133175P.pdf   06/30/2014  United States  v.  Aldo Martinez
   U.S. Court of Appeals Case No:  13-3175
   U.S. District Court for the Southern District of Iowa - Des Moines   
   [PUBLISHED] [Chief Judge Riley, Author, with Beam and Smith, Circuit 
   Judges] 
   Criminal Case - Sentence. District court's determination through use of 
   the modified categorical approach that prior state conviction for 
   solicitation to commit misconduct involving weapons qualifies as a 
   firearms offense under U.S.S.G. 2L1.2(b)(1)(A)(iii) is reversed. The 
   Arizona statute at issue was textually divisible between qualifying and 
   nonqualifying convictions but Martinez did not plead guilty to, nor was 
   convicted of, a violation of a qualifying subsection of the statute; he 
   was convicted of an "amended"charge and the judgment of conviction and 
   plea agreement did not specify the statutory subsection. The modified 
   categorical approach does not permit the sentencing court to look at an 
   indictment to discover what the defendant actually did. The elements-based 
   approach prohibits reliance on the forfeiture of the weapon as part of the 
   plea agreement as evidence of possession because he was not convicted of 
   possession. The sentence is vacated and the case remanded for 
   resentencing.