                    UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
       v.                                               No. 04-1541
 SHANNON FORSYTHE,

              Defendant-Appellant.


                                     ORDER
                              Filed February 15, 2006


      Appellant’s motion to publish the order and judgment filed December 23,

2005, is granted. The opinion is hereby filed as amended by the court, and is

attached to this order.


                                      Entered for the Court
                                      Elisabeth A. Shumaker, Clerk of Court


                                      By:
                                            Amy Frazier
                                            Deputy Clerk
                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                                      PUBLISH
                                                                     December 23, 2005
                    UNITED STATES COURT OF APPEALS
                                                                       Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
          v.                                           No. 04-1541
 SHANNON FORSYTHE,

               Defendant-Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                      (D.C. NO. 04-CR-00252-WDM)


Submitted on the brief: *

Edward A. Pluss, Assistant Federal Public Defender, (Raymond P. Moore, Federal
Public Defender, with him on the brief), Denver, Colorado, for Defendant-
Appellant.


Before HARTZ, SEYMOUR, and McCONNELL, Circuit Judges.


McCONNELL, Circuit Judge.




      *
              After examining the briefs and appellate record, this panel has
determined unanimously to honor the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case
is therefore submitted without oral argument.
      Shannon Forsythe pleaded guilty in 2004 to possession of a weapon by a

previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). Seven years

earlier, he had entered a plea of guilty to third-degree burglary under New Jersey

law. During sentencing on the 2004 possession charge, a question arose as to

whether his prior conviction was for burglary of a dwelling, and therefore

constituted a “crime of violence,” as defined in § 4B1.2(a) of the United States

Sentencing Guidelines. Relying on a preliminary complaint, the government

asserted that Mr. Forsythe had burglarized a residence and therefore should be

subjected to the higher guidelines range. The district court accepted the

government’s argument and sentenced Mr. Forsythe to 51 months’ imprisonment.

Mr. Forsythe appeals. We REVERSE and REMAND to the district court with

instructions to vacate his sentence and impose a new sentence in accordance with

this opinion.

                                  I. Background

      During the 2004 plea negotiations, Mr. Forsythe acknowledged his prior

burglary conviction, but informed the prosecutor that he did not believe that it

constituted a “crime of violence” because it did not involve the burglary of a

dwelling. The parties negotiated a plea agreement contemplating a guideline base

offense level of 14, the offense level for firearms defendants who have no prior

convictions for crimes of violence. See U.S.S.G. 2K2.1(6). However, the


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Presentence Investigation Report (“PSR”) prepared after Mr. Forsythe entered his

guilty plea indicated that his prior burglary conviction involved a dwelling, and

therefore qualified as a crime of violence. This change in classification raised his

base offense level from 14 to 20. Mr. Forsythe filed a written objection, arguing

that his prior conviction was not a crime of violence because both the New Jersey

statute and the charging documents were ambiguous as to whether the burglary

was of a dwelling. The government acknowledged that the statute covered

burglaries of both dwellings and non-dwellings, but argued that the Accusation

and preliminary complaint established that the burglary was of a dwelling. The

PSR also indicated that Mr. Forsythe qualified for a three-point reduction for

acceptance of responsibility.

      The district court held an initial sentencing hearing on November 23, 2004,

at which it considered whether the 1997 conviction constituted a crime of

violence. At the hearing, the government stated that if the district court found

that the prior burglary conviction was a crime of violence, it would not file a

motion requesting an additional one-level reduction for acceptance of

responsibility. The government explained that it would not seek the additional

reduction because by failing to disclose during plea negotiations that the burglary

was of a dwelling, Mr. Forsythe had failed to ensure “the certainty of his just

punishment in a timely manner.” The court deferred ruling on the acceptance of


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responsibility issue, but determined that Mr. Forsythe’s prior burglary conviction

involved a dwelling. In reaching that conclusion, the district court found that

both the statute and the Accusation were ambiguous, but that the preliminary

complaint, which stated that the burglary was of a residence, qualified as a

charging document. Accordingly, the district court determined that Mr.

Forsythe’s base offense level was 20 and granted a continuance to address the

additional one-point reduction for acceptance of responsibility.

      The district court held a second sentencing hearing on December 9, 2004.

At this hearing, Mr. Forsythe argued, among other things, that the government’s

denial of the third acceptance of responsibility point violated his Fifth

Amendment right against self-incrimination. After requesting additional briefing

on the Fifth Amendment issue, the district court held a final sentencing hearing at

which it found that the Fifth Amendment was not implicated by attaching

consequences to Mr. Forsythe’s apparent misrepresentation. The district court

further held that it could not authorize an additional reduction for acceptance of

responsibility because the decision to make a reduction is left to the government.

Finding that Mr. Forsythe’s offense level was 18 after a two-level reduction for

acceptance of responsibility, the district court sentenced him to 51 months’

imprisonment. Mr. Forsythe now appeals his sentence.

