USA V. KEVIN FALCON, No. 13-30028 (9th Cir. 2014)

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FILED JAN 27 2014 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 13-30028 D.C. 4:09 cr-0118- SEH v. MEMORANDUM* KEVIN FALCON, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding Argued and Submitted December 12, 2013 San Francisco, California Before: REINHARDT, TASHIMA, and MURGUIA, Circuit Judges. For the third time, Defendant Kevin Falcon appeals the sentencing court s imposition of a 110-month sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). For the third time, we vacate this sentence and remand for resentencing. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. We review de novo whether a conviction constitutes a crime of violence. United States v. Acosta-Chavez, 727 F.3d 903, 907 (9th Cir. 2013). When a party challenges the substantive reasonableness of a sentence on appeal, we review the sentence for procedural error even when no claim of procedural error is raised. United States v. Evans-Martinez, 611 F.3d 635, 639 (9th Cir. 2010). We review unpreserved procedural errors for error, that is plain, that affects substantial rights, and that seriously affects the integrity of the judicial proceeding. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc). 1. The sentencing court erred in calculating Falcon s base offense level under U.S.S.G. § 2K2.1(a)(4)(A) (2012). Falcon s statute of conviction, Wash. Rev. Code § 26.50.110(4), is categorically overbroad. United States v. Pimentel-Flores, 339 F.3d 959, 969 (9th Cir. 2003). Even if the statute were divisible, Falcon was not convicted of the version of the crime that would qualify as a crime of violence under the modified categorical approach. Thus, under Descamps v. United States, 133 S. Ct. 2276 (2013), Falcon s base offense level is 14 and not 20. See U.S.S.G. § 2K2.1(a)(6). A base offense level of 14 must be applied in this case. 2. The sentencing court plainly erred in enhancing Falcon s specific offense characteristics under U.S.S.G. § 2K2.1(b)(6)(B) based on Falcon s 2 possession of a firearm in connection with the sale of a stolen firearm. Under United States v. Valenzuela, 495 F.3d 1127 (9th Cir. 2007), sale of a stolen firearm is a firearms trafficking or possession offense that cannot be used as a basis for the enhancement. Id. at 1134. The parties agree that Valenzuela s holding is unaffected by the Sentencing Commission s amendment to the commentary in U.S.S.G. app. C amend. 691 (Supp. 2006). Accepting that agreement for purposes of this case, we must hold that the sentencing court erred in its application of U.S.S.G. § 2K2.1(b)(6)(B), and that its error was plain and affected substantial rights and the very integrity of the judicial proceeding. See United States v. Armstead, 552 F.3d 769, 785 (9th Cir. 2008). This 4 level enhancement cannot be applied in this case. 3. Because there have already been three opportunities for a full inquiry into the factual question at issue, we need not remand again on an open record to allow the sentencing court to fully consider the relevant factual issue. United States v. Matthews, 278 F.3d 880, 886, 888 (9th Cir. 2002) (en banc). We therefore remand for resentencing on the existing record. See United States v. Espinoza-Morales, 621 F.3d 1141, 1152 (9th Cir. 2010). This panel retains jurisdiction over any future appeal. VACATED and REMANDED. 3

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