United States v. Malone, 646 F. App'x 454

Malone, a convicted felon, was arrested after police found a loaded, stolen Glock on him following an investigation into an armed kidnapping and assault.
He pleaded guilty in federal court to being a felon in possession of a firearm and ammunition (18 U.S.C. § 922(g)(1)); no plea agreement.
The PSR applied U.S.S.G. § 2K2.1(a)(2) (base offense level 24) based on two prior felonies: a 2004 Ohio aggravated burglary (treated as a "crime of violence") and a 2006 drug‑trafficking offense.
Two enhancements were added: +2 for a stolen firearm and +4 under U.S.S.G. § 2K2.1(b)(6)(B) for possession in connection with another felony (state kidnapping/assault charges); Malone later withdrew his objection to the +4 enhancement.
After acceptance‑of‑responsibility credit, offense level yielded a Guidelines range exceeding the statutory maximum; district court imposed the 120‑month statutory maximum and ordered concurrent state time.
On appeal Malone challenged (1) classification of the aggravated burglary as a "crime of violence" for § 2K2.1(a)(2) and (2) the § 2K2.1(b)(6)(B) four‑level enhancement.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Malone's Ohio aggravated burglary conviction qualifies as a "crime of violence" for U.S.S.G. § 2K2.1(a)(2) (affecting base offense level)	Government conceded the burglary had been treated under the guideline residual clause but contended the sentencing calculation was proper at the time	Malone argued the prior offense should not count as a "crime of violence," implicating Johnson v. United States' invalidation of the residual clause	Court vacated and remanded for resentencing in light of Johnson because the residual clause is unconstitutionally vague; government conceded plain error
Whether Malone is entitled to relief from the four‑level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possession in connection with another felony	Government maintained the enhancement applied	Malone initially objected but expressly withdrew that objection and asked for concurrent sentencing with state case	Court held Malone waived appellate review of this enhancement by withdrawing his objection; no review on appeal

Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause is unconstitutionally vague)
United States v. Binford, 818 F.3d 261 (6th Cir. 2016) (applying Johnson to vacate sentences tied to guideline residual clause)
Gall v. United States, 552 U.S. 38 (2007) (abuse‑of‑discretion standard for reviewing sentence reasonableness)
United States v. Sheppard, 149 F.3d 458 (6th Cir. 1998) (waiver doctrine bars appellate review of issues intentionally abandoned)