Cain

MEMORANDUM *

Defendant Sheldon Cain appeals both the district court’s order denying his mo *170 tion to suppress evidence and the district court’s categorization at sentencing of Cain’s previous conviction for second-degree assault as a crime of violence under the United States Sentencing Guidelines. Because the evidence at issue was seized pursuant to a lawful protective search, and because the prior conviction at issue is categorically a crime of violence, we affirm.

We review de novo both the district court’s denial of a motion to suppress incriminating evidence, United States v. By-num, 362 F.3d 574, 578 (9th Cir.2004), and its interpretation of the Sentencing Guidelines. United States v. Alexander, 287 F.3d 811, 818 (9th Cir.2002).

Although the parties spend considerable time debating whether Todd was actually driving and therefore lawfully arrested for driving on a suspended license, the point is irrelevant. In the wake of Arizona v. Gant, — U.S. —, 129 S.Ct. 1710 , 173 L.Ed.2d 485 (2009), the search of the vehicle in this case cannot be justified as a search incident to arrest, whether or not Todd was lawfully arrested. After the district court ruled in this case, but…