United States v. Abrego, No. 20-40118 (5th Cir. 2021)
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The Fifth Circuit vacated defendant's sentence for making false statements and representations regarding firearm records. USSG 2K2.1(a)(4)(B) provides for a base offense level of 20 if, inter alia, the offense involved a semiautomatic firearm that is capable of accepting a large capacity magazine. In United States v. Longoria, 958 F.3d 372, 377 (5th Cir. 2020), the court held that the commentary to the Guidelines, which further defines what it means for a firearm to be capable of accepting a large capacity magazine, is authoritative and must be enforced.
In this case, after Longoria was decided, the district court applied section 2K2.1(a)(4)(B), but not the accompanying commentary. Nor did the presentence report indicate that a magazine capable of holding over fifteen rounds of ammunition was either attached to or in close proximity to the firearm in question—let alone bear sufficient indicia of reliability to be considered as evidence during sentencing—as required under the commentary. Accordingly, the court remanded for resentencing consistent with both the Sentencing Guidelines and the accompanying commentary.
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