                                                                                   FILED
                                                                       United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                           Tenth Circuit

                            FOR THE TENTH CIRCUIT                          December 11, 2018
                        _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 18-6028
                                                    (D.C. Nos. 5:17-CV-00072-R and
 LUIS ENRIQUE RODRIGUEZ-                                  5:15-CR-00078-R-1)
 ARROYO,                                                      (W.D. Okla.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MATHESON, MURPHY, and CARSON, Circuit Judges.
                 _________________________________

      On November 26, 2018, this court granted a certificate of appealability on

Appellant’s claim that his trial counsel was ineffective for failing to object to the

enhancement of his sentence based on his prior Oklahoma second-degree burglary

convictions. The court ordered the United States to file a response brief by December

26, 2018. In response, on December 7, 2018, the government filed an unopposed




      *
        In light of this decision, the oral argument scheduled for January 24, 2019 in
Denver, Colorado is vacated, and all counsel scheduled to appear are excused from
attending. This matter is submitted on the briefs. Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under
the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
Motion to Remand to the district court for additional proceedings as to whether

Oklahoma second-degree burglary is a crime of a violence.

      Upon consideration, the Motion is granted. This appeal is dismissed, and this

matter is remanded with instructions to the district court to vacate its judgment dated

December 19, 2017 and conduct additional proceedings consistent with the

government’s Motion for Remand filed on December 7, 2018 as well as any other

proceedings the district court deems appropriate in its discretion.

      The Clerk is directed to issue the mandate forthwith.


                                            Entered for the Court
                                            Per Curiam




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