Asberry

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-30009 Plaintiff-Appellee, v.  D.C. No.

CR-02-00246-ALA

LEO ASBERRY,

OPINION

Defendant-Appellant.  Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Argued and Submitted September 17, 2004—Portland, Oregon

Filed January 11, 2005

Before: J. Clifford Wallace, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Gould; Concurrence by Judge Bea

361 364 UNITED STATES v. ASBERRY

COUNSEL

Nancy Bergeson, Assistant Federal Public Defender, for the defendant-appellant.

Fredric N. Weinhouse, Assistant United States Attorney, for the plaintiff-appellee. UNITED STATES v. ASBERRY 365

OPINION

GOULD, Circuit Judge:

Leo Asberry, Jr. appeals his sentence for possessing ammu- nition as a felon, in violation of 18 U.S.C. § 922(g)(1) (2000). On appeal, Asberry challenges district court rulings that: 1) an Oregon conviction for Rape in the Third Degree constituted a “crime of violence” under United States Sentencing Guide- lines…