District court erred in determination that prior state conviction for third-degree burglary was conviction for crime of violence

SENTENCING United States v. Forsythe, No. 04-1541, ___ F.3d ___ (10th Cir. Dec. 23, 2005)(Colorado)(ordered published Feb. 15, 2006). Appeal of sentence for possession of firearm by previously convicted felon in violation of 18 U.S.C. § 922(g)(1). HELD: Where New Jersey burglary statute encompassed both dwellings and non-dwellings, district court improperly relied on preliminary complaint rather than formal charging document to find that defendant’s prior New Jersey conviction for third-degree burglary was for burglary of dwelling. Thus, district court erred in its determination that defendant had prior conviction for crime of violence (i.e., burglary of dwelling) for sentencing purposes under U.S.S.G. § 4B1.2(a). Read the opinion here.