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United States of America v. Daniel Hyun Park

June 17, 2011

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
DANIEL HYUN PARK, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding D.C. No.2:09-cr-00135-RGK-1

The opinion of the court was delivered by: Wallace, Senior Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted November 4, 2010-Pasadena, California

Before: J. Clifford Wallace and Susan P. Graber, Circuit Judges, and Richard Mills, Senior District Judge.*fn1

Opinion by Judge Wallace

COUNSEL

OPINION

In August 2009, Park pleaded guilty to being a felon in possession of a firearm, which is prohibited by 18 U.S.C. § 922(g)(1). The government now appeals from Park's 37-month sentence, arguing that the district court erred when it refused to impose a "crime of violence" sentencing enhancement based on Park's prior conviction for first-degree burglary in California. According to the government, the district court should have applied the enhancement because California first-degree burglary is categorically a "crime of violence" under section 2K2.1(a) of the United States Sentencing Guidelines (U.S.S.G.). We have jurisdiction over the instant appeal pursuant to 18 U.S.C. § 3742(b), and we vacate Park's sentence and remand for resentencing.

I.

[1] Federal firearms defendants, such as Park, are subject to an enhanced Sentencing Guidelines range when they com- mit a firearm offense after "sustaining [one or more] felony conviction[(s)] of . . . a crime of violence." U.S.S.G. § 2K2.1(a) (2009). To determine whether a prior offense is a "crime of violence" under section 2K2.1(a), we look to the definition of that term under U.S.S.G. § 4B1.2(a). United States v. Crews, 621 F.3d 849, 851 (9th Cir. 2010). Section 4B1.2(a), which is otherwise known as the "career offender provision," id. at 856, defines a "crime of violence" as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

This definition is almost identical to the wording used to define the term "violent felony" under the Armed Career Criminal Act of 1984 (ACCA). Compare U.S.S.G. § 4B1.2(a) with 18 U.S.C. § 924(e)(2)(B)(ii) (defining "violent felony" as an offense that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another"). Accordingly, we frequently look to cases interpreting the term "vio-lent felony" to determine whether a particular offense constitutes a "crime of violence" under section 4B1.2(a) of the Guidelines. See Crews, 621 F.3d at 856 (explaining that "the ...


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