                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 11a0782n.06

                                             No. 10-1322
                                                                                               FILED
                           UNITED STATES COURT OF APPEALS                                 Nov 21, 2011
                                FOR THE SIXTH CIRCUIT
                                                                                   LEONARD GREEN, Clerk
UNITED STATES OF AMERICA,                              )
                                                       )
        Plaintiff-Appellee,                            )       ON APPEAL FROM THE
                                                       )       UNITED STATES DISTRICT
v.                                                     )       COURT FOR THE EASTERN
                                                       )       DISTRICT OF MICHIGAN
WALTER JASON PRIEST,                                   )
                                                       )
        Defendant-Appellant.                           )




        BEFORE: BOGGS, ROGERS, and SUTTON, Circuit Judges.


        PER CURIAM. Walter Jason Priest appeals the district court’s judgment of conviction and

sentence. He moves this court for immediate consideration of his appeal.

        Priest pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). The district court determined that Priest’s base offense level was 26 based in part on

his two prior convictions for crimes of violence. After adding two levels because the offense

involved three firearms and subtracting three levels for acceptance of responsibility, the district court

determined that Priest’s total offense level was 25. Based on the total offense level of 25 and a

criminal history category of VI, the district court determined that Priest’s guidelines range of

imprisonment was 110 to 120 months. The court sentenced him to 110 months in prison.

        On appeal, Priest raises three challenges to the district court’s judgment: (1) the court

improperly calculated his base offense level under USSG § 2K2.1(a) by concluding that his prior

conviction for malicious destruction of police property was a crime of violence; (2) the court
No. 10-1322
United States v. Priest

erroneously concluded that he possessed a silencer that qualified as a firearm for purposes of USSG

§ 2K2.1(b)(1)(A), and defense counsel rendered ineffective assistance by failing to obtain an

independent expert to determine whether the device was a silencer; and (3) the court miscalculated

his criminal history score. We review the district court’s application of the Sentencing Guidelines

de novo and its findings of fact for clear error. United States v. Deitz, 577 F.3d 672, 698 (6th Cir.

2009).

         Priest first argues that the district court improperly calculated his base offense level under

§ 2K2.1(a) by concluding that his prior conviction for malicious destruction of police property was

a crime of violence. A “crime of violence” is defined as any state or federal offense punishable by

a term of imprisonment exceeding one year that either involves the use, attempted use, or threatened

use of physical force against the person of another or involves certain enumerated crimes or conduct

that presents a serious potential risk of physical injury to another. See USSG §§ 2K2.1(a)(1) & cmt.

n.1, 4B1.2(a). As the government concedes, Priest’s prior conviction for malicious destruction of

police property, based on his destruction of a bed sheet in his cell, did not constitute a crime of

violence for purposes of § 2K2.1(a). See United States v. Anglin, 601 F.3d 523, 526-27 (6th Cir.

2010). Consequently, the district court erred by determining that Priest’s base offense level was 26

under § 2K2.1(a)(1) rather than 22 under § 2K2.1(a)(3).

         Priest next argues that the district court improperly enhanced his offense level under

§ 2K2.1(b)(1)(A) based on its erroneous conclusion that he possessed a silencer that qualified as a

third firearm. Priest further argues that defense counsel rendered ineffective assistance by failing

to obtain an independent expert to determine whether the device in question was a silencer. Priest

admitted that he made the device because his assault rifle was kept in his daughter’s room and, in

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United States v. Priest

the event he had to fire it, he did not want the noise to hurt her ears. Further, a special agent from

the Bureau of Alcohol, Tobacco, and Firearms prepared a report concluding that, based on the

characteristics of the device, it was a silencer for Priest’s assault rifle. Given that evidence, the

district court did not clearly err in concluding that the device was a silencer, and it properly assessed

two levels under § 2K2.1(b)(1)(A). See 18 U.S.C. § 921(a)(3)(C); USSG § 2K2.1, cmt. n.1. The

record is insufficient to permit adequate review of Priest’s claim that defense counsel rendered

ineffective assistance. See United States v. McCarty, 628 F.3d 284, 295-96 (6th Cir. 2010).

          Finally, Priest argues that the district court miscalculated his criminal history score in two

ways: (1) the court improperly assessed three points under USSG § 4A1.1(a) rather than two points

under § 4A1.1(b) based on his prior conviction for possession of explosives with intent to terrorize

because Priest served only six months of his three to ten year sentence for that crime; and (2) the

court improperly assessed two points under § 4A1.1(e) of the 2008 edition of the Sentencing

Guidelines because he did not commit his current offense within two years of being released from

prison. The district court did not err by assessing three points under § 4A1.1(a) because Priest’s

maximum sentence was ten years for his prior offense and he actually served a period of

imprisonment on the sentence. See USSG §§ 4A1.1(a), 4A1.2(b)(1) & cmt. n.2. The district court

did err, however, by overruling Priest’s objection at the conclusion of the sentencing hearing and

assessing two points under § 4A1.1(e). That section applies when the current offense is committed

less than two years after release from imprisonment, see USSG § 4A1.1(e) (2008), and, as the

government concedes, Priest did not commit his offense within two years of being released from

prison.




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United States v. Priest

       Accordingly, we vacate Priest’s sentence and remand to the district court for a full

resentencing consistent with this opinion. Priest’s motion for immediate consideration of his appeal

is denied as moot.




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