                                                                              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                           NOT FOR PUBLICATION                                 JAN 27 2014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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