Unpublished Disposition, 935 F.2d 276 (9th Cir. 1991)

MEMORANDUM^** 

Roger Lewis Ball appeals his sentence, following a guilty plea, for one count of concealing and transporting explosive materials in violation of 18 U.S.C. §§ 842(h) and 844(a). Ball contends that the district court erred by upwardly adjusting his Guidelines offense level for knowingly delivering explosive materials to a recipient "prohibited by state law ... from receiving" the explosives. We have jurisdiction under 28 U.S.C. § 1291 and we vacate the sentence and remand for resentencing.

We review de novo the district court's construction and application of the Sentencing Guidelines. United States v. Carvajal, 905 F.2d 1292, 1295 (9th Cir. 1990).

The base offense level for violations of 18 U.S.C. §§ 842(h) and 844(a) is six. U.S.S.G. Sec. 2K1.3(a). The base offense level must be increased if any of five specific offense characteristics were part of the defendant's offense. U.S.S.G. Sec. 2K1.3(b). If more than one of the specific characteristics applies to a defendant's offense, the sentencing court is directed to "use the greatest" of the five available adjustments. Id. Section 2K1.3(b) (2) provides for a six-level increase in the offense level if the offense involved explosives that the defendant knew were stolen. Section 2K1.3(b) (3) mandates a four-level increase if the defendant knowingly distributed the explosives to a person prohibited by state law or ordinance from receiving them.

Ball pleaded guilty to an offense involving unlawful delivery of stolen explosives to a government informant who was not licensed to receive such explosives under Washington state law. The government contends that the district court properly applied upward adjustments under both section 2K1.3(b) (2) and section 2K1.3(b) (3).¹  Ball concedes the applicability of the six-level adjustment under section 2K1.3(b) (2), but contests the four-level adjustment under section 2K1.3(b) (3), arguing that the informant was not "prohibited" from receiving the explosives under Washington state law because he was acting on behalf of the federal government.

We need not decide this question. Even if both specific offense characteristics were part of Ball's offense, the guideline directs the district court to apply the greatest of the potentially applicable adjustments. " [W]e construe the terms in the Sentencing Guidelines using their plain meaning." United States v. Peoples, 904 F.2d 23, 25 (9th Cir. 1990) (citation omitted). Therefore, we hold that the district court erred by applying upward adjustments to Ball's base offense level under more than one subsection of U.S.S.G. Sec. 2K1.3(b). The parties agree that the six-level adjustment under section 2K1.3(b) (2) was proper; thus, regardless of the applicability of section 2K1.3(b) (3), Ball should not have received the additional four-level adjustment. We vacate the sentence and remand for resentencing in accordance with this disposition.

VACATED AND REMANDED.