United States v. Martinez

FILED
United States Court of Appeals
Tenth Circuit

April 19, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 09-6049
CELSO TOLON MARTINEZ,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:08-CR-00163-M-1)

Submitted on the briefs: *

Raymond P. Moore, Federal Public Defender, (Vicki Mandell-King, Assistant
Federal Public Defender, with him on the briefs), Denver, Colorado, for
Defendant - Appellant.

Robert J. Troester, Acting United States Attorney, (Chris M. Stephens, Assistant
United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for
Plaintiff - Appellee.

Before HARTZ, SEYMOUR, and GORSUCH, Circuit Judges.

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
HARTZ, Circuit Judge.

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; but it is not a violent

felony under the ACCA. Therefore, we reverse Mr. Martinez’s sentence and

remand for resentencing.

I. BACKGROUND

Mr. Martinez pleaded guilty to being a felon in possession of a firearm.

See 18 U.S.C. § 922(g)(1). He had previously been convicted twice in Arizona of

attempted second-degree burglary. The probation office’s presentence report

(PSR) treated the two offenses as crimes of violence, giving him a base offense

level of 24. See USSG § 2K2.1(a)(2) (2008). It also treated the two offenses, as

well as his prior Arizona offense of second-degree burglary, as violent felonies.

Because he had been convicted of three prior violent felonies, his felon-in-

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possession sentence was affected in two ways. First, his sentence was enhanced

under the ACCA, which required a minimum sentence of 15 years (180 months).

See 18 U.S.C. § 924(e)(1). Second, because he was subject to an enhanced

sentence under the ACCA, his guidelines offense level was raised to 33. See

USSG § 4B1.4(a), (b)(3)(B). After adjustments for various other factors, his total

offense level was computed to be 30 and his criminal-history category was VI.

The corresponding advisory guideline range was 168 to 210 months’

imprisonment. This was modified to a range of 180 to 210 months because of the

ACCA mandatory minimum of 180 months. See id. § 5G1.1(c)(2).

Mr. Martinez objected to the PSR, contending that his attempt offenses

were not crimes of violence or violent felonies. The district court overruled his

objections and sentenced him to 180 months’ imprisonment. He appeals, arguing

that the Arizona offense of attempted burglary (1) is not a crime of violence under

the guidelines, and (2) is not a violent felony under the ACCA. We begin with

the ACCA issue.

II. DISCUSSION

A. ACCA—Violent Felony

Whether a prior offense is a violent felony under the ACCA is a legal

question that we review de novo. See United States v. Hernandez, 568 F.3d 827,

828 (10th Cir. 2009). The ACCA imposes a 15-year minimum sentence on

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defendants who violate 18 U.S.C. § 922(g) and “ha[ve] three previous convictions

. . . for a violent felony.” 18 U.S.C. § 924(e)(1). A violent felony includes

any crime punishable by imprisonment for a term exceeding one year
. . . that—
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another.

Id. § 924(e)(2)(B). To determine whether an offense is a violent felony, we

“generally look[] only to . . . the statutory definition of the . . . offense.”

Hernandez, 568 F.3d at 829 (internal quotation marks omitted). The parties agree

that clause (i) does not apply here, and the government does not suggest that this

case involves an offense enumerated in clause (ii). Therefore, we need consider

only whether attempted burglary is a violent felony under clause (ii)’s residual

provision—that is, whether it “otherwise involves conduct that presents a serious

potential risk of physical injury to another.”

The Supreme Court has interpreted the residual provision to encompass

some attempt offenses. See James v. United States, 550 U.S. 192 (2007). In

James it considered whether “attempted burglary, as defined by Florida law, is a

‘violent felony.’” Id. at 195. Although Florida’s criminal code defines the

conduct required for an attempt as “‘any act toward the commission of [the]

offense,’” id. at 197 (quoting Fla. Stat. § 777.04(1) (2003)), the state supreme

court has “considerably narrowed [the statute’s] application in the context of

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attempted burglary,” id. at 202. It “requir[es] an overt act directed toward

entering or remaining in a structure or conveyance. Mere preparation is not

enough.” Id. (citation and internal quotation marks omitted). Moreover,

“Florida’s lower courts appear to have consistently applied this heightened

standard.” Id. at 202–03.

