UNITED STATES COURT OF APPEALS August 13, 2024

FOR THE TENTH CIRCUIT Christopher M. Wolpert Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-6073

JULIAN MANZANO, a/k/a Julian Manzano, Jr., a/k/a Ju Man,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:22-CR-00176-JD-1) _________________________________

Kyle E. Wackenheim, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

Steven W. Creager, Assistant United States Attorney, Danielle M. Connolly, Assistant United States Attorney (Robert J. Troester, United States Attorney, with them on the brief), Office of the United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee. _________________________________

Before HOLMES, Chief Judge, and SEYMOUR, and BALDOCK, Circuit Judges. _________________________________

SEYMOUR, Circuit Judge. _________________________________

Mr. Julian Manzano pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). During sentencing, the district court ruled that Mr. Appellate Case: 23-6073 Document: 010111093863 Date Filed: 08/13/2024 Page: 2

Manzano’s prior Oklahoma conviction for second-degree murder qualified as a “crime of

violence” under § 4B1.2(a)(2) of the United States Sentencing Guidelines (“U.S.S.G.”)

and, accordingly, applied a higher base offense level. On appeal, Mr. Manzano challenges

that ruling. Because Oklahoma second-degree murder does not categorically match generic

“murder” under the Guidelines, we reverse.

I.

Just twenty-five days free after serving thirteen years in prison, on March 26, 2022,

Mr. Manzano was pulled over by Oklahoma City police while driving. After approaching

the vehicle, officers observed smoke and smelled the odor of burnt marijuana inside Mr.

Manzano’s car and they requested that he exit the vehicle. Mr. Manzano initially refused

but complied when backup officers subsequently arrived. Officers searched the vehicle and

discovered a .45 caliber pistol and ammunition. Mr. Manzano admitted that the pistol was

his and that he had owned it for approximately four months.

Because of a prior 2009 conviction for Oklahoma second-degree murder, Mr.

Manzano was indicted for, and pled guilty to, one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1).1 In anticipation of sentencing, the United

States Probation Office prepared a Presentence Investigation Report (“PSR”) to calculate

Mr. Manzano’s advisory guideline range. The PSR classified Mr. Manzano’s prior

1 Section 922(g)(1) prohibits “any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(1).

2 Appellate Case: 23-6073 Document: 010111093863 Date Filed: 08/13/2024 Page: 3

Oklahoma second-degree murder conviction as a “crime of violence” under U.S.S.G.

§ 2K2.1(a)(4)(A) and, accordingly, recommended a base offense level of 20. See U.S.S.G.

§ 2K2.1(a)(4)(A) (raising a defendant’s base offense level from 12 to 20 if “the defendant

committed