Brown

*945 MEMORANDUM **

Eugene Brown appeals the sentence imposed by the district court for his conviction by guilty plea of possessing a firearm after having been convicted of a felony in violation of 18 U.S.C. § 922 (g)(1). At sentencing, the district court increased Brown’s base offense level by four pursuant to U.S.S.G. § 2K2.1(b)(5) (2005) for use or possession of a firearm in connection with the commission of another felony offense, namely, second degree assault. Because this four-level increase may not have been warranted, we vacate the sentence and remand for resentencing after a determination as to whether the alleged victim of the assault did, in fact, apprehend imminent bodily harm as required by Washington law.

While a district court has the discretion to sentence outside the applicable Guidelines range, it must still calculate that range correctly. See Gall v. United States, 552 U.S. -, 128 S.Ct. 586, 596 , 169 L.Ed.2d 445 (2007) (“[A] district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range.”). In Washington, an assault is committed “merely by putting another in apprehension of harm whether or not the actor actually…