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

                             FOR THE TENTH CIRCUIT                            January 30, 2018
                         _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 17-2047
                                                    (D.C. No. 2:13-CR-02459-RB-1)
CHRISTOPHER ANDRES AGUIRRE,                                    (D. N.M.)
a/k/a CHRIS RODRIGUEZ,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MATHESON, McKAY, and EBEL, Circuit Judges.
                 _________________________________

       Defendant-Appellant Christopher Andres Aguirre pled guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possessing a firearm

with an obliterated serial number, in violation of 18 U.S.C. § 922(k). The district court

based Mr. Aguirre’s 110-month sentence in part on determining that Mr. Aguirre’s prior

New Mexico conviction for conspiracy to commit armed robbery qualified as a crime of

violence under United States Sentencing Guideline § 4B1.2(a).


       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Mr. Aguirre argues this determination was erroneous under this court’s decision in

United States v. Martinez Cruz, 

(10th Cir. 2016). The Government agrees

and posits that “[t]his Court should reverse Aguirre’s sentence and remand for

resentencing.” Aplee. Br. at 6. We concur with the parties’ analysis of this issue.

       In his reply brief, Mr. Aguirre agrees with the Government that this court need not

review an argument that he raised in his opening brief—that his prior conviction for

making a threat in violation of 18 U.S.C. § 115(a)(1)(A) is a crime of violence,

explaining that he would have the opportunity to present that argument at resentencing on

remand. Reply Br. at 1.

       For the foregoing reasons, we vacate Mr. Aguirre’s sentence and remand for

resentencing. The mandate shall issue forthwith.


                                             Entered for the Court


                                             Scott M. Matheson, Jr.
                                             Circuit Judge




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