USA v. Kinder, No. 07-30356 (9th Cir. 2010)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS NOV 10 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 07-30356 D.C. No. 1:07-cr-00019-RFC v. MEMORANDUM * GEOFFREY VON KINDER, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Richard F. Cebull, District Court Judge, Presiding Argued and Submitted October 4, 2010 Seattle, Washington Before: THOMAS and M. SMITH, Circuit Judges, and EZRA, District Judge.** Geoffrey Von Kinder appeals his sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Kinder argues on appeal that the district court erred in determining under the modified categorical approach that his * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable David Alan Ezra, United States District Judge for the District of Hawaii, sitting by designation. prior conviction for burglary of a cabin was a crime of violence supporting a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A). Specifically, Kinder contests the district court s conclusion that the cabin burglarized was a dwelling as defined by U.S.S.G. § 4B1.2(a)(2). We conclude that the Information and Sentencing Order from Kinder s prior conviction for burglary were sufficient for a finding under the modified categorical approach that the structure burglarized was a dwelling. United States v. Bonat, 106 F.3d 1472, 1476 (9th Cir. 1997) ( We have previously decided that in determining if a defendant pled guilty to generic burglary, considering the indictment and the judgment of conviction does not constitute a factual inquiry forbidden by Taylor [v. United States, 495 U.S. 575 (1990)]. (citing United States v. O Neal, 937 F.2d 1369, 1373 (9th Cir. 1991), superseded by statute on other grounds as recognized in United States v. Huffhines, 967 F.2d 314, 321 (9th Cir. 1992))). Accordingly, Kinder s past conviction qualified as a crime of violence under U.S.S.G. § 2K2.1(a)(4)(A), and the district court did not err in applying a base offense level of 20 to Kinder s sentence. AFFIRMED. 2
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