[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1677
UNITED STATES,
Appellee,
v.
JAMES RAYMOND WALKER, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Stahl, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Jeffrey Silverstein and Billings & Silverstein on brief for
appellant.
Jay P. McCloskey, United States Attorney, and Margaret D.
McGaughey, Appellate Chief, on brief for appellee.
January 26, 2001
Per Curiam. On December 5, 2000, this court
directed the parties to submit supplemental briefing on the
issue of whether the lower court committed plain error when
it used a base offense level of 37 to compute appellant
James Raymond Walker, Jr.’s (“Walker’s”) sentence. The
court has received the parties supplemental briefs, and we
are in accordance with the parties’ joint recommendation
that the case be remanded for re-sentencing.
Section 4B1.1 of the U.S. Sentencing Guidelines
sets a defendant’s base offense level by reference to the
“offense statutory maximum” for any underlying crimes of
violence for which the defendant was convicted. See
U.S.S.G. § 4B1.1(A) at app. note 2. Two of the crimes of
violence for which Walker was convicted (the robberies) each
carried maximum terms of imprisonment of 20 years, and the
third crime of violence (use of a firearm during a crime of
violence) carried a maximum term of imprisonment of seven
years (consecutive). Possession of a firearm by a convicted
felon (Count VI), which in Walker’s case did carry the
possibility of a life sentence, is not a crime of violence
for purposes of section 4B1.1. See United States v. Bell,
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966 F.2d 703, 707 (1st Cir. 1992). The base offense level for
an offense carrying a statutory maximum of 20 years or more,
but less than 25 years, is 32. U.S.S.G. § 4B1.1(C). Thus,
under the career offender guideline, Walker’s offense level
would have been 32, not 37 as determined by the sentencing
court.
But Walker also was an armed career criminal
because he was subject to the enhanced sentence under 18
U.S.C. § 924(e), so U.S.S.G. § 4B1.4 is relevant here, too.
Section 4B1.4 provides that where a defendant is an armed
career criminal, his offense level is the greatest of: 1)
the offense level applicable under chapters two and three of
the sentencing guidelines (in this case, 29), 2) the offense
level for a career offender (in this case, 32), or 3) 34,
if, like Walker, the defendant used or possessed the firearm
in connection with a crime of violence. U.S.S.G. §
4B1.4(b)(1) - (3). The greatest of these is 34, so Walker’s
base offense level should have been 34. After a reduction
for acceptance of responsibility and assignment of a
Criminal History Category of VI, see U.S.S.G. § 4B1.4(c)(2),
the applicable sentencing range should have been 188 to 235
months.
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This court may reverse for plain error affecting
substantial rights. See Fed. R. Crim. P. 52(b); United
States v. Olivier-Diaz, 13 F.3d 1, 5 (1st Cir. 1993). The
sentence Walker received was 27 months longer than the top
of the applicable sentencing guideline range, so we conclude
that plain error is present here. We vacate the judgment of
the district court and remand for re-sentencing in
accordance with this opinion. The question originally
briefed by the parties – whether the prior crimes of
violence were “related” for purposes of section 4B1.1 – is
rendered moot, since both the base offense level and
Criminal History Category are to be determined by section
4B1.4 instead.
Judgment vacated and matter remanded for re-
sentencing.
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