      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

          United States Court of Appeals
                      For the First Circuit


No. 00-1677

                          UNITED STATES,

                             Appellee,

                                v.

                    JAMES RAYMOND WALKER, JR.,

                       Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF MAINE

              [Hon. Gene Carter, U.S. District Judge]


                              Before

                        Stahl, Circuit Judge,
                  Campbell, Senior Circuit Judge,
                     and Lipez, Circuit Judge.




     Jeffrey Silverstein and Billings & Silverstein on brief for
appellant.
     Jay P. McCloskey, United States Attorney, and Margaret D.
McGaughey, Appellate Chief, on brief for appellee.




                         January 26, 2001
           Per   Curiam.         On   December   5,    2000,   this   court

directed the parties to submit supplemental briefing on the

issue of whether the lower court committed plain error when

it used a base offense level of 37 to compute appellant

James Raymond Walker, Jr.’s (“Walker’s”) sentence.                      The

court has received the parties supplemental briefs, and we

are in accordance with the parties’ joint recommendation

that the case be remanded for re-sentencing.

           Section 4B1.1 of the U.S. Sentencing Guidelines

sets a defendant’s base offense level by reference to the

“offense statutory maximum” for any underlying crimes of

violence   for   which     the    defendant      was   convicted.       See

U.S.S.G. § 4B1.1(A) at app. note 2.              Two of the crimes of

violence for which Walker was convicted (the robberies) each

carried maximum terms of imprisonment of 20 years, and the

third crime of violence (use of a firearm during a crime of

violence) carried a maximum term of imprisonment of seven

years (consecutive).       Possession of a firearm by a convicted

felon (Count VI), which in Walker’s case did carry the

possibility of a life sentence, is not a crime of violence

for purposes of section 4B1.1.              See United States v. Bell,


                                      -2-
966 F.2d 703, 707 (1st Cir. 1992). The base offense level for

an offense carrying a statutory maximum of 20 years or more,

but less than 25 years, is 32.            U.S.S.G. § 4B1.1(C).        Thus,

under the career offender guideline, Walker’s offense level

would have been 32, not 37 as determined by the sentencing

court.

           But     Walker    also   was    an    armed    career   criminal

because he was subject to the enhanced sentence under 18

U.S.C. § 924(e), so U.S.S.G. § 4B1.4 is relevant here, too.

Section 4B1.4 provides that where a defendant is an armed

career criminal, his offense level is the greatest of: 1)

the offense level applicable under chapters two and three of

the sentencing guidelines (in this case, 29), 2) the offense

level for a career offender (in this case, 32), or 3) 34,

if, like Walker, the defendant used or possessed the firearm

in    connection    with    a   crime     of    violence.      U.S.S.G.    §

4B1.4(b)(1) - (3).        The greatest of these is 34, so Walker’s

base offense level should have been 34.                  After a reduction

for    acceptance    of     responsibility       and     assignment   of   a

Criminal History Category of VI, see U.S.S.G. § 4B1.4(c)(2),

the applicable sentencing range should have been 188 to 235

months.




                                    -3-
           This court may reverse for plain error affecting

substantial rights.            See Fed. R. Crim. P. 52(b); United

States v. Olivier-Diaz, 13 F.3d 1, 5 (1st Cir. 1993).                           The

sentence Walker received was 27 months longer than the top

of the applicable sentencing guideline range, so we conclude

that plain error is present here.                 We vacate the judgment of

the   district        court    and       remand     for       re-sentencing      in

accordance      with   this    opinion.           The    question      originally

briefed    by   the    parties       –   whether        the    prior   crimes    of

violence were “related” for purposes of section 4B1.1 – is

rendered    moot,      since   both       the     base    offense      level    and

Criminal History Category are to be determined by section

4B1.4 instead.

           Judgment       vacated        and    matter        remanded   for    re-

sentencing.




                                         -4-
