Decelles

MEMORANDUM **

Jessey Lee Charles Decelles and James Eric Case pled guilty to the knowing possession of stolen firearms. See 18 U.S.C. § 922 (j). At sentencing, the district court calculated their Guidelines ranges by applying an enhancement for possession of a firearm “in connection with another felony offense.” See USSG § 2K2.1(b)(5) (Nov. 2005). They appeal and assert that the district court erred when it applied that enhancement. We agree and, therefore, vacate the sentences and remand.

(1) We agree with the district court’s decision to apply the November 1, 2005, version of the Guidelines. See USSG § 2K2.1(b)(5) (Nov. 2005). However, we disagree with the district court’s consideration of the application note first adopted in the November 1, 2006, version of the Guidelines regarding firearms found and taken in a burglary 1 because it was substantive in nature. That is because it was not listed by the Commission as retroactive, 2 was not declared by the Commission to be clarifying, 3 and, while it may have resolved a circuit conflict, its negative consequences to defendants suggested that it was substantive. 4 Moreover, it changed the law of this circuit by imposing a per se…