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United States v. Damon

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Before Lynch, Chief Judge, Souter, Associate Justice, *fn1 and Selya, Circuit Judge.

Defendant James Damon pleaded guilty to the underlying offense of felon firearm possession in violation of a provision of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 922(g)(1). He appeals his sentence of seventy months’ imprisonment and three years of supervised release. Damon received two sentencing enhancements under U.S.S.G. § 2K2.1, the sentencing guideline applicable to firearm offenses. The district court held that under U.S.S.G. § 2K2.1(a)(1), Damon had two prior felony convictions for either controlled substance offenses or crimes of violence. Damon received another enhancement under U.S.S.G. § 2K2.1(a)(1) because his offense involved three or more firearms. He challenges both enhancements. We affirm the sentence.

As to the first enhancement, Damon argues that when the Sentencing Commission used the phrase “punishable by imprisonment by a term of one year or more” to define the Sentencing Guidelines terms “felony conviction” and “controlled substance offense,” U.S.S.G. § 2K2.1 cmt. n.1, it intended to incorporate the definition of that phrase in 18 U.S.C. § 921(a)(20)(B), a provision of the ACCA. The ACCA definition excludes state convictions that the state classifies as misdemeanors if they are punishable by less than two years’ imprisonment. Had the ACCA definition applied, Damon would have only been sentenced based on a single prior felony conviction for a crime of violence. We hold that the Commission did not intend to use the ACCA’s definition and that Damon’s second conviction was clearly a “felony conviction” for a “controlled substance offense” based on the definitions of those terms the Commission adopted.

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