watercraft, or aircraft.
Nonetheless, Mr. Turrieta argues that a “dwelling house” can consist
of a vehicle, watercraft, or aircraft when it is occupied. This argument
blurs the difference between the two forms of burglary. We do not
5
ordinarily think of a “house” (as in the term “dwelling house”) as referring
to a vehicle, watercraft, or aircraft. Those things move, and “houses” do
not. See Webster’s New Universal Unabridged Dictionary 880 (2d ed.
1979) (giving the primary definition of a “house” as “a building for human
beings to live in”); see also Scribner v. O’Brien, Inc., 363 A.2d 160, 166
(Conn. 1975) (stating that the “popular and commonly used meaning” of
“dwelling” “is ‘a building or construction used for residence’” (quoting
Webster’s New Int’l Dictionary 706)); cf. United States v. Quarles, 850
F.3d 836, 839 (6th Cir. 2017) (stating that “it would be a stretch” to regard
a vehicle or boat as a “home” for purposes of a state burglary statute).
And, at common law, the term “dwelling house” referred to a building. See
John Poulos, The Metamorphosis of the Law of Arson, 51 Mo. L. Rev. 295,
300 (1986) (“As with the law of burglary, the common law defined a
dwelling house as a building occupied as a place of human habitation.”);
Jerome C. Latimer, Burglary Is for Buildings, or Is It? Protected
Structures and Conveyances Under Florida’s Present Burglary Statute, 9
Stetson L. Rev. 347, 348 (1980) (“At common law, the offense of burglary
was limited to a dwelling house defined as being any building wherein a
man and his family reside.”). Thus, Mr. Turrieta’s definition of a “dwelling
house” conflicts not only with the ordinary understanding of the term
“house” but also with the common law’s definition of the term “dwelling
house.”
6
But Mr. Turrieta stiches together a crafty combination of case law
and a uniform jury instruction, arguing that a dwelling house can consist of
a movable object (like a vehicle, watercraft, or aircraft) when it is
occupied. He starts with New Mexico’s uniform criminal jury instructions,
which define “dwelling house” as “any structure, any part of which is
customarily used as living quarters.” N.M. R. Ann., Crim. Unif. Jury
Instruction 14-1631. Mr. Turrieta next contends that the term “structure”
includes a vehicle, watercraft, aircraft, or dwelling. For this contention,
Mr. Turrieta relies on State v. Foulenfont, 895 P.2d 1329 (N.M. Ct. App.
1995).
The result of combining the uniform jury instructions and
Foulenfont, according to Mr. Turrieta, is that a dwelling house includes a
vehicle or watercraft when it is occupied. The reasoning takes the form of
a syllogism:
Major premise: A structure used as living quarters
is a dwelling house. (Uniform Jury
Instructions)
Minor premise: Vehicles and watercraft are
structures. (Foulenfont)
Conclusion: Vehicles and watercraft can be
dwelling houses.
The syllogism breaks down with the minor premise because Mr.
Turrieta has misread Foulenfont. There a defendant was charged with
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burglary for breaking into a fenced area. Foulenfont, 895 P.2d at 1330. As
noted above, New Mexico’s burglary statute covers dwelling houses,
vehicles, watercraft, and other structures. See pp. 4-5, above. The issue in
Foulenfont was whether a fenced area could fall into any of these
categories. The court said “no,” reasoning that a fenced area does not
completely enclose the property like a dwelling house, vehicle, or
watercraft. Foulenfont, 895 P.2d at 1332.
In answering “no,” the court was narrowing the places that could
support a burglary conviction of any kind. Id.; see State v. Office of Pub.
Def. ex rel. Muqqddin, 285 P.3d 622, 624, 629 (N.M. 2012) (stating that
Foulenfont attempted to limit the scope of the burglary statute by requiring
an enclosure). 1 Mr. Turrieta, however, would use Foulenfont to urge an
expansive interpretation of the structures that can support a conviction
under Part (A). It would make little sense to use a decision stating only
what was not burglary of any kind to define what would constitute a
specific form of burglary (residential burglary). See Drabkin v. Dist. of
1
Mr. Turrieta contends that Muqqddin supports his interpretation by
referring to vehicles, watercraft, and aircraft as “‘enumerated structures.’”
Appellant’s Reply Br. at 5 (quoting Muqqddin, 285 P.3d at 633). These
forms of property are enumerated in Part (B) but not Part (A). See pp. 4-5,
above. And Mr. Turrieta was convicted under Part (A), which addresses
residential burglary. Thus, Muqqddin does not support Mr. Turrieta’s
interpretation of the New Mexico burglary statute.
8
Columbia, 824 F.2d 1102-19 (D.C. Cir. 1987) (Ginsburg, J., dissenting)
(“[A] truthful proposition does not imply the truth of its converse.”).
Logicians refer to this deductive misstep as “The Fallacy of Negative
Premises.” See Ruggio J. Aldisert, Logic for Lawyers: A Guide to Clear
Legal Thinking 156-57 (3d ed. 1997). The fallacy consists of drawing an
affirmative conclusion from a negative premise; if either premise is
negative, the conclusion must be negative. See id. at 156 (“If one premise
[of a syllogism] is negative, the conclusion must be negative.”); Irving M.
Copi & Carl Cohen, Introduction to Logic 247 (13th ed. 2009) (“If either
premise is negative, the conclusion must be negative.”); Timothy R.
Zinnecker, Syllogisms, Enthymemes and Fallacies: Mastering Secured
Transactions Through Deductive Reasoning, 56 Wayne L. Rev. 1581, 1641
(2010) (“A categorical syllogism . . . is invalid if the conclusion is positive
and one of the premises is negative.”). The only pertinent holding in
Foulenfont was that an unenclosed space like a fenced area does not
constitute a structure. See pp. 7-8, above. Because the minor premise is
based on Foulenfont’s negative holding, the conclusion itself must be
negative.
The fallacy becomes evident when we insert Foulenfont’s actual
holding into Mr. Turrieta’s syllogism:
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Major premise: A structure used as living quarters
is a dwelling house. (Uniform Jury
Instructions)
Minor premise: Spaces that are not enclosed, like
fenced areas, are not structures.
(Foulenfont)
Conclusion: Enclosed vehicles and watercraft
can be dwelling houses.
This conclusion is illogical. The only premise to be drawn from Foulenfont
is negative (unenclosed spaces like fenced areas are not structures);
therefore, the conclusion must also be negative. In other words, the fact
that an unenclosed space is not a structure does not mean that all enclosed
spaces (including vehicles, watercraft, and aircraft) are structures.
Mr. Turrieta’s interpretation of Foulenfont not only flouts principles
of logic but also clashes with State v. Ruiz, 617 P.2d 160 (N.M. Ct. App.
1980). 2 There the New Mexico Court of Appeals decided that criminal
trespass is a lesser included offense of Part (A) of New Mexico’s burglary
statute. 617 P.2d at 168-69. The court explained that “[t]he offense
charged was burglary of a dwelling house; thus, we are not concerned with
2
Ruiz was decided by the New Mexico Court of Appeals rather than
the New Mexico Supreme Court. Nonetheless, the opinion serves as “‘a
datum for ascertaining state law which is not to be disregarded by a federal
court unless it is convinced by other persuasive data that the highest court
of the state would decide otherwise.’” Stickley v. State Farm Mut. Auto.
Ins., 505 F.3d 1070, 1077 (10th Cir. 2007) (quoting West v. AT&T, 311
U.S. 223, 237 (1940)). With this datum, we have little reason to expect the
New Mexico Supreme Court to decide the issue differently than the New
Mexico Court of Appeals did in Ruiz.
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vehicles, watercraft or aircraft or other structures.” Id. at 167. The court
added that “[w]hen one enters another’s dwelling house, under our burglary
statute, one has entered lands of another. This reasoning, of course, would
not apply if the burglary was of a vehicle, watercraft or aircraft.” Id.
at 168. In this manner, Ruiz distinguishes burglary of a dwelling house
under Part (A) from the burglary of another structure like a vehicle,
watercraft, or aircraft.
Mr. Turrieta argues that no one in Ruiz addressed whether a vehicle,
watercraft, or aircraft could constitute a dwelling house, rendering this
discussion as dicta. We disagree. Regardless of whether a party raised the
issue, the court decided it. See Bryan A. Garner et al., The Law of Judicial
Precedent 51 (2016) (“[T]he distinction between a holding and a dictum
doesn’t depend on whether the point was argued by counsel . . . .”). And
even if the discussion constituted dicta rather than a holding, the court’s
resolution of the issue provides insight into how the New Mexico Supreme
Court would ultimately decide the issue. See City of Aurora v. Bechtel
Corp., 599 F.2d 382, 386 (10th Cir. 1979) (stating that dicta in state court
decisions are persuasive sources to interpret state law).
Even if the combination of Foulenfont and a uniform jury instruction
were otherwise persuasive, Mr. Turrieta would need to show “a realistic
probability, not a theoretical possibility, that the State would apply” its
statute on residential burglary when the property involves a vehicle,
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watercraft, or aircraft. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007). To satisfy this hurdle, Mr. Turrieta “must at least point to his own
case or other cases in which the state courts in fact did apply the statute in
the special (nongeneric) manner for which he argues.” Id.
