UNITED STATES of America, Plaintiff-Appellant, v. Jerry Wayne DUNN, Defendant-Appellee

80 F.3d 402 96 Cal. Daily Op. Serv. 2406 , 96 Daily Journal D.A.R. 4029 UNITED STATES of America, Plaintiff-Appellant, v. Jerry Wayne DUNN, Defendant-Appellee. No. 95-30172. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 8, 1996. Decided April 9, 1996. Lana C. Glenn, Spokane, Washington, for the defendant-appellant-cross-appellee. Thomas O. Rice, Assistant United States Attorney, Spokane, Washington, for the plaintiff-appellee-cross-appellant. Appeal from the United States District Court for the Eastern District of Washington, Fred Van Sickle, District Judge, Presiding. Before FLETCHER, NOONAN, and RYMER, Circuit Judges. NOONAN, Circuit Judge: 1 In an unpublished memorandum disposition we affirm Jerry Wayne Dunn's conviction of two counts of illegal firearm possession and the conviction following his plea of guilty to one count of possessing methamphetamine; we also affirm his sentence. In this opinion we address the cross-appeal of the government to the sentence. Commentary adopted by the United States Sentencing Commission is challenged by the Department of Justice, which contends that it is contrary to the relevant statute. We find the government's…

In an unpublished memorandum disposition we affirm Jerry Wayne Dunn’s conviction of two counts of illegal firearm possession and the conviction following his plea of guilty to one count of possessing methamphetamine; we also affirm his sentence. In this opinion we address the cross-appeal of the government to the sentence. Commentary adopted by the United States Sentencing Commission is challenged by the Department of Justice, which contends that it is contrary to the relevant statute. We find the government’s argument unpersuasive and affirm the sentence.

PROCEEDINGS

At Dunn’s sentencing hearing the government objected to using the Amended Application Note 2, U.S.S.G. § 4B1.1, a Note added by Amendment Number 506 adopted by the Sentencing Commission in November 1994 with retroactive effect. See U.S.S.G. § IBl.lO(c) (Nov.1994). The Note reads:

The government contended that the Note is in conflict with 28 U.S.C. § 994 (h), which provides in part:

The argument advanced by the government was that “the maximum term authorized” included the enhancements Dunn could receive for his particular crimes.

On April 19, 1995, the district court rejected the government’s argument and…

dissenting:

I would reverse for the reasons stated by Judge Stahl in his dissenting opinion in United States v. LaBonte, 70 F.3d 1396, 1414-20 (1st Cir.1995) (Stahl, J., dissenting in part).