United States v. Schley , 73 F. App'x 299 ( 2003 )

MEMORANDUM^**

Matthew Ray Douglas Schley appeals his 65-month sentence imposed after he pleaded guilty to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 18 U.S.C. § 3742. We review de novo, United States v. Gallaher, 275 F.3d 784, 790 (9th Cir.2001), and we vacate the sentence and remand for re-sentencing.

Schley contends that the district court erred by concluding that his prior Washington state conviction for possession of an explosive device qualified as a crime of violence under U.S.S.G. § 4B1.2(a)(2) and thus enhanced his sentence. We agree.

Because whether an offense is a crime of violence must be determined by the statutory definition of the prior conviction, or by “those facts charged in the count of the indictment or information for which the defendant was convicted,” Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); United States v. Young, 990 F.2d 469, 472 (9th Cir.1993), we vacate and remand to allow the district court to evaluate Schley’s Washington state conviction and to thereafter re-sentence Schley.

VACATED AND REMANDED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.