James analyzed whether attempted burglary as so defined is “‘conduct that

presents a serious potential risk of physical injury to another.’” Id. at 203

(quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Recognizing “[t]he specific offenses

enumerated in clause (ii) [as] one baseline from which to measure whether other

similar conduct” satisfies the residual provision, the Court compared “the risk

posed by attempted burglary . . . to that posed by its closest analog among the

enumerated offenses— . . . completed burglary.” Id. The “main risk of

burglary,” it said, “arises not from the completion of the burglary, but from the

possibility that an innocent person might appear while the crime is in progress.”

Id. Attempted burglary—which in Florida requires an overt act directed toward

entry—“poses the same kind of risk” because “[i]nterrupting an intruder at the

doorstep while the would-be burglar is attempting a break-in creates a risk of

violent confrontation comparable to that posed by finding him inside the structure

itself.” Id. at 203–04. The Court concluded that Florida’s attempted-burglary

offense falls within § 924(e)(2)(B)(ii)’s residual provision and is a violent felony.

See id. at 209.

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 James, however, resolved the violent-felony issue only for attempted-

burglary laws that require overt acts directed toward entry. It left unanswered

whether “more attenuated conduct . . . presents a potential risk of serious injury

under [the] ACCA.” Id. at 206.

But in this circuit we have a clarifying precedent, United States v. Fell, 511

F.3d 1035 (10th Cir. 2007). Fell considered whether the Colorado offense of

conspiracy to commit second-degree burglary is a violent felony under the ACCA.

See id. at 1037. That offense is simply an agreement to commit such a burglary,

although one cannot be convicted of the offense absent an overt act by a

conspirator in pursuit of the conspiracy. See id. at 1040. Because in Colorado a

conspiracy to commit burglary does not require an act directed toward entry of a

building, we were confronted with the “very question the Supreme Court deemed

unnecessary to resolve in James, i.e., whether a conviction for an inchoate crime

encompassing preparatory conduct is a violent felony.” Id. at 1041.

We concluded that it is not. Using the James framework, we examined

whether conspiracy to commit burglary presents a risk of physical harm

comparable to that of completed burglary. See id. at 1042. Although conspiracy

may “increase . . . the theoretical possibility” that a burglary will occur, we

emphasized that this possibility does not translate into a risk of physical harm.

Id. at 1043. We explained:

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 Unlike the situation presented in James, where Florida’s overt act
requirement is never satisfied unless the would-be burglar is actually
present at the targeted building and attempting to enter it, we can
only speculate at the likelihood that a conspirator involved in an
ordinary Colorado case of conspiracy to commit second degree
burglary will ultimately travel to the targeted building to complete
the substantive crime of burglary. Accordingly, we cannot determine
with any degree of certainty that it is probable a conspirator will
actually attempt to enter the building. Yet, if the conspirator is not at
the building or in the vicinity, the potential risk of physical injury to
others is nearly nonexistent.

Id. Nor does the overt-act requirement change the calculus:

[T]he [overt] act need not be directed toward the entry of a building
or structure. Once an agreement to burglarize a property is reached,
overt acts in furtherance of the collective objective will typically
include attenuated conduct such as purchasing tools and supplies,
arranging transportation to and from the building, and obtaining
plans or maps. Usually such acts can be committed a considerable
distance from the targeted property and ordinarily without raising
any suspicions on the part of third parties. Thus, many overt acts
sufficient to sustain a Colorado conspiracy conviction create no risk
of a violent confrontation between the defendant and an individual
interacting with the conspirator while the overt act is being
committed.

Id. at 1044.

