                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                        September 13, 2005
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-1047
          v.                                            (D. Colorado)
 LONNIE LEE TUNCAP,                              (D.C. No. 04-CR-121-WM)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      Defendant Lonnie Lee Tuncap pleaded guilty to unlawful possession of a

firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). The Presentence Report

(PSR) recommended a base offense level of 24, see United States Sentencing

Guidelines (USSG) § 2K2.1(a)(2), because it concluded that Mr. Tuncap’s two

prior Colorado convictions for third-degree assault were crimes of violence, see


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
USSG § 4B1.2. After the adjustment for acceptance of responsibility, see USSG

§ 3E1.1, Mr. Tuncap’s total offense level of 21 and criminal history category V

yielded a guidelines range of 70 to 87 months.

      Mr. Tuncap filed a motion objecting to the PSR’s recommendations on the

grounds that the prior Colorado convictions for third-degree assault were not

crimes of violence and that using the prior convictions to enhance his sentence

violated Blakely v. Washington, 542 U.S. 296 (2004). He also filed a motion for

downward departure, arguing that using the two prior Colorado convictions to

enhance his sentence took his case out of the heartland of § 2K2.1.

      At the sentencing hearing the district court overruled Mr. Tuncap’s

objections and denied the motion for downward departure. The court, at the

behest of both Mr. Tuncap and the government, and noting that it was

“constrained by the law,” sentenced Mr. Tuncap to the 70-month guidelines

minimum. R. Vol. II at 13.

      On January 12, 2005, five days after the January 7, 2005, sentencing

hearing, the Supreme Court handed down United States v. Booker, 543 U.S. __,

125 S.Ct. 738 (2005). That same day, Mr. Tuncap filed a motion to correct the

sentence. See Fed. R. Crim. P. 35(a). He filed his notice of appeal on January

19, 2005. On April 1, 2005, the district court held a hearing on Mr. Tuncap’s

motion and concluded that it did not have jurisdiction because Fed. R. Crim. P. 35


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allowed for correction of sentence only within seven days of sentencing, a period

long past.

      On appeal Mr. Tuncap argues that the district court erred when it found that

his two prior Colorado convictions for third-degree assault were crimes of

violence. He also asserts that his case must be remanded for resentencing because

there was error under Booker and the error was not harmless. The government

argues that the district court properly concluded that the Colorado convictions

were crimes of violence, but it concedes that United States v. Labistida-Segura,

396 F.3d 1140 (10th Cir. 2005), requires Mr. Tuncap’s case to be remanded for

resentencing.

      We agree that Labistida controls, and we REMAND to the district court for

resentencing. The question whether third-degree assault is a crime of violence

was resolved in United States v. Paxton, 04-1427 (10th Cir. Sept. 9, 2005).

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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