OPINION
Blackburn appeals the sentence imposed pursuant to his conviction for possession of an unregistered destructive device, in violation of 26 U.S.C. § 5861(d), 5871, We vacate the sentence and remand for resen-tencing.
I.
In the course of a reverse sting operation, Blackburn was approached by a federal agent who asked whether he might be interested in purchasing weapons or hand grenades. Blackburn indicated that he was interested in grenades, and he later told the agent that he was acting as a middleman for a Mr. Smith. The two also discussed using a grenade to murder an undercover policeman who had previously arrested Blackburn. Blackburn and the agent agreed on a price of $50 per grenade.
The agent later contacted Blackburn to say that he had obtained a case of thirty grenades, and the two met to make the transfer. After removing two grenades from the case for the stated purpose of murdering the policeman, the agent placed the case of grenades in the bed of Blackburn’s truck. Only the two grenades removed by the agent were “live”; the other twenty-eight lacked powder and were incapable of being detonated. As Blackburn left in his truck, he was arrested.
Blackburn was indicted for possession of a single grenade and for possession of a pistol (18 U.S.C. § 924(c)). He entered into a plea agreement under which he agreed to plead to a single count of possession of an unregistered destructive device. 1 On October 9, 1990, he was sentenced under the Guidelines to forty-six months. The guideline calculations were as follows:
Base offense level [2K2.2(a)(l) ] 16 2
Acceptance of responsibility [8D1.1] — 2
14
Specific offense characteristics [2K2.2(b)] (based on 30 grenades) + 5
Total offense level 19
Criminal History III
Guideline range 37-46 months
On appeal, Blackburn raises only the issue of the offense-level increase of 5 under U.S.S.G. § 2K2.2(b).
II.
The issue before us is clearly defined: did the district court err as a matter of law or misapply the guidelines in counting the twenty-eight inert grenades as “firearms” as that term is used in the “specific offense characteristics” subsection of U.S.S.G. § 2K2.2? 18 U.S.C. § 3742(a)(1), (2). Under § 2K2.2(b), the base offense level increases as the number of firearms possessed increases. The Application Notes explain that “the definition of firearm used, in this section is that set forth in ... 26 U.S.C. § 5845(a)....” Under 26 U.S.C. § 5845(a), the term firearm includes a “destructive device.” “Destructive device,” in turn, is more precisely defined in 26 U.S.C. § '5845(f) to include “(1) any explosive ... (B) grenade” and “(3) any combination of parts either designed or intended for use in converting any device into a destructive device ... and from which a destructive device may be readily assembled.” The district court believed that this definition was broad enough to cover the twenty-eight inert grenades, apparently on the ground that the inert grenades could be readily activated by the addition of powder.
3
Our analysis is informed by two general propositions. First, the definition of “destructive device” remains the same both for cases involving
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§ 5861 indictments or convictions and for sentences involving U.S.S.G. § 2K2.2(b); thus, we are able to draw on a wealth of case law involving § 5861 convictions.
See generally
Annotation,
Validity, Construction and Application of Provisions of National Firearms Act (26 U.S.C.S. § 5845(f)) Omnibus Crime Control and Safe Streets Act (18 U.S.C.S. § 921(a)(4)) Defining “Destructive Device,
”
25
A.L.R. Fed. 344 (1975). Second, the rule of lenity applies to the interpretation of the Sentencing Guidelines in the same manner as it applies to the interpretation of criminal statutes.
United States v. Rivers,
A.
Although both parties agree that the issue involves a pure matter of law subject to de novo review, a factual issue is raised in the government’s brief. At the sentencing hearing, the government’s response to Blackburn’s arguments was that the twenty-eight inert grenades “are still weapons and could have been made easily to explode by the addition of some other factors here.” The district court added that “all you have to do is add the powder and the fragments to make an inert grenade an active grenade ...a statement in which the government concurred. On appeal, the government contends that the fact that two of the grenades contained powder is sufficient to bring each of the thirty grenades within the ambit of “a destructive device,” i.e., explosive grenade, because that powder could have been redistributed evenly to create thirty live grenades. However, no evidence was presented to support this claim. The government’s belated explanation is too little and too late.
The qualification of the twenty-eight inert grenades as “destructive devices” was clearly a factor that enhanced Blackburn’s sentence. To the extent that a factual question was implicated, the government had the burden of establishing by a preponderance of the evidence that this factor was applicable.
United States v. Urrego-Linares,
must be based on some evidence. The [government] cannot meet [its] burden simply by offering conclusory state-ments_ While the finding of the applicability of an aggravating factor is protected on appeal by the clearly erroneous standard of review, this protection does not extend to a determination made without any factual foundation.
United States v. Gordon,
In Gordon, the district court concurred in the recommendation contained in the pre-sentence report and granted a two-level decrease in the offense level on the grounds that the defendant was a “minimal participant” under U.S.S.G. § 3B1.2(b). The government appealed this ruling, and we remanded for resentencing without the two-level decrease because there was no evidence to support the factual finding that Gordon was a “minimal participant.”
In the case before us, we are unable to determine from the record whether one-fourteenth of the powder in one of the live grenades would be sufficient to arm one of the inert grenades.
4
It is beyond dispute that a certain minimum level of powder would be needed to transform an unarmed grenade into an “explosive grenade.”
See United States v. One 1972 Chevrolet El Camino Pickup Truck,
B.
A second issue, one involving statutory construction (and, as such, a matter of
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law), is whether the inert grenades were “destructive devices” regardless of the ability to arm all thirty with the powder from two. The government cites only two cases in its brief, both for the proposition that the
quantity
of powder is not disposi-tive. Neither case, however, supports the government’s argument.
Ballew v. United States,
At its core, the legal issue is whether a person can be deemed in possession of a “destructive device” if he does not possess one of the requisite parts or ingredients needed to activate the device. A defendant may be penalized under § 2K2.2(b) for only that number of destructive devices which may be “readily assembled" from the parts in his possession. A defendant must possess
every
essential part necessary to construct a destructive device.
See United States v. Malone,
The sentence is vacated, and the case is remanded with instructions to recalculate the sentence without any additions to the base offense level under U.S.S.G. § 2K2.2(b).
VACATED AND REMANDED.
Notes
. Prior to sentencing on the federal charge, Blackburn was convicted in state court of solicitation of murder and was sentenced to ten years.
. Effective November 1, 1990, this base offense level is 18. U.S.S.G. App.C., Amend. 333.
.The undisputed possession of the two live grenades is immaterial under § 2K2.2(b); the offense-level increases apply to the possession of three or more firearms.
., Related to this question is whether the explosive component of the live grenades could even be removed and redistributed.