United States v. Floyd Lovell Fish

Floyd Lovell Fish appeals his sentence of 51 months incarceration and three years of supervised release imposed following his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g)(1). In setting Fish’s base offense level at 20, the district court concluded that Fish’s prior conviction for violation of Or. Rev. Stat. § 166.382 , which prohibits the “unlawful possession of a destructive device,” constituted a “crime of violence” pursuant to United States Sentencing Guidelines §§ 2K2.1(a)(4)(A) and 4B1.2(a).

This provision was the subject of our recent decision in United States v. Wenner, 351 F.3d 969 (9th Cir.2003), which was announced after Fish’s sentencing. We are guided by Wenner to conclude that Fish’s predicate crime of possession of a destructive device did not constitute a “crime of violence” under Sentencing Guidelines §§ 2K2.1(a)(4)(A) and 4B1.2(a). The sentence is vacated and the ease is remanded for resentencing.

I. BACKGROUND

On May 29, 1997, the state of Oregon charged Fish with violation of Or. Rev. Stat. § 166.382 , which prohibits the “unlawful possession of a destructive device.” The indictment specifically charged him with…