United States v. Tommie Kevin Muchmore

81 F.3d 171 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Tommie Kevin MUCHMORE, Defendant-Appellant. No. 95-35221. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 7, 1996. Decided March 26, 1996. Before: REINHARDT, KOZINSKI and FERNANDEZ, Circuit Judges. 1 MEMORANDUM * 2 We need not consider whether Muchmore is making an impermissible successive petition because the government failed to plead abuse of the writ below. See CR 50; Rules Governing Section 2255 Proceedings for the United States District Courts, R. 9. Our previous disposition, Muchmore v. United States, No. 91-35515, 1992 WL 16754 (9th Cir. Jan. 31, 1992), didn't address the issue now on appeal: Whether Muchmore's California burglary convictions met the federal definition of burglary under former 18 U.S.C. app. § 1202(c)(9) (West 1985). They didn't. Section 1202(c)(9) requires "entering ... surreptitiously." California's burglary…