The opinion of the court was delivered by: Arthur J. Schwab United States District Judge
MEMORANDUM OPINION AND ORDER REGARDING OBJECTION RAISED BY GOVERNMENT TO COURT'S TENTATIVE FINDING (DOC. NO. 181)
Before the Court is the United States' Objection to one of the tentative findings, specifically the calculation of the Defendant's base offense level, issued by this Court on April 26, 2013 (doc. no. 178). Doc. No. 181. Also before the Court, is Defendant's Brief in Opposition to the Government's Objection to Defendant's base offense level calculation. Doc. No. 182. The Court will adopt its tentative finding on this issue as final for the reasons set forth herein.
Initially, the Final Presentence Report ("PSR") prepared by the Probation Office listed Defendant's base offense level as "20" under United States Sentencing Guidelines § 2K2.1, "because the offenses involved a semiautomatic weapon that is capable of accepting a large capacity magazine[.]" Doc. No. 134, ¶ 23.
After the Final Presentence Report was filed, both the Government and Defendant objected to paragraph 23. The Government contended that Defendant's base offense level of "20" was still appropriate under U.S.S.G. § 2K2.1 because Defendant had committed the instant offenses subsequent to committing a crime of violence. Doc. No. 141. Defendant argued that the base offense level of "18" was the more appropriate number because no semiautomatic weapon capable of accepting a large capacity magazine was at issue. Doc. no. 142.
The probation office then filed an Addendum to the PSR and stated that the base offense level was correctly stated as "20," albeit not for the semiautomatic weapon reason it had previously proffered, but because Defendant had "committed the instant offense subsequent to sustaining one felony conviction for a crime of violence (the fleeing and eluding a police officer, found at page 16 [of doc. no. 134], paragraph 50)." Doc. No. 153.
The Court issued Tentative Findings and Rulings on this issue (as well as other issues raised by Defendant), and tentatively determined Defendant's base offense level should have been calculated as "18" and not "20." Doc. No. 178. In making this tentative ruling on Defendant's base offense level, the Court stated as follows:
The base offense level calculation is governed in part by U.S.S.G. §2K2.1. That section reads in pertinent part:
2K2.1. Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition
(a) Base Offense Level (Apply the Greatest):
(A) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence ...