United States v. Martinez

Opinion

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

FOR THE TENTH CIRCUIT April 22, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BRISCOE, KELLY, and CARSON, Circuit Judges. _________________________________

Albert Martinez appeals the sentence imposed following 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 outstanding warrant for failure to report to his probation

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. officer. ROA Vol. II at 11–12, 33. After Martinez was arrested, police 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 violation of 18 U.S.C. § 922(g)(1). Id. at 24. He had three

prior New Mexico convictions: one for residential burglary, and two convictions for

robbery. ROA Vol. I at 7–8, 19. Martinez 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 court disagreed, found the convictions

qualified as predicate offenses, 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 violent felony or a serious drug offense, 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” that: (1) “has as an element the use, attempted use, or

threatened use of physical force against the person of another” (elements clause); (2)

“is burglary, arson, or extortion, [or] involves the use of explosives” (enumerated

clause); or (3) “otherwise involves conduct that presents a serious potential risk of

physical injury to another” (residual clause). Id. § 924(e)(2)(B). Martinez challenges

the application of the ACCA to all three of his prior convictions. However, we have

previously held that convictions for residential burglary and robbery under New

2 Mexico law are violent felonies. Martinez has presented nothing in his appellate

briefing which would support our ruling to the contrary.

Absent en banc consideration, one panel 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 reality. Aplt. Br. at 7 (citing United States v. White, 782

F.3d 1118, 1126–27 (10th Cir. 2015)). Martinez also acknowledges that United States

v. Turrieta, 875 F.3d 1340 (10th Cir. 2017) clearly 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 independently of the Residual Clause.” Id. at 1347;

see also Aplt. Br. at 7. While an intervening Supreme Court decision or an

intervening state court ruling could provide support for our questioning or overruling

Turrieta, Martinez provides neither. Instead, he argues only that Turrieta

“misconstrued New Mexico law.” Aplt. Br. at 7. Even if this were true, Turrieta

remains controlling: a conviction for residential burglary under New Mexico law

constitutes a violent felony for purposes of the ACCA.

Similarly, we have very recently1 held that a conviction 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, 2020). 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. 3 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 state 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 district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe Circuit Judge