PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4282

SHONITHA LYNETTE KNIGHT,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Frank D. Whitney, District Judge.

(3:06-cr-00209-FDW-1)

Argued: March 26, 2010

Decided: June 4, 2010

Before TRAXLER, Chief Judge, and GREGORY and

AGEE, Circuit Judges.

Affirmed by published opinion. Chief Judge Traxler wrote the

opinion, in which Judge Gregory and Judge Agee joined.

COUNSEL

ARGUED: Ann Loraine Hester, FEDERAL DEFENDERS

OF WESTERN NORTH CAROLINA, INC., Charlotte, North

Carolina, for Appellant. Matthew Theodore Martens, OFFICE

OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Kevin Tate, FEDERAL DEFENDERS OF

WESTERN NORTH CAROLINA, INC., Charlotte, North

Carolina, for Appellant. Edward R. Ryan, Acting United

States Attorney, Kelli H. Ferry, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Charlotte, North Carolina, for Appellee.

OPINION

TRAXLER, Chief Judge:

Shonitha Knight pleaded guilty to a felon-in-possession

charge, see 18 U.S.C.A. § 922(g) (West 2000), and was sentenced to 60 months’ imprisonment. Knight appeals, raising

various challenges to the calculation of her Guidelines sentence. Finding no error that warrants reversal, we affirm.

I.

Knight lived in a hotel in Gastonia, North Carolina. Police

knocked on her door after getting reports about an unusual

amount of activity around her room; Knight opened the door

and consented to a search. The police found some marijuana

hidden in the toilet and a loaded pistol with obliterated serial

numbers under the mattress. There were three men in the

hotel room when the police arrived, but Knight did not suggest that the gun belonged to any of the men. Instead, Knight

told the police that she bought the gun for protection. Knight

also admitted that because she had a prior felony conviction,

she knew she was not supposed to have a gun.

Knight was arrested on a federal felon-in-possession charge

on December 8, 2006, and was released on bond and placed

under pre-trial supervision. She failed to appear at a calendar

call in May 2007, and she stopped contacting her attorney and

2 UNITED STATES v. KNIGHT
pre-trial services around the same time. Knight was arrested

almost a year later in the Southern District of Texas and was

brought back to North Carolina.

Knight pleaded guilty to the felon-in-possession charge.

Her advisory Guidelines sentencing range as calculated in the

presentence report and accepted by the district court was 92-

115 months. The district court, however, concluded that a

downward variance was appropriate and sentenced Knight to

60 months