United States v. Martin Davis

FILED

NOT FOR PUBLICATION FEB 23 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 08-10364

Plaintiff - Appellee, D.C. No. 2:07-cr-00583-JAT-

v.

MEMORANDUM*

MARTIN WALTER DAVIS,

Defendant - Appellant.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Submitted January 11, 2011** San Francisco, California

Before: SCHROEDER, RAWLINSON, and BEA, Circuit Judges.

Martin Walter Davis appeals the district court’s imposition of an enhanced

sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), for

his conviction for being a felon in possession of a firearm. We reverse.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Our review is de novo. United States v. Terrell, 593 F.3d 1084, 1087 (9th

Cir. 2010) (review of whether a…

MEMORANDUM **

Martin Walter Davis appeals the district court’s imposition of an enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924 (e), for his conviction for being a felon in possession of a firearm. We reverse.

Our review is de novo. United States v. Terrell, 593 F.3d 1084, 1087 (9th Cir.2010) (review of whether a conviction is a predicate felony). The evidence is viewed in the light most favorable to the defendant. United States v. Phillips, 149 F.3d 1026, 1029 (9th Cir.1998)

I. Davis’s California burglary is not a violent felony under ACCA.

Under ACCA, a “violent felony” is an offense that is punishable by imprisonment for a term exceeding one year and that “has as an element the use, attempted use, or threatened use of physical force against the person of another” or “is burglary.” 18 U.S.C. § 924 (e)(2)(B). This court recently considered whether first-degree burglary under § 459 qualifies as a “crime of violence” under U.S.S.G. § 2L1.2 cmt. l(B)(iii). United States v. Aguila-Montes de Oca, 655 F.3d 915, 946 (9th Cir.2011) (en banc). The statute at issue in Aguila-Montes de Oca defines “crime of violence” as including “burglary of a dwelling, or…

concurring:

I concur in the result.