                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           APR 24 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-30217

              Plaintiff-Appellee,                D.C. No. 2:14-cr-00173-EJL-1

 v.                                              ORDER and
                                                 MEMORANDUM*
JESSE CAREY BARKER,

              Defendant-Appellant.


                  Appeal from the United States District Court
                            for the District of Idaho
                 Wm. Fremming Nielsen, District Judge, Presiding

                     Argued and Submitted October 3, 2016
                  Withdrawn from Submission October 13, 2016
                          Resubmitted April 24, 2017
                              Seattle, Washington

Before: W. FLETCHER, GOULD, and N.R. SMITH, Circuit Judges.

      Defendant-Appellant Jesse Carey Barker pleaded guilty on March 31, 2015,

to one count of unlawful possession of firearms and ammunition pursuant to 18

U.S.C. §§ 922(g)(1) and 924(a)(2). The initial Presentence Investigation Report for



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the 2015 conviction recommended a Base Offense Level of 20. The government

objected, arguing that the “Base Offense Level should be a level 24 because the

defendant has convictions for both a crime of violence and a controlled substance

offense.” Barker had been previously convicted of two other felonies. First, in

2004, he was convicted in Iowa District Court for conspiracy to manufacture a

controlled substance. Second, in 2010, he was convicted in Wyoming of

possession of a Molotov cocktail destructive device. Barker contended, “Standing

alone, [U.S.S.G.] § 4B1.2(a) does not establish that Barker’s conviction constitutes

a crime of violence . . . . This [conviction] does not involve or require the actual

‘use’ of explosives.” The district court found that his prior conviction for

possession of a Molotov cocktail qualified as a “crime of violence” under § 4B1.2

and set the Base Offense Level at 24. Barker timely appeals, and we affirm.

      We have jurisdiction pursuant to 18 U.S.C. §§ 1291 and 3742(a). The

district court’s interpretation of the Sentencing Guidelines is reviewed de novo.

See United States v. Nielsen, 371 F.3d 574, 582 (9th Cir. 2004); United States v.

Phillips, 367 F.3d 846, 855 (9th Cir. 2004). Sentencing decisions are reviewed for

abuse of discretion. See Gall v. United States, 552 U.S. 38, 49 (2007); United

States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The sentences are

reviewed for reasonableness, and only a procedurally erroneous or substantively



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unreasonable sentence is set aside. See Gall, 552 U.S. at 46; Carty, 520 F.3d at

993.

       If a defendant is convicted of unlawful receipt, possession, or transportation

of firearms, the Guidelines instruct the district court to set a baseline level of 24 if

“the defendant committed any part of the instant offense subsequent to sustaining

at least two felony convictions.” U.S. SENTENCING GUIDELINES MANUAL §

2K2.1(a)(2) (U.S. SENTENCING COMM’N 2014). The two felony convictions must

be “either crime[s] of violence or controlled substance offense[s].” Id. Barker’s

2004 conviction undoubtedly qualifies as a controlled substance offense, and he

does not dispute that finding here. However, he claims that possession of a

Molotov cocktail does not qualify as a crime of violence. We disagree.

       Section 4B1.2, in relevant part, defines crime of violence:

       (a) The term ‘crime of violence’ means any offense under federal or
       state law, punishable by imprisonment for a term exceeding one year,
       that . . . .
       (2) is burglary of a dwelling, arson, or extortion, involves use of
       explosives, or otherwise involves conduct that presents a serious
       potential risk of physical injury to another.

Application Note 1 of the Commentary to § 4B1.2 then provides

       ¶2 Other offenses are included as “crimes of violence” if. . . (B) the
       conduct set forth (i.e., expressly charged) in the count of which the
       defendant was convicted involved use of explosives (including any
       explosive material or destructive device) or, by its nature, presented
       a serious potential risk of physical injury to another.


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      ¶3 “Crime of violence” does not include the offense of unlawful
      possession of a firearm by a felon, unless the possession was of a
      firearm described in 26 U.S.C. § 5845(a).

(Emphasis added). There is no dispute as to whether Barker used his Molotov

cocktail. He did not. The question is whether a Molotov cocktail qualifies as a

firearm pursuant to § 5845(a), which criminalizes possession of such firearms.

      We hold that a Molotov cocktail fits within the firearm category of “a

destructive device.” 26 U.S.C. § 5845(a)(8). “The term ‘destructive device’ means

(1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade . . . or (F)

similar device.” Id. § 5845(f). A Molotov cocktail is an incendiary device that is

quite similar to a grenade. Therefore, possession constitutes a crime of violence.

      Barker argues that our decisions in United States v. Canon, 993 F.2d 1439,

1441 (9th Cir. 1993), and United States v. Fish, 368 F.3d 1200 (9th Cir. 2004),

held that mere possession could not qualify as a crime of violence. This is – or at

least was – true. However, the Sentencing Commission amended the Guidelines in

2004 to make possession of § 5845(a) firearms unlawful, thus overruling Canon

and Fish. U.S. SENTENCING GUIDELINES MANUAL app. C, amend. 674 (U.S.

SENTENCING COMM’N 2009) (“[T]his amendment expands the definition of ‘crime

of violence’ in Application Note 1 . . . to include unlawful possession of any

firearm described in 26 U.S.C. § 5845(a). The amendment also excepts possession



                                          4
of those firearms . . . from the rule that excludes felon in possession offenses from

the definition of ‘crime of violence.’”).

      Finally, we note that the Supreme Court held in Beckles v. United States, 137

S. Ct. 886, 895 (2017), that “the advisory Sentencing Guidelines are not subject to

a vagueness challenge under the Due Process Clause and that § 4B1.2(a)’s residual

clause is not void for vagueness.” We therefore reject any challenges based on

vagueness.

      For the foregoing reasons, the sentence of the district court is

AFFIRMED. This case is resubmitted concurrently with the filing of this

disposition.




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