FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 7, 2017
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-7006
(D.C. No. 6:16-CR-00025-RAW-1)
JASON WAYNE CAREY, (E.D. Okla.)
Defendant - Appellant.
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ORDER AND JUDGMENT*
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Before KELLY, MURPHY, and MATHESON, Circuit Judges.
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Defendant-Appellant Jason Wayne Carey appeals from the sentence imposed
after pleading guilty to being a felon in possession of explosives. 18 U.S.C.
§§ 842(i)(1), 844(a)(1). Our jurisdiction arises under 28 U.S.C. § 1291 and 18
*
This order and judgment is not binding precedent, except under the doctrines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.
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
U.S.C. § 3742(a), and we remand to the district court to vacate the judgment and
resentence.
Mr. Carey was sentenced to 60 months’ imprisonment and three years’
supervised release. 1 R. 42–44. The PSR recommended a guideline range of 37 to
46 months, based in part on Mr. Carey committing the offense “subsequent to
sustaining one felony conviction of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 2K1.3(a)(2); see 3 R. 3–4. The prior violent felony
was pointing a weapon at another person in violation of Okla. Stat. tit. 21, § 1289.16.
See 3 R. 4. But in United States v. Titties, 852 F.3d 1257, 1275 (10th Cir. 2017), we
held that a conviction under this statute does not qualify as a crime of violence under
the Armed Career Criminal Act. This definition resembles that found in the
sentencing guidelines. The government concedes that this intervening decision
controls here. Aplee. Br. at 4. Accordingly, we REMAND to the district court to
vacate its judgment and resentence.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
2