                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 10 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 07-30356

              Plaintiff - Appellee,              D.C. No. 1:07-cr-00019-RFC

  v.
                                                 MEMORANDUM *
GEOFFREY VON KINDER,

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Montana
                 Richard F. Cebull, District Court Judge, Presiding

                      Argued and Submitted October 4, 2010
                              Seattle, Washington

Before: THOMAS and M. SMITH, Circuit Judges, and EZRA, District Judge.**

       Geoffrey Von Kinder appeals his sentence for being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1). Kinder argues on appeal that the

district court erred in determining under the modified categorical approach that his


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David Alan Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
prior conviction for burglary of a cabin was a “crime of violence” supporting a

base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A). Specifically, Kinder

contests the district court’s conclusion that the cabin burglarized was a dwelling as

defined by U.S.S.G. § 4B1.2(a)(2).

      We conclude that the Information and Sentencing Order from Kinder’s prior

conviction for burglary were sufficient for a finding under the modified categorical

approach that the structure burglarized was a dwelling. United States v. Bonat, 106

F.3d 1472, 1476 (9th Cir. 1997) (“We have previously decided that in determining

if a defendant pled guilty to generic burglary, considering the indictment and the

judgment of conviction does not constitute a factual inquiry forbidden by Taylor

[v. United States, 495 U.S. 575 (1990)].” (citing United States v. O’Neal, 937 F.2d

1369, 1373 (9th Cir. 1991), superseded by statute on other grounds as recognized

in United States v. Huffhines, 967 F.2d 314, 321 (9th Cir. 1992))). Accordingly,

Kinder’s past conviction qualified as a crime of violence under U.S.S.G. §

2K2.1(a)(4)(A), and the district court did not err in applying a base offense level of

20 to Kinder’s sentence.




      AFFIRMED.




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