                                   II. Discussion


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      Mr. Forsythe raises three claims on appeal. First, he claims that the district

court erred in relying upon a preliminary complaint, containing allegations that he

did not admit, to determine that his 1997 burglary conviction was of a dwelling,

and therefore a crime of violence. Next, he claims that the district court erred in

holding that it was precluded from awarding a third point reduction for

acceptance of responsibility. Finally, he argues that, in light of United States v.

Booker, 543 U.S. 220 (2005), the district court plainly erred in holding that the

guideline provision requiring a government motion to award an additional point

for acceptance of responsibility was mandatory.

      The government has properly conceded that the district court erred in

relying upon a preliminary complaint to classify Mr. Forsythe’s prior burglary

conviction as a crime of violence. To determine whether a prior conviction

constitutes a crime of violence, we must use a “categorical approach,” in which

we look “only to the fact of conviction and the statutory definition of the prior

offense.” Taylor v. United States, 495 U.S. 575, 602 (1990). If the statute’s

language “is ambiguous or broad enough to encompass both violent and

nonviolent crimes, a court may look beyond the statute to certain records of the

prior proceeding, such as the charging documents, the judgment, any plea thereto,

and findings by the court.” United States v. Vigil, 334 F.3d 1215, 1217 (10th Cir.

2003). Although charging documents may be relevant in determining whether a


                                          -5-
prior conviction was a crime of violence, “[t]he conduct of which the defendant

was convicted [not charged] is the focus of the inquiry.” United States v. Bennett,

108 F.3d 1315, 1317-18 (10th Cir. 1997) (emphasis and addition in original)

(quoting U.S.S.G. Manual § 4B1.2, cmt. (n.2)). Thus, a district court may rely on

a charging document only if the crime charged was the same crime for which the

defendant was convicted. See also Shepard v. United States, 125 S. Ct. 1254,

1260-61 (2005) (finding that facts contained in a police report may not be

considered to determine whether the elements of generic burglary are satisfied

because they are not “records of the convicting court approaching the certainty of

the record of conviction”).

      The New Jersey statute under which Mr. Forsythe pleaded guilty in 1997

provides:

      A person is guilty of burglary if, with purpose to commit an offense
      therein he:
      (1) Enters a research facility, structure, or a separately secured or
      occupied portion thereof unless the structure was at the time open to
      the public or the actor is licensed or privileged to enter; or
      (2) Surreptitiously remains in a research facility, structure, or a
      separately secured or occupied portion thereof knowing that he is not
      licensed or privileged to do so.

N.J.S.A. § 2C: 18-2. “Structure” is defined as “any building, room, ship, vessel,

car, vehicle or airplane, and also means any place adapted for overnight

accommodation of persons, or for carrying on business therein, whether or not a

person is actually present.” Id. at 18-1. The New Jersey statute encompasses

                                        -6-
burglaries of both dwellings and non-dwellings, and is therefore broad enough to

encompass both violent and non-violent crimes. Neither the accusation nor the

judgment clarifies whether Mr. Forsythe’s prior conviction was for burglary of a

dwelling. The only document that charges Mr. Forsythe with burglarizing a

dwelling is the preliminary complaint, completed by a police officer. However,

there is nothing in the record to indicate that Mr. Forsythe was convicted of the

crime charged in the preliminary complaint. As the government concedes, there is

no explanation why the formal charging document, to which Mr. Forsythe pleaded

guilty, omitted that the burglary occurred at a dwelling. Without such

information, the district court improperly considered the preliminary complaint to

find that Mr. Forsythe’s prior conviction was for a crime of violence.

Accordingly, we reverse and remand for resentencing.

      The government requests that we remand for de novo resentencing so that it

can provide new evidence to demonstrate that Mr. Forsythe’s prior burglary

conviction was a crime of violence. Although a remand for resentencing

generally allows the district court to conduct de novo review, see United States v.

Keifer, 198 F.3d 798, 801 (10th Cir. 1999), we exercise our discretion under 18

U.S.C. § 3742(f)(1) and limit our remand to the record as it now stands. See

United States v. Campbell, 372 F.3d 1179, 1183 (10th Cir. 2004). As this Court

stated in Campbell:


                                         -7-
      Under well-established Tenth Circuit precedent, the government has
      the burden of proving sentence enhancements and increases. The
      government failed to meet its burden of proof on [a] clearly
      established element [required for the enhancement], and we decline
      to give it a second bite at the apple. Although Defendant alerted the
      government to the deficiency in its evidence, the government did not
      seek to cure the deficiency . . . . Our reversal and remand for
      resentencing here does not invite an open season for the government
      to make the record that it failed to make in the first instance.

Id. (internal quotation marks and citations omitted). The facts and reasoning in

Campbell are applicable here and we exercise our discretion similarly.

      Because we are remanding for resentencing, there is no reason to consider

Mr. Forsythe’s remaining two claims concerning the district court’s failure to

award a third-point reduction for acceptance of responsibility.

                                 III. Conclusion

      Accordingly, the sentence imposed by the United States District Court for

the District of Colorado is REVERSED and the case is partially REMANDED for

resentencing based on the record as it stands.




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