United States of America, Plaintiff-appellee, v. Dwight Bernard Fite, Defendant-appellant, 990 F.2d 1262 (9th Cir. 1993)

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U.S. Court of Appeals for the Ninth Circuit - 990 F.2d 1262 (9th Cir. 1993)

Submitted April 6, 1993. Decided April 8, 1993


Before HALL, WIGGINSD and TROTT, Circuit Judges.


MEMORANDUM* 

Dwight B. Fite appeals his 188-month sentence as an armed career criminal under section 4B1.4 of the United States Sentencing Guidelines, pursuant to 18 U.S.C. § 924(e), following his jury conviction of felon in possession of a firearm, a violation of 18 U.S.C. § 922(g) (1). We affirm.

Fite contends that the district court improperly sentenced him under Sentencing Guideline section 4B1.4 because being a felon in possession of a firearm is not a "crime of violence" for purposes of applying the career offender guideline. Fite is correct that the offense of unlawful possession of a firearm by a felon is not a "crime of violence" within the meaning of the career offender guideline, section 4B1.1 of the Sentencing Guidelines. See U.S.S.G. § 4B1.2(1) & comment. (n. 2) (Nov. 1991); United States v. Sahakian, 965 F.2d 740, 742 (9th Cir. 1992).1  Fite, however was not sentenced under guidelines 4B1.1; nor could he have been, because "the instant offense of conviction," possession of a firearm, is not a "crime of violence." See U.S.S.G. § 4B1.1.

Instead, Fite was sentenced as an armed career criminal under guideline 4B1.4 because he is "subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e)." U.S.S.G. § 4B1.4(a). He is subject to sentence enhancement under section 924(e) because the instant offense of conviction is a violation of 18 U.S.C. § 922(g) and he has at least three prior convictions for violent felonies committed on different occasions. 18 U.S.C. § 924(e) (1) (1988). None of those prior convictions were for possession of a firearm; all are for undeniably violent felonies: assault with a deadly weapon, battery on a peace officer, voluntary manslaughter, involuntary manslaughter, sodomy by force, and robbery. See id. § 924(e) (2) (B). It is thus irrelevant for purposes of this appeal whether or not a prior conviction for unlawful possession of a firearm could constitute a conviction for a "violent felony" within the meaning of section 924(e) and guideline 4B1.4. See U.S.S.G. § 4B1.4 comment (n. 1) (definitions of "crime of violence" and "violent felony" are not identical).

The sentence is AFFIRMED.

 *

This panel unanimously agrees that this case is appropriate for submission without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

David Sahakian was erroneously sentenced under section 4B1.1 because his offense of conviction, felon in possession of a firearm, was not a "crime of violence." Sahakian, like Fite, was convicted of a violation of 18 U.S.C. § 922(g) (1) and was subject to sentence enhancement under 18 U.S.C. § 924(e). 965 F.2d at 741. The court did not hold that sentence enhancement was improper; only that § 4B1.1 was not the proper guideline. Guideline 4B1.4 was not in effect at the time Sahakian was sentenced, as it was added effective November 1, 1990