Dearinger

AMENDED MEMORANDUM ***

Robert R. Dearinger appeals his sentence of 100 months in prison following a plea of guilty to bank robbery in violation of 18 U.S.C. § 2113 (a).

Dearinger argues that the district court committed nonconstitutional error by sentencing him under the mandatory United States Sentencing Guidelines (“U.S.S.G.”) in violation of United States v. Booker, 543 U.S. 220, 245-46, 268 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005). Because Dearinger preserved his Booker claim, we review for harmless error, see United States v. Seschillie, 310 F.3d 1208, 1214 (9th Cir.2002), and we conclude that the government failed to meet its burden to establish that “it is more probable than not that the error did not materially affect the verdict.” See id. at 1215 . Accordingly, we reverse the district court’s sentence and remand for resentencing. Id. (under harmless error review, “ ‘we must reverse ... unless it is more probable than not’ that the error was harmless.”) (citations omitted).

Dearinger also appeals the district court’s finding that his prior convictions are predicate offenses under the career offender provisions of U.S.S.G. § 4B1.1. The status of a prior conviction as a…