Canon

Opinion by Judge T.G. NELSON; Dissent by Judge LEAVY.

Douglas E. Canon and Robert J. Delang appeal their sentences contending that it was a violation of the Ex Post Facto Clause of the Constitution for the district court to consider a sentencing guideline provision adopted after the date of the crime as a guide in an upward departure. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 , and we vacate the sentences and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

This case is back before us following a remand for resentencing. In the first appeal, we stated the facts as follows:

United States v. Canon, 993 F.2d 1439,1440-41 (9th Cir.1993) (Canon I).

We held that being a felon in possession of a firearm under 18 U.S.C. § 922 (g) was not a crime of violence for purposes of 18 U.S.C. § 924 (c) and reversed those convictions. Id. at 1441 . We also held that “Canon and Delang are armed career criminals under Guidelines § 4B1.4,” and remanded for their resentencing as armed career criminals. Id. at 1441, 1442.

On remand, the district court preliminarily calculated the applicable sentencing range. The November 1, 1989, sentencing guidelines were in effect at…

dissenting:

I dissent. I believe that the correct approach to this case is to begin with the fact that there was no applicable sentencing guideline in place at the time in question, rather than trying to analogize to uncharged conduct.

Douglas Canon and Robert Delang were convicted of being felons in possession of a firearm in violation of 18 U.S.C. § 922 (g)(1). Because both defendants had three prior convictions for having committed violent felonies, we instructed the district court in an earlier appeal to sentence both men as armed career criminals under 18 U.S.C. § 924 (e)(1). United States v. Canon, 993 F.2d 1439, 1442 (9th Cir.1993). That provision subjected the defendants to mandatory minimum sentences of at least fifteen years, and maximum possible sentences of life imprisonment. See 18 U.S.C. § 924 (e)(1) (“In the ease of a person who violates section 922(g) of this title and has three previous convictions ... for a violent felony ... such person shall be ... imprisoned not less than fifteen years[.]”); United States v. Bland, 961 F.2d 123, 128 (9th Cir.) (“[A] life sentence is authorized by section 924(e).”), cert. denied, - U.S.-, 113 S.Ct. 170 , 121 L.Ed.2d 117…