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United States v. Martinez

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Before HARTZ, SEYMOUR, and GORSUCH, Circuit Judges.

Celso Tolon Martinez was sentenced to 180 months’ imprisonment by the United States District Court for the Western District of Oklahoma. The only questions on appeal are whether his two prior attempted-burglary convictions in Arizona should have been used to enhance his sentence under the United States Sentencing Guidelines and under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The district court ruled that the Arizona offense of attempted second-degree burglary is a “crime of violence” under the guidelines and a “violent felony” under the ACCA. We have jurisdiction under 28 U.S.C. § 1291. We agree that the Arizona offense is a crime of violence; butit is not a violent felony under the ACCA. Therefore, we reverse Mr. Martinez’s sentence and remand for resentencing.

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