United States v. Kevin Falcon

FILED
NOT FOR PUBLICATION JAN 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30028
Plaintiff - Appellee, 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
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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.
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