Fell therefore held that the Colorado offense of conspiracy to burglarize is

not a violent felony under the ACCA. See id.; see also United States v. Strahl,

958 F.2d 980, 985–86 (10th Cir. 1992) (Utah attempted burglary is not a violent

felony under the residual provision of 18 U.S.C. § 924(e)(2)(B)(ii); although Utah

attempt statute requires a substantial step toward commission of the offense, the

step can be preparatory, such as making a duplicate key or casing the building);

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United States v. Permenter, 969 F.2d 911, 912 –1 3, 915 (10th Cir. 1992) (same for

Oklahoma offense of attempted burglary; Oklahoma attempt statute requires only

an act toward commission of the offense). Although Fell involved a conspiracy

offense, its rationale applies to attempted burglaries. If one can commit the

offense of attempted burglary in many ways without an act directed toward entry

of the building, the risk of physical injury to another is too speculative to satisfy

the residual provision of 18 U.S.C. § 924(e)(2)(B)(ii).

We recognize that our opinion in Fell predates the Supreme Court decision

in Begay v. United States, 128 S. Ct. 1581 (2008), which also addresses the

residual provision of § 924(e)(2)(B)(ii). But we see nothing in Begay that would

call into question the analysis in Fell. Begay said that the residual provision

should cover only “crimes that are roughly similar, in kind as well as in degree of

risk posed,” to the crimes enumerated earlier in clause (ii). Id. at 1585. Begay

held that the New Mexico offense of driving under the influence of alcohol was

not similar “in kind” to the enumerated offenses. See id. at 1586. James,

however, dealt with similarity to “degree of risk posed.” See id. at 1585. In other

words, the two opinions address distinct components of the Court’s two-part test

for determining whether an offense satisfies the residual provision of clause (ii).

We now turn to Arizona law. Mr. Martinez was convicted in Arizona of

attempted second-degree burglary. Second-degree burglary is defined as

“entering or remaining unlawfully in or on a residential structure with the intent

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to commit any theft or any felony therein.” Ariz. Rev. Stat. § 13-1507(A) (1981).

The relevant portion of Arizona’s attempt statute provides:

A person commits attempt if, acting with the kind of culpability
otherwise required for commission of an offense, such person . . .
[i]ntentionally does or omits to do anything which, under the
circumstances as such person believes them to be, is any step in a
course of conduct planned to culminate in commission of an offense.

Id. § 13-1001(A)(2) (1978) (emphasis added).

The government likens the Arizona offense of attempted burglary to

Florida’s attempt law. Although acknowledging that § 13-1001(A)(2) punishes

“‘any step’” toward commission of an offense, Aplee. Br. at 10 (quoting

§ 13-1001(A)(2)), the government contends that Arizona’s attempt law

“functionally requires a substantial step toward committing the crime and does

not criminalize merely preparatory conduct,” id. at 17. Thus, it concludes,

“conduct in the ordinary case of an attempted second-degree burglary in Arizona

presents a serious potential risk of injury to another” and, under James, qualifies

as a violent felony. Id. (emphasis omitted).

We disagree. We are not persuaded that the Arizona courts have confined

the scope of attempted burglary as much as the Florida courts have. We first

address the government’s claim that Arizona has construed the “any step”

requirement to mean that the offender must take a “substantial” step toward

commission of the crime.

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 To be sure, some decisions of the Arizona Court of Appeals have construed

the attempt statute to require a substantial step. See State v. Fristoe, 658 P.2d

825, 830 (Ariz. Ct. App. 1982) (affirming conviction of attempt to engage in oral

sexual contact with minors, but saying that “the legislature merely intended to

simplify the language of . . . § 13-1001(A)(2) by using ‘any step’ as opposed to

‘substantial step.’”); State v. Johnson, 111 P.3d 1038, 1040 (Ariz. Ct. App. 2005)

(citing Fristoe for proposition that “any step” means “substantial step,” and

affirming conviction for attempted sexual assault). See also United States v.

Taylor, 529 F.3d 1232, 1238 (9th Cir. 2008) (following Fristoe and Johnson in

construing Arizona attempt statute).

