## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 05-1987

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Horacio Parra-Moraza, also known as * Shady, * [UNPUBLISHED]
* Appellant. *

___________ Submitted: May 5, 2006 Filed: May 11, 2006

___________ Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.

___________ PER CURIAM. Horacio Parra-Moraza pleaded guilty to conspiring to distribute and possess with intent to distribute more than 50 grams of actual methamphetamine, aiding and abetting the distribution of more than 50 grams of actual methamphetamine, and aiding and abetting the distribution of morethan 5 grams of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) & (B), 846, and 18 U.S.C. § 2. Parra-Moraza appeals his sentence arguing that (1) it was error for the district court to treat his California second-degree burglary convictions as crimes of violence which triggered the career-offender enhancement; (2) the district c ourt violated the principles in United States v. Booker , 543 U.S. 220 (2005), by holding him responsible for a1 Under 18 U.S.C. § 924(e)(2)(B)(ii) the defi nition of “violent felony” includes any felony that is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Under the career-offender Guide line, a “crime of violence” similarly includes any crime that is “burglary of a dw elling, arson, or extortion, involves use of explosives, or otherwise involves conduct th at presents a serious potential risk of physical injury to another.” See U.S.S.G. § 4B1.2(a)(2). Th e parties agree that ParraMoraza’s offense does not constitute generic burglary.
-2- drug quantity larger than that to which hehad pleaded guilty; and (3) his sentence is unreasonable.

Because the district court tr eated the Guidelines as advisory, it did not commit Bookererror by making a drug-quantity finding, see Booker , 543 U.S. at 233, 244-46, 258-60, and the court’s finding was amply supported by evidence presented at the sentencing hearing, seeUnited States v. Allen , 440 F.3d 449, 452 (8th Cir. 2006) (standard of review).

We find, however, that the district court erred in conc luding that ParraMoraza’s two second-degree burglary convictions were crimes of violence for purposes of the career-offe nder Guideline. See U.S.S.G. §§ 4B1.1, 4B1.2; United States v. Lindquist , 421 F.3d 751, 753 (8th Cir. 2005) (s tandard of review). ParraMoraza was convicted under Cal. Penal C ode §§ 459 (defining burglary) and 460(b) (defining second-degree burglary) (2006), wh ich criminalize the breaking into and entering of such things as sealed cargo cont ainers and vehicles. We therefore look to the charging papers introduced at sentencing. These papers alleged that Parra-Moraza had entered another pe rson’s locked vehicle to commit th eft, which we have held does not involve a substantia l risk of physical inju ry to another. See United States v. Livingston , 442 F.3d 1082, 1084-87 (8th Cir. 2006) (where burglary statute criminalizes various types of conduct, c ourt looks at charging papers to decide whether burglary was violent felony within meaning of “otherwise involves” provision of Armed Career Criminal Act (ACCA) 1 ; breaking and entering vehicle-3- charged in indictment is not violent felony); United States v. Abernathy , 277 F.3d 1048, 1051 (8th Cir.) (noting ACCA and Guid elines define crime of violence and violent felony in identical terms), cert. denied , 535 U.S. 1089 (2002); cf. Sareang Ye v. INS , 214 F.3d 1128, 1133-34 (9th Cir. 2000) ( California conviction for entering locked vehicle with intent to steal was not “crime of violence” under 18 U.S.C. § 16, because it was not offense that by its natu re, involved substantial risk that physical force against person or property of another might be used in committing offense).

Accordingly, we remand for resentencing consistent with this opinion, and thus we do not address Parra-Moraza’s final ar gument that his sentence was unreasonable.

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