Unpublished Disposition, 894 F.2d 410 (9th Cir. 1990)

MEMORANDUM^** 

The government appeals the district court's refusal to enhance Stephen Donn Argo's sentence under the Armed Career Criminal's Act, 18 U.S.C. § 924(e) (1), (ACCA). We affirm.

BACKGROUND

A jury convicted Argo of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (1).

At his sentencing hearing, the government argued that his prior first degree burglary convictions were predicate offenses for the purposes of the ACCA and sought enhancement of his sentence. Relying on United States v. Sherbondy, 865 F.2d 996 (9th Cir. 1988), the court determined that Argo's burglaries did not qualify as predicate offenses and refused to enhance the sentence.

The government appealed under 18 U.S.C. § 3731 and Sec. 3742(b). After the appeal was filed, an Oregon court reduced two of Argo's three prior burglary convictions from first to second degree.

DISCUSSION

We review de novo the interpretation and application of the ACCA. United States v. Chatman, 869 F.2d 525, 527 (9th Cir. 1989).

The ACCA provides for sentence enhancement when the defendant has three prior "violent felony" convictions. 18 U.S.C. § 924(e) (1). The term "violent felony" is defined as a crime which "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e) (2) (B) (ii). We construe the act strictly in favor of the accused. Chatman, 869 F.2d at 527.

We held recently that an Oregon second degree burglary conviction is an impermissible basis for sentence enhancement because it "does not fit the definition of burglary or violent crime" contained in the ACCA. United States v. Cunningham, 878 F.2d 311 at 312 (9th Cir. 1989). The government may not seek sentence enhancement based on Argo's prior convictions because the second degree convictions may not be used for enhancement. The judgment is AFFIRMED.¹