But other cases have required merely “‘any step,’” State v. Carlisle, 8 P.3d

391, 395 (Ariz. Ct. App. 2000) (quoting § 13-1001(A)(2)) (attempted sexual

conduct with a minor), or “‘an overt act towards . . . commission [of the

offense],’” State v. Leyvas, 211 P.3d 1165, 1175 (Ariz. Ct. App. 2009) (quoting

State v. Clark, 693 P.2d 987, 989 (Ariz. Ct. App. 1984)) (attempted armed

robbery); see State v. Cleere, 138 P.3d 1181, 1184 (Ariz. Ct. App. 2006)

(describing the required conduct both as “some overt act” and “any step” (internal

quotation marks omitted)). Cleere is particularly instructive. The court, citing

§ 13-1001(A)(2), said, “[O]ne could commit attempted murder by taking a step

far short of inflicting or even threatening serious physical injury.” 138 P.3d at

1184. It also cited for support the opinion in State v. Mandel, 278 P.2d 413 (Ariz.

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1954), decided before the current attempt statute was enacted, which affirmed a

conviction of attempted murder even though the hit man hired by the defendant

had gone to the police and the target was not harmed. See id. And a recent

unpublished opinion of the Arizona Court of Appeals said that “in the years

following the adoption of § 13-1001, our courts repeatedly have stated that the

crime of attempt merely requires a person to take ‘any step,’ not a substantial

step, toward the commission of a crime.” State v. Garcia, No. 2 CA-CR

2008-0020, 2009 WL 104639, at *3 (Ariz. Ct. App. Jan. 15, 2009) (unpublished).

Most importantly, the Arizona Supreme Court has never used the

substantial-step formulation in applying § 13-1001(A)(2). See Mejak v.

Granville, 136 P.3d 874, 878 (Ariz. 2006) (en banc) (“Attempt requires only that

the defendant intend to engage in illegal conduct and that he take a step to further

that conduct.” (emphasis added)); State v. Van Adams, 984 P.2d 16, 28 (Ariz.

1999) (en banc) (an attempt occurs “when a person intentionally takes steps

intended to ‘culminate in the commission of an offense.’” (quoting

§ 13-1001(A)(2)); State v. Williams, 904 P.2d 437, 451 (Ariz. 1995) (en banc) (a

person commits an attempt if, with the requisite culpability, he “intentionally

does or omits to do anything which is any step in a course of conduct planned to

culminate in commission of an offense.” (emphasis added)).

Moreover, even if the Arizona attempt statute requires a substantial step, it

would still prohibit attenuated conduct, and attempted burglary would therefore

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still be disqualified from being a violent felony under Fell. One can take a

substantial step toward committing a crime without being on the verge of

committing it. For example, in Fristoe, which said that an attempt required a

substantial step, the Arizona Court of Appeals upheld a conviction for attempted

oral sexual contact with minors when the defendant’s conduct consisted of driving

up to the young girls and offering them money in exchange for sexual contact.

See 658 P.2d at 830–31. We would assume that Arizona courts would interpret

“substantial step” as it is described in the attempt provision of the Model Penal

Code (MPC). See MPC § 5.01(1)(c) (a person commits attempt if, with the

requisite intent, he takes “a substantial step in a course of conduct planned to

culminate in his commission of the crime.”). The MPC sets forth examples of

conduct that may constitute a substantial step, including “reconnoitering the place

contemplated for the commission of the crime.” Id. § 5.01(2)(c). The MPC

comment addressing this example states: “The rationale . . . is that firmness of

purpose is shown when the actor proceeds to scout the scene of the contemplated

crime in order to detect possible dangers and to fix on the most promising avenue

of approach.” Id. § 5.01, cmt. n.6(b)(iii), at 337. Such reconnoitering, which

may be conducted hours, or even days, before the planned burglary, would not

constitute attempted burglary under Florida law (as understood in James) and

does not present risks of physical harm comparable to that of completed burglary.

See Fell, 511 F.3d at 1043; Permenter, 969 F.2d at 913 (when conduct such as

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“‘casing’ the targeted structure”—that is, reconnoitering—can sustain an

attempted-burglary conviction, the attempt offense is not a violent felony under

the ACCA).

