FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 11, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6028
(D.C. Nos. 5:17-CV-00072-R and
LUIS ENRIQUE RODRIGUEZ- 5:15-CR-00078-R-1)
ARROYO, (W.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before MATHESON, MURPHY, and CARSON, Circuit Judges.
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On November 26, 2018, this court granted a certificate of appealability on
Appellant’s claim that his trial counsel was ineffective for failing to object to the
enhancement of his sentence based on his prior Oklahoma second-degree burglary
convictions. The court ordered the United States to file a response brief by December
26, 2018. In response, on December 7, 2018, the government filed an unopposed
*
In light of this decision, the oral argument scheduled for January 24, 2019 in
Denver, Colorado is vacated, and all counsel scheduled to appear are excused from
attending. This matter is submitted on the briefs. Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under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.
Motion to Remand to the district court for additional proceedings as to whether
Oklahoma second-degree burglary is a crime of a violence.
Upon consideration, the Motion is granted. This appeal is dismissed, and this
matter is remanded with instructions to the district court to vacate its judgment dated
December 19, 2017 and conduct additional proceedings consistent with the
government’s Motion for Remand filed on December 7, 2018 as well as any other
proceedings the district court deems appropriate in its discretion.
The Clerk is directed to issue the mandate forthwith.
Entered for the Court
Per Curiam
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