UNITED STATES v. AGUIRRE (2018)

ORDER AND JUDGMENT *

Defendant-Appellant Christopher Andres Aguirre pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possessing a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). The district court based Mr. Aguirre's 110-month sentence in part on determining that Mr. Aguirre's prior New Mexico conviction for conspiracy to commit armed robbery qualified as a crime of violence under United States Sentencing Guideline § 4B1.2(a).

Mr. Aguirre argues this determination was erroneous under this court's decision in United States v. Martinez-Cruz, 836 F.3d 1305 (10th Cir. 2016). The Government agrees and posits that “[t]his Court should reverse Aguirre's sentence and remand for resentencing.” Aplee. Br. at 6. We concur with the parties’ analysis of this issue.

In his reply brief, Mr. Aguirre agrees with the Government that this court need not review an argument that he raised in his opening brief—that his prior conviction for making a threat in violation of 18 U.S.C. § 115(a)(1)(A) is a crime of violence, explaining that he would have the opportunity to present that argument at resentencing on remand. Reply Br. at 1.

For the foregoing reasons, we vacate Mr. Aguirre's sentence and remand for resentencing. The mandate shall issue forthwith.

Scott M. Matheson, Jr. Circuit Judge