Mr. Turrieta does not meet this burden, for he does not suggest that
New Mexico authorities have ever charged someone for residential
burglary based on entry into an occupied vehicle, watercraft, or aircraft.
Instead, he points to two areas of New Mexico case law that allegedly
define “dwelling house” to include vehicles: (1) aggravated burglary and
(2) shooting at a dwelling.
According to Mr. Turrieta, New Mexico case law shows that
aggravated burglary of a dwelling house includes burglary of a mobile
home or trailer. N.M. Stat. Ann. § 30-16-4; see State v. Alvarez-Lopez, 98
P.3d 699, 702 (N.M. 2004) (addressing a conviction for the aggravated
residential burglary of a mobile home); State v. Romero, 958 P.2d 119, 124
(N.M. Ct. App. 1998) (stating that criminal trespass was necessarily
included within “the offense of aggravated burglary of a dwelling house”
when the dwelling house was a trailer). But the cited cases do not support
Mr. Turrieta’s argument because aggravated burglary does not distinguish
between the types of structures burgled. See N.M. Stat. Ann. § 30-16-4
(“Aggrevated burglary consists of the unauthorized entry of any vehicle,
watercraft, aircraft, dwelling or other structure . . . .”). A defendant can be
12
convicted of aggravated burglary based on aggravating circumstances; the
type of structure does not matter.
Mr. Turrieta agrees but insists that in two cases, New Mexico’s
appellate courts “treated the aggravated burglary offenses as though they
involved only dwellings.” Appellant’s Reply Br. at 8. In one of the cited
opinions, the court stated in its factual summary that the crime had
consisted of “aggravated residential burglary” and that the property had
been a mobile home. Alvarez-Lopez, 98 P.3d at 702. In the other cited case,
the court referred to a trailer as a dwelling house. Romero, 958 P.2d
at 124. In both cases, the courts
 had no need to decide whether a mobile home or trailer would
constitute a residence or dwelling house and
 never discussed these characterizations.
See Alvarez-Lopez, 98 P.3d 699 (N.M. 2004); Romero, 958 P.2d at 124. As
a result, little can be drawn from the courts’ isolated, inconsequential
references to a mobile home or trailer as a “residence” or “dwelling
house.”
In addition, Mr. Turrieta focuses on cases involving shooting at a
dwelling. N.M. Stat. Ann. § 30-3-8(A). The uniform jury instruction
defines a “dwelling” the same way as a “dwelling house” in Part (A) of the
burglary statute. See N.M. R. Ann., Crim. Unif. Jury Instruction 14-340 n.1
(stating that the definition of “dwelling” in the burglary jury instruction
13
should be given for a charge of shooting at a dwelling). And, as Mr.
Turrieta points out, defendants have been convicted of shooting at a
dwelling when the dwelling consists of a trailer or mobile home. See, e.g.,
State v. Varela, 993 P.2d 1280, 1284 (N.M. 1999); State v. Coleman, 264
P.3d 523, 528-29 (N.M. Ct. App. 2011); State v. Highfield, 830 P.2d 158,
159 (N.M. Ct. App. 1992).
But none of the cited cases addressed whether a trailer or mobile
home qualified as a dwelling. See, e.g., Varela, 993 P.2d 1280; Coleman,
264 P.3d at 528 (“Defendant raises no issues as to whether Villa’s trailer
constituted a dwelling.”); Highfield, 830 P.2d at 160. When parties do not
raise or consider an issue and the court does not address it, “the case is not
a binding precedent on [that] point.” United States v. L.A. Tucker Truck
Lines, 344 U.S. 33, 38 (1952). Therefore, the cases on shooting at a
dwelling do not support classification of trailers or mobile homes as
“dwellings” or “dwelling houses.”
Mr. Turrieta acknowledges that none of the New Mexico cases
addressed whether a trailer or mobile home qualifies as a dwelling. But he
asserts that “prosecutors, trial judges, juries and presumably defense
counsel considered mobile homes and trailers as matching the § 30-16-3(A)
‘dwelling house’ definition.” Appellant’s Reply Br. at 7. We have no
evidence for the assertion. Mr. Turrieta merely assumes that the
14
prosecutors, trial judges, juries, and defense counsel had considered the
potential issue involving the existence of a dwelling.
* * *
Mr. Turrieta has not identified a single New Mexico case holding
that a “dwelling” or “dwelling house” includes an occupied vehicle,
watercraft, or aircraft. Therefore, New Mexico’s crime of residential
burglary does not cover entry into an occupied vehicle, watercraft, or
aircraft.
IV. Conclusion
Mr. Turrieta’s convictions 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
independently of the Residual Clause. As a result, the district court did not
err in denying Mr. Turrieta’s motion to vacate his 15-year sentence.
Affirmed.
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