Sentencing enhancement for having prior crime of violence conviction was plain error

United States v. Silva, 981 F.3d 794 (10th Cir. November 24, 2020): Silva pleaded guilty to being a felon in possession of a firearm. On appeal, he argued that the district court plainly erred when it used USSG § 2K2.1(a)(4)(A) to enhance his base offense level for allegedly having a prior crime of violence conviction. The panel held Silva satisfied all four plain error elements and reversed his sentence. Section 2K2.1(a)(4)(A)’s application note 10 states the higher offense level for a prior crime of violence conviction applies only when that conviction receives criminal history points under § 4A1.1(a), (b), or (c). Application Note 3(A) to § 4A1.2 says for the purposes of determining a predicate offense, a prior sentence included in a single sentence should be treated as if it received criminal history points if independently it would have received criminal history points. But only one sentence from any single sentence can count as a qualifying predicate, even if more than one conviction was independently eligible to receive points. This is so because two convictions cannot be counted as predicate offenses unless they are separate as described in § 4A1.2(a)(2). Here, Silva’s state convictions for burglary and assault were entered on the same day in 2005. There was no intervening arrest between the two offenses. The state court sentenced him to 2 years of imprisonment on the burglary and fined him for the assault. The PSR treated them as one sentence for criminal history purposes. Since Silva’s assault conviction was imposed over 10 years before he committed the current offense, it was not independently eligible to receive criminal history points (see § 4A1.2(e)(2)), and thus was not a qualifying predicate under § 2K2.1(a)(4)(A). Since the court's error affected its calculation of the guideline imprisonment range, Silva was entitled to a presumption that the 3d and 4th elements of plain error were met as well.