Our interpretation of the Arizona attempt statute is not altered by the

language in State v. Dale, 590 P.2d 1379, 1380 (Ariz. 1979) (en banc), that an

attempt requires action “beyond the stage of mere preparation.” Dale, although

handed down after enactment of the present version of § 13-1001, applied the

prior version because the alleged offense occurred on August 6, 1977, preceding

the new statute’s effective date. See id. No Arizona Supreme Court opinion

applying the present statute has repeated the “mere preparation” language.

Accordingly, we do not read Arizona’s attempt law as congruent with

Florida’s attempt law. Indeed, the government has not shown that in Arizona the

offense of attempted burglary is narrower than the same offenses in Utah and

Oklahoma, which were found not to be violent felonies in Strahl (Utah) and

Permenter (Oklahoma). Although the analysis in Strahl and Permenter may be

questioned because the opinions preceded James, our opinion in Fell makes clear

that their holdings survived James. Far from suggesting that the overt act

required for the Colorado crime of conspiracy to commit burglary could be more

attenuated than the acts required to commit attempted burglary in Utah or

Oklahoma, Fell analogized the acts governed by those statutes. We wrote:

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 [T]here is no basis upon which this court can conclude the overt act
requirement necessary to sustain a Colorado conspiracy conviction is
analogous to the Florida overt act requirement analyzed in James.
Under Colorado law, a jury can convict a defendant of conspiracy to
commit second degree burglary without proof that a conspirator
committed an act directed toward the entry of the building or
structure. Accordingly, the Colorado conspiracy statute is analogous
to the Utah and Oklahoma attempt statutes we analyzed in Strahl and
Permenter, where we concluded the statutes permitted criminal
convictions if a jury finds a defendant engaged in mere preparatory
conduct “‘with the kind of culpability otherwise required’ for the
commission of a burglary.” Strahl, 958 F.2d at 986 (“[A]n attempted
burglary conviction may be based upon conduct such as making a
duplicate key, ‘casing’ the targeted building, obtaining floor plans of
a structure, or possessing burglary tools.”).

511 F.3d at 1041. Following Fell, we hold that attempted burglary under Arizona

law is not a violent felony.

B. Sentencing Guidelines—Crime of Violence

Mr. Martinez also contends that his attempt offenses are not crimes of

violence under USSG § 4B1.2(a). We review de novo the district court’s

interpretation of the guidelines. See United States v. Williams, 559 F.3d 1143,

1146 (10th Cir. 2009).

The firearms guideline assigns a defendant a base offense level of 24 if he

has “two felony convictions of . . . a crime of violence.” USSG § 2K2.1(a)(2). A

crime of violence is

any offense under federal or state law, 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, or

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 (2) is burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.

Id. § 4B1.2(a); see also id. § 2K2.1 cmt. n.1 (cross-referencing § 4B1.2(a) for

definition of crime of violence). This language is very similar to the ACCA

language defining the term violent felony. And we have looked to interpretations

of the ACCA to guide our reading of § 4B1.2(a). See Williams, 559 F.3d at 1147

n.7. But the definitions are not identical. The Sentencing Commission was not

bound to use for its purposes the ACCA definition of violent felony. Indeed, it

chose to use a different term—crime of violence, rather than violent felony.

To interpret the guideline language, we customarily look to the Sentencing

Commission’s commentary. See USSG § 1B1.7 (“The Commentary that

accompanies the guideline sections . . . may interpret the guideline or explain how

it is to be applied.”). “[C]ommentary issued by the Sentencing Commission to

interpret or explain a guideline is binding and authoritative unless it violates the

Constitution or a federal statute, or is inconsistent with, or a plainly erroneous

reading of, that guideline. In this context, a guideline and its commentary are

inconsistent only when ‘following one will result in violating the dictates of the

other.’” United States v. Morris, 562 F.3d 1131, 1135 (10th Cir. 2009) (ellipses

omitted) (quoting Stinson v. United States, 508 U.S. 36, 43 (1993)). Pertinent to

this case, the commentary to § 4B1.2 states: “‘Crime of violence’ and ‘controlled

substance offense’ include the offenses of aiding and abetting, conspiring, and

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attempting to commit such offenses.” USSG § 4B1.2 cmt. n.1. Mr. Martinez

does not dispute that the commentary would require treating his two attempted-

burglary offenses as crimes of violence under the guideline. Rather, he asserts

that the commentary is invalid because it is inconsistent with the language of

§ 4B1.2 itself. We disagree.

