IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-10528 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CURTIS LEE GREEN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas (4:01-CR-187-1-A) -------------------- January 23, 2003

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Curtis Lee Green appeals his sentence for

being a felon in possession of a firearm, in violation of

(g)(1) and 924(a)(2). He contends that because his

unauthorized use of a motor vehicle during one of two burglaries

was not a crime of violence, United States v. Charles,

(5th Cir. 2002) (en banc), the district court erred in relying on

his unauthorized use of the vehicle to enhance his sentence under

U.S.S.G. § 4B1.4(c).

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Green was charged with two counts of stealing firearms from a

federal firearms licensee (counts one and two) and two counts of

being a felon in possession of a firearm (counts three and four).

He pleaded guilty only to count three.

The burglaries charged in counts one and two occurred on

August 17, 2001, and September 3, 2001, respectively. Count three

charged Green with being a felon in possession of a firearm only on

August 17, 2001, the date of the first burglary; but, the

unauthorized use of a motor vehicle, on which the district court

relied in sentencing Green as a career criminal under U.S.S.G.

§ 4B1.4(c), occurred on September 3, 2001 in connection with the

second burglary.

The government concedes that the district court erred in using

Green’s subsequent unauthorized use of a motor vehicle on September

3, 2001, to enhance his sentence for an earlier offense of

conviction committed on August 17, 2001. Whether Green’s

unauthorized use of a motor vehicle was a crime of violence is

therefore irrelevant. The government argues, nevertheless, that

the August 17, 2001, burglary and theft of firearms qualifies as an

alternative crime of violence, so that Green’s sentencing as a

career criminal under § 4B1.4(c) was not plain error. There is

nothing in the record to indicate, however, that anyone was inside

the pawn shop when Green burglarized it, or that anyone outside the

shop was near the premises. Thus, there could not be a “use,

attempted use, or threatened use of physical force against the

2 person of another,” as required by § 4B1.2(a)(1). Whether the

burglary involved “conduct that present[ed] a serious potential

risk of physical injury to another” when the record indicates there

were no others in the shop or on the premises is not clear. We

therefore vacate Green’s sentence and remand for resentencing

consistent with United States v. Charles,

(5th Cir.

2002) (en banc).

We deny Green’s request that the Federal Public Defender be

allowed to withdraw, or, in the alternative, that he (Green) be

allowed to file a supplemental brief.

AFFIRMED IN PART; VACATED IN PART and REMANDED FOR RESENTENCING;

MOTION DENIED.

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