United States v. Silva, 981 F.3d 794

Defendant Donovan Silva pleaded guilty in 2019 to possessing a firearm as a felon (offense date June 11, 2018).
Prior state convictions (entered 2005, sentenced Jan. 17, 2006) for third-degree burglary (two-year imprisonment) and second-degree assault (fines and costs) were imposed the same day and treated as a single sentence under USSG §4A1.2(a)(2).
The PSR counted the single sentence as three criminal-history points (based on the burglary) and nevertheless treated the old assault conviction as a predicate "crime of violence" under USSG §2K2.1(a)(4)(A), raising Silva’s base offense level from 14 to 20.
Silva raised no objection in district court, which adopted the PSR and sentenced him to 42 months’ imprisonment (below the advisory 51–63 month range calculated with the enhancement).
On appeal Silva argued the assault conviction was too old and did not independently merit criminal-history points under USSG §4A1.2 cmt. n.3(A), so it could not serve as a §2K2.1 predicate; review is for plain error.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an old, non-incarcerative prior conviction that was part of a single sentence may serve as a predicate for a §2K2.1 enhancement	Gov: §2K2.1 cmt.10 (more specific) controls; §4A1.2 n.3(A)’s "independently receive points" rule does not bar counting for (a)(3)/(a)(4)	Silva: §4A1.2 cmt. n.3(A) requires a prior conviction to be independently eligible for criminal-history points to serve as a predicate; his assault (no imprisonment and >10 years old) is ineligible	Court: §4A1.2 cmt. n.3(A) applies; the assault was not independently eligible, so it could not serve as a §2K2.1 predicate and the enhancement was improper
Whether the error is plain (plain-error review)	Gov: (responded at argument; did not dispute that if §4A1.2 n.3(A) applies then error follows)	Silva: error was clear under existing law and affected his Guidelines range	Court: Error was clear/obvious, affected substantial rights, and satisfied plain-error prongs; reversed and remanded for resentencing

United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014) (sets fourth‑prong plain‑error framework and presumption when guideline error is clear)
United States v. Poe, 556 F.3d 1113 (10th Cir. 2009) (‘‘plain’’ error requires error that is clear or obvious under current law)
Stinson v. United States, 508 U.S. 36 (U.S. 1993) (Sentencing Commission commentary is authoritative unless inconsistent with guideline/statute)
United States v. Gieswein, 887 F.3d 1054 (10th Cir. 2018) (treats commentary as authoritative when consistent)
United States v. Morton, [citation="714 F. App'x 419"] (5th Cir. 2018) (applies §4A1.2 cmt. n.3(A) to §2K2.1 predicate issue)
Lujan v. Regents of Univ. of Cal., 69 F.3d 1511 (10th Cir. 1995) (statutory language controls over policy arguments)
Rodriguez v. United States, 480 U.S. 522 (U.S. 1987) (statutory interpretation precedent cited for language controlling over policy)