Case: 18-30922      Document: 00515103558         Page: 1    Date Filed: 09/04/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 18-30922                            FILED
                                  Summary Calendar                  September 4, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

v.

KENNETH READO,

                                                 Defendant-Appellant.


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:18-CR-6-1


Before JONES, CLEMENT, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Kenneth Reado appeals the 92-month prison term and three-year term
of supervised release imposed on his guilty plea conviction for possessing a
firearm after a felony conviction. We vacate and remand for resentencing.
       The district court assigned Reado a base offense level of 20 based on 2011
predicate convictions under Louisiana law for simple burglary of an inhabited
dwelling. See LA. REV. STAT. ANN. 14:62.2 (1978). Because Reado did not object


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-30922     Document: 00515103558      Page: 2    Date Filed: 09/04/2019


                                  No. 18-30922

in the district court, we review for plain error. See Puckett v. United States,

, 136 (2009); see also FED. R. CRIM. P. 52(b).
      A defendant convicted of possessing a firearm after a felony conviction
for a crime of violence is assigned a base offense level of 20.           U.S.S.G.
§ 2K2.1(a)(4); see U.S.S.G. § 4B1.2(a).     But if there was no prior crime of
violence (and no other basis for enhancement), the base offense level is 12.
§ 2K2.1(a)(7).   Because no other basis for enhancement exists here, the
guidelines sentencing range falls to 41 to 51 months if the crime-of-violence
enhancement is inapplicable. See U.S.S.G., Ch.5, Pt.A, Sentencing Table.
      Here the enhancement is inapplicable because, due to a guidelines
amendment effective August 1, 2016, simple burglary of an inhabited dwelling
is no longer a crime of violence under U.S.S.G. § 4B1.2(a). See U.S.S.G., App.
C, Amendment 798. The amendment eliminated burglary of a dwelling as an
enumerated offense. Id.; see U.S.S.G. § 4B1.2(a)(2). And Louisiana simple
burglaries do not qualify as crimes of violence under § 4B1.2(a)(1), which
applies to crimes that have “as an element the use, attempted use, or
threatened use of physical force against the person of another.” Cf. United
States v. O’Connor, 

, 896 (5th Cir. 2011). Thus, the error is not
subject to reasonable dispute, i.e., it is plain. See 

.
      The error resulted in a guidelines sentencing range of 92 to 115 months,
instead of the correct range of 41 to 51 months. This error affected Reado’s
substantial rights. See Molina-Martinez v. United States, 

, 1346
(2016). Indeed, the district court explicitly tied the 92-month sentence to the
(incorrect) guidelines range. We see no reason not to exercise our discretion to
vacate and remand. See Rosales-Mireles v. United States, 

, 1911
(2018).
      SENTENCE VACATED; REMANDED FOR RESENTENCING.



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