Attempted Burglary is a COV under 4B1.2, But Not An ACCA Violent Felony

US v. Martinez, -- F.3d --, 2010 WL 1530673 (10th Cir. 4/19/10) - Arizona offense of attempted second-degree burglary is a crime of violence, but not a violent felony under the ACCA. The crime of second-degree burglary is defined as "entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein." The attempt statute covers "any step in a course of conduct planned to culminate in commission of the offense." The court based its conclusion that Arizona attempted burglary is not a violent felony on its prior decision in US v. Fell, 511 F.3d 1035 (10th Cir. 2007), which noted that an attempted burglary conviction may be based on conduct such as making a duplicate key, casing a targeted building, obtaining floor plans, or possessing burglary tools. However, the commentary to USSG § 4B1.2 states that a "crime of violence" includes "attempt" offenses.