Application note 1 to § 4B1.2 can be reconciled with the language of

guideline § 4B1.2 in two reasonable ways. First, the note may be viewed as a

definitional provision. It tells us that when the guideline uses the word for a

specific offense, that word is referring to not just the completed offense but also

“aiding and abetting” the offense, “conspiring” to commit the offense, and

“attempting” to commit the offense. Rather than cluttering the guidelines with,

say, “burglary, aiding and abetting burglary, conspiring to commit burglary, and

attempting to commit burglary,” the Sentencing Commission uses the shorthand

expression “burglary.” Indeed, definitions of terms used in the guidelines are

commonly placed in the application notes. See, e.g., id. § 2A4.1 cmt. nn.1–3

(defining terms used in the kidnapping guideline); id. § 2B1.1, cmt. n.1 (defining

terms used in theft guideline); id. § 3A.1.1 cmt. n.2 (defining vulnerable victim in

the hate-crime guideline). Even when the same term is used in several guideline

sections, the commentary may define the term differently for a particular

guideline. See, e.g., id. § 2A4.1 cmt. n.1 (adopting narrower meaning of serious

bodily injury for that guideline).

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 Second, application note 1 may reflect the Sentencing Commission’s view

that when an offense is a crime of violence, so is attempting the offense (as well

as aiding and abetting or conspiring to commit the offense), because it presents a

“serious potential risk of physical injury to another” comparable to that presented

by the completed offense. Id. § 4B1.2(a)(2). The Supreme Court read the

application note this way in James. It used the note to support its holding (that

the Florida offense of attempted burglary is a violent felony), saying:

The United States Sentencing Commission has come to a similar
conclusion with regard to the Sentencing Guidelines’ career offender
enhancement, whose definition of a predicate “crime of violence”
closely tracks ACCA’s definition of “violent felony.” The
Commission has determined that “crimes of violence” for the purpose
of the Guidelines enhancement “include the offenses of aiding and
abetting, conspiring, and attempting to commit such offenses.”
§ 4B1.2, comment., n. 1. This judgment was based on the
Commission’s review of empirical sentencing data and presumably
reflects an assessment that attempt crimes often pose a similar risk of
injury as completed offenses. As then-Chief Judge Breyer explained,
“the Commission, which collects detailed sentencing data on
virtually every federal criminal case, is better able than any
individual court to make an informed judgment about the relation
between” a particular offense and “the likelihood of accompanying
violence.” United States v. Doe, 960 F.2d 221, 225 (C.A.1 1992).

James, 550 U.S. at 206 (citation and brackets omitted). Because the inclusion of

attempt offenses as crimes of violence depends on empirical data, it is hard to see

how the application note’s inclusion of attempts could be inconsistent with the

guideline language. Inclusion may be “wrong” as a factual matter (if attempts do

not actually present risks comparable to those created by completed offenses).

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But it is not the guideline language in itself that dictates a result different from

what the application note prescribes. See Morris, 562 F.3d at 1135 (“[A]

guideline and its commentary are inconsistent only when following one will result

in violating the dictates of the other.” (internal quotation marks omitted)). We

cannot invalidate an application note merely because our view of empirical data

differs from that of the Sentencing Commission.

For the above reasons, we hold that Arizona attempted burglary is a crime

of violence under the Sentencing Guidelines.

III. CONCLUSION

We AFFIRM the district court’s ruling that Mr. Martinez’s attempted-

burglary offenses are crimes of violence but REVERSE its ruling that the offenses

are violent felonies. We therefore REMAND for re-sentencing. We GRANT

Mr. Martinez’s unopposed motion to take judicial notice.

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