United States v. Dennis

206 F. App'x 719

Opinion

MEMORANDUM

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Marc Alan Dennis appeals from the sentence following his guilty-plea conviction for possession of a firearm by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We have jurisdiction under 28 U.S.C. § 1291. Because Dennis failed to object below to the sentencing enhancement he now challenges on appeal, we review for plain error, see United States v. Jimenez, 258 F.3d 1120, 1123 (9th Cir.2001), and we vacate and remand for resentencing.

Dennis contends that the district court erred in using a heightened base offense level and criminal history score to enhance his sentence, because the statute of his prior conviction includes simple possession and therefore is not categorically a controlled substance offense. We agree. See U.S.S.G. §§ 2K2.1, cmt. 1, and 4B1.2(b); see also Nev.Rev.Stat. § 453.3385. “A controlled substance offense” includes within its definition possession of a controlled substance with intent to manufacture, import, export, distribute, or dispense, but does not include simple possession. See U.S.S.G. § 4B1.2(b). The Nevada statute on its face criminalizes simple possession. See Nev.Rev.Stat. § 453.3385.

Because the record does not include enough information to conduct a modified categorical analysis, we vacate and remand for resentencing. See United States v. Pimentel-Flores, 339 F.3d 959, 968 (9th Cir.2003).

VACATED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.