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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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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