Case Information
*1 BEFORE: BOGGS, ROGERS, and SUTTON, Circuit Judges.
PER CURIAM. Wаlter 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 levеls 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 оn 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 appеal, 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 destructiоn of police property was a crime of violence; (2) the court
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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 novо and its findings of fact for clear error.
United States v. Deitz
,
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 аs any state or federal offense punishable by
a term of imprisonment exceeding one yeаr that either involves the use, attempted use, or threatened
use of physical force agаinst 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 dеstruction 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
,
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 thаt he made the device because his assault rifle was kept in his daughter’s room and, in
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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 Alcоhol, Tobacco, and Firearms prepared a report concluding that, based on the
сharacteristics 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
,
Finally, Priest argues that the district cоurt miscalculated his criminal history score in two ways: (1) the court improperly assessed three pоints under USSG § 4A1.1(a) rather than two points under § 4A1.1(b) based on his prior conviction for possession of explоsives with intent to terrorize because Priest served only six months of his three to ten year sentence fоr 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 рrison. The district court did not err by assessing three points under § 4A1.1(a) because Priest’s maximum sentence was tеn years for his prior offense and he actually served a period of imprisonment on the sentеnce. 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 cоncedes, Priest did not commit his offense within two years of being released from prison.
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.