Morgan

MEMORANDUM **

In a published opinion, we affirmed Defendant Jerry Lee Morgan’s convictions but, on the government’s cross-appeal, reversed and remanded for resentencing. United States v. Morgan, 238 F.3d 1180 (9th Cir.), cert. denied, — U.S. -, 122 S.Ct. 146 , 151 L.Ed.2d 97 (2001). This second appeal follows the resentencing.

Defendant argues that the district court erred as a matter of law when it interpreted and applied U.S.S.G. § 2B3.1 (2000).

Defendant was convicted of both kidnapping and carjacking. The guideline for kidnapping is § 2A4.1; the guideline for carjacking is § 2B3.1. The carjacking guideline determines Defendant’s offense level because that guideline (a) includes an adjustment for kidnapping and (b) recommends a higher offense level than the kidnapping guideline. See U.S.S.G. § 2A4.1(b)(7)(A).

As we explained in our earlier opinion, if the victim of a carjacking sustains bodily injury that is “permanent or life-threatening,” a six-level increase in the offense level is warranted. Morgan, 238 F.3d at 1187 ; U.S.S.G. § 2B3.1(b)(3)(C). Defendant argues that application note 5 to U.S.S.G. § 1B1.3 precludes the use of the six-level increase. However,…