Opinion
No. 07-12071 Non-Argument Calendar.
July 8, 2008.
William Mallory Kent, Law Office of William Mallory Kent, Jacksonville, FL, George F. Murphy, Valparaiso, FL, for Defendant-Appellant.
Lennard B. Register, III, Randall J. Hensel, U.S. Attorney's Office, Pensacola, FL, E. Bryan Wilson, Tallahassee, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Northern District of Florida. D.C. Docket No. 07-00007-CR-3-LAC.
On Remand from the Supreme Court of the United States.
Before TJOFLAT, ANDERSON and BARKETT, Circuit Judges.
This case is on remand from the United States Supreme Court, Arreguin-Aguilar v. United States, ___ U.S. ___, 128 S.Ct. 2502, 171 L.Ed.2d 784 (2008), which vacated our opinion United States v. Arreguin-Aguilar, 257 Fed.Appx. 152 (11th Cir. 2007) (per curiam). In that opinion, we affirmed the sentencing decision of the United States District Court for the Northern District of Florida to increase Arreguin's base-level offense by 16 levels on the ground that he was deported after being convicted of carrying a concealed weapon, a crime which we determined to be a crime of violence under the United States Sentencing Guidelines. To come to that conclusion, we relied on a line of Eleventh Circuit cases interpreting U.S.S.G. § 4B1.1. See United States v. Gilbert, 138 F.3d 1371, 1372 (11th Cir. 1998); United States v. Williams, 435 F.3d 1350, 1354 (11th Cir. 2006). That section defines a crime of violence one way. Arreguin, however, was sentenced under U.S.S.G. § 2L1.2(b)(1)(A)(ii), which defines a crime of violence in slightly different terms.
When Arreguin petitioned the Supreme Court for a writ of certiorari, the Solicitor General filed a brief arguing that § 2L1.2(b)(1)(A)(ii) differs materially from § 4B1.1, and that the district court's decision to increase the base level of his offense by 16 levels was therefore a plain error. The Supreme Court vacated our judgment affirming the district court and remanded the case "for consideration in light of the position asserted by the Solicitor Generalin his brief for the United States filed April 21, 2008." Arreguin-Aguilar v. United States, ___ U.S. ___, 128 S.Ct. 2502, 171 L.Ed.2d 784 (2008).
On June 5, 2008, Arreguin moved for expedited review of the issue because, if the Solicitor General is correct, he may be due for release in a matter of days.
We therefore GRANT his motion for expedited review, VACATE the district court's judgment, and REMAND for further consideration in light of the Solicitor General's brief.