Matthews

concurring in part and dissenting in part:

I concur in the court’s affirmance of Matthews’s conviction, but I must respectfully dissent from its disposition of the sentencing issue in this case. Even assuming that the district court erred in applying the Armed Career Criminal (“ACC”) enhancement of 18 U.S.C. § 924 (e), 1 I cannot concur in the drastic step of remanding for resentencing on the record as it now stands, i.e., closing the *1087 record. There is simply no reason in this case for deviating from our “general practice” of allowing the district court to conduct further appropriate proceedings on remand for purposes of resentencing. United States v. Washington, 172 F.3d 1116, 1118 (9th Cir.1999); see also United States v. Parrilla, 114 F.3d 124, 128 (9th Cir.1997) (“On remand, the district court should conduct further proceedings as may be necessary to enable it to make appropriate findings to resolve the factual dispute .... ”); United States v. Hedberg, 902 F.2d 1427, 1429 (9th Cir.1990) (remanding for de novo sentencing proceedings).

The Eighth Circuit opinion cited by the majority, United States v. Hudson, 129 F.3d 994 (8th Cir.1997), is rather cryptic and not very…

Opinion by Judge B. FLETCHER; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN

James Earl Matthews was indicted and tried on three counts of being a felon in possession of a firearm and two counts of unlawful possession of stolen firearms. After a jury trial, he was acquitted of the latter two charges, and the district judge dismissed two of the three felon in possession of a firearm counts as multiplicitous. The Presentence Investigative Report (“PSI”) recommended that Matthews be sentenced for the remaining gun possession conviction as an Armed Career Criminal (“ACC”) under the United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.4(b)(3)(B) (1997). Despite an objection by his counsel that Matthews’s prior burglary and attempted burglary convictions were not qualifying crimes, Matthews was sentenced as an ACC to 280 months in prison. He appeals both his underlying conviction and his sentence.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We affirm the district court on all of the claims challenging the underlying conviction. We reverse on the sentencing issue and remand for resentencing on the existing record.

I.

This case arises out of a…