Unpublished Disposition, 893 F.2d 1339 (9th Cir. 1990)
Annotate this CaseUNITED STATES of America, Plaintiff-Appellee,v.Edward Louis COLOMBI, Defendant-Appellant.
No. 89-30000.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Nov. 2, 1989.Decided Jan. 12, 1990.
D. Or.
SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.
Appeal from the United States District Court for the District of Oregon; District Judge Helen J. Frye, Presiding.
Before EUGENE A. WRIGHT, TANG and FERNANDEZ, Circuit Judges.
MEMORANDUM*
Edward Louis Colombi appeals the district court's use of his Oregon first degree felony burglary convictions for sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1), (ACCA). We reverse and remand for resentencing.
FACTS AND PROCEEDINGS
Colombi was indicted on five counts of being a felon in illegal possession of a firearm in violation of 18 U.S.C. § 922(g) (1). He pleaded guilty to one count. The other four were dismissed. The government filed an information alleging three prior first degree burglary convictions, to seek sentence enhancement under the ACCA. Colombi filed a motion challenging the use of his prior convictions as the basis for sentence enhancement. The district court denied the motion, enhanced the sentence and imposed a 15 year sentence.
Colombi appeals his sentence, asserting that a conviction under Oregon's first degree burglary statute cannot form the basis of sentence enhancement.
DISCUSSION
This court held recently that Congress intended the term burglary in the ACCA to have its common law meaning. United States v. Chatman, 869 F.2d 525, 527 (9th Cir. 1989). There we defined common law burglary as "breaking and entering of the dwelling house of another, in the nighttime, with the intent to commit a felony therein." Id. Oregon's first degree burglary statute does not fit this definition and therefore may not serve as a basis for sentence enhancement.1 United States v. Hunt, No. 88-3222, slip op. at --, (9th Cir. Jan. 8, 1990); cf. United States v. Cunningham, 878 F.2d 311, 312 (9th Cir. 1989) (Oregon second degree burglary conviction is an impermissible basis for sentence enhancement).
The government argues alternatively that, even if Colombi's prior convictions are not for "burglary", the crimes still qualify under the definition of "violent felony".2 This argument is rejected for the reasons stated in Hunt. United States v. Hunt, No. 88-3222, slip op. at --, (9th Cir. Jan. 8, 1990).
The Oregon first degree burglary statute under which Colombi was convicted does not fit the common law definition of burglary, nor qualify as a "violent felony". His sentence is vacated and the case is remanded to the district court for resentencing.3
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
Or.Rev.Stat. Sec. 164.225 reads:
(1) A person commits the crime of burglary in the first degree if the person violates ORS 164.215 [second degree burglary] and the building is a dwelling, or if in effecting entry or while in a building or in immediate flight therefrom the person: (a) Is armed with a burglar's tool as defined in ORS 164.235 or a deadly weapon; or (b) Causes or attempts to cause physical injury to any person; or (c) Uses or threatens to use a dangerous weapon.
18 U.S.C. § 924(e) (2) (B) (ii) states "the term 'violent felony' means any crime ... that ... is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."
Colombi also challenges the district court's determination of the number of prior convictions and raises several constitutional challenges to the ACCA. Because we reverse and remand we need not reach these issues. See United States v. Sherbondy, 865 F.2d 996, 1011 n. 19 (9th Cir. 1988)
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