Appeal from the United States District Court for the Southern District of California. D.C. No. CR-90-0890-01-MLH. Marilyn L. Huff, District Judge, Presiding.
Before: Betty B. Fletcher, Cecil F. Poole and Diarmuid F. O'Scannlain, Circuit Judges. Opinion by Judge Fletcher.
We originally decided this appeal on the briefs. Subsequently we granted the petition for rehearing. We now withdraw the memorandum Disposition filed October 6, 1993 and substitute this opinion.
In this appeal, Fredrick Garcia-Cruz appeals his 41-month sentence, imposed following remand from this court for resentencing. Garcia-Cruz was originally sentenced to 200 months, following a jury trial, for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Garcia-Cruz contends that the district court erred by applying the Guidelines in effect on the date of his original sentencing, rather than those in effect at the time of the offense. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand for resentencing.
We review de novo the district court's application of the Guidelines. United States v. Kohl, 972 F.2d 294, 297 (9th Cir. 1992).
Generally, a district court applies the Guidelines in effect on the date the defendant is sentenced. United States v. Warren, 980 F.2d 1300, 1304 (9th Cir. 1992), cert. denied, 126 L. Ed. 2d 344, 114 S. Ct. 397 (1993). We recently held, however, that following remand for resentencing that "absent an ex post facto problem, the district court must apply the version of the Sentencing Guidelines in effect on the date of resentencing." United States v. Fagan, 996 F.2d 1009, 1018 (9th Cir. 1993). Where application of the amended version results in a harsher sentence, the district court should apply an earlier version not posing an ex post facto problem. See id. ; see also United States v. Gross, 979 F.2d 1048, 1052-53 (5th Cir. 1992) (instructing district court to apply on remand Guidelines in effect on date of original sentencing because application of amended version would result in increase of defendant's sentence); United States v. Kopp, 951 F.2d 521, 534 (3d Cir. 1991) (similar). We have three choices here: The 1988 Guidelines in effect at the time of the offense;*fn1 the 1990 Guidelines in effect at the time of the original sentencing; and the 1992 Guidelines in effect at the time of the resentencing.
The relevant facts are undisputed. The offense of conviction occurred in December 1988. On October 21, 1991, the district court imposed a 200-month sentence under the Armed Career Criminal Act (ACCA), finding that being a felon in possession of a firearm was a "crime of violence" for purposes of applying the ACCA. Garcia-Cruz successfully appealed his sentence to this court. See United States v. Garcia-Cruz, 978 F.2d 537, 543 (9th Cir. 1992) (remanding for resentencing because being felon in possession of firearm not crime of violence for purposes of ACCA), cert. denied, 113 S. Ct. 2453 (1993).
Resentencing occurred on May 14, 1993. The parties disputed which version of U.S.S.G. § 2K2.1 was applicable.*fn2 Garcia-Cruz argued that the 1988 version, in effect at the time of the offense, was applicable and would result in the shortest sentence. The government, however, argued that Garcia-Cruz should be sentenced under either the 1992 version of section 2K2.1, in effect on the date of resentencing, or as a career offender under the 1988 version of U.S.S.G. § 4B1.1, in effect at the time of the offense. The district court rejected the arguments of both parties. Relying on United States v. O'Neal, 937 F.2d 1369 (9th Cir. 1990), the court concluded that the instant offense was a crime of violence for career offender purposes under Section 4B1.1 of the 1988 Guidelines. The court therefore applied the 1990 version of 2K2.1 in effect on the date of the original sentencing, which resulted in the most favorable sentence for Garcia-Cruz under the court's interpretation of the Guidelines.
On appeal, Garcia-Cruz contends the district court erred by concluding that the instant offense was a crime of violence under the 1988 version of section 4B1.1 because O'Neal has been overruled sub silentio by subsequent case law. Alternatively, he argues that subsequent amendments to section 4B1.1 stating that the instant offense is not a crime of violence should apply retroactively because they merely clarify the 1988 version.
Everyone agrees that post November, 1989, mere possession of a firearm is not a crime of violence for purposes of § 4B1.1. However, because of the increase in offense levels for the crime since 1988, Garcia-Cruz would benefit from sentencing under the 1988 Guidelines were we to determine this construction also applied in 1988.
Several changes have been made in the Guidelines and the Commentary since 1988. Our circuit's decisions make clear that mere possession of a firearm after November, 1989 is not a crime of violence under section 4B1.1. United States v. Sahakian, 965 F.2d 740, 741 (9th Cir. 1992). We need not detail those changes here. The significant event that affects our decision as to whether the 1988 Guidelines require a "categorical" or "conduct" analysis is the Supreme Court's decision in Stinson v. United States, 123 L. Ed. 2d 598, 113 S. Ct. 1913 (1993). It makes clear that commentaries to the Guidelines must be given controlling weight unless they are plainly erroneous or inconsistent with the Guidelines. 113 S. Ct. at 1919. "We [The Supreme Court] decide that commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Id. at 1915. Coincidentally, these pronouncements were made in the context of deciding whether possession of a firearm under § 4B1.1 is a crime of violence. The lower court in Stinson simply refused to look at Amendment 433, an amendment to the Commentary that stated flatly that "the term 'crime of violence' does not include the offense of unlawful possession of a firearm by a felon." U.S.S.G. App. C, at 253 (Nov. 1992). Because the Eleventh Circuit declined to consider commentary at all, it did not consider (1) whether prior commentary, if considered, would have dictated the same result as Amendment 433 (an amendment that the Commission said was simply clarifying); (2) whether amendment 433, in any event, should be given retroactive effect; or (3) whether a subsequent amendment, Amendment 469, U.S.S.G. App. C, at 296 (Nov. 1992), that specifically allowed retroactive effect to Amendment 433 should be given effect.
What has lead to uncertainty and confusion as to how we should decide this appeal is our decision in United States v. O'Neal, 937 F.2d 1369 (9th Cir. 1990), a case that has much in common with the Eleventh Circuit's approach in Stinson. The O'Neal court explicitly stated that it did not consider the Commentary:
We find it unnecessary to reach the issue of whether the commentary to Guideline 4B1.2 authorizes inquiry into the underlying facts of O'Neal's instant offense. A categorical analysis suffices to conclude that the offense of being in possession of a firearm by its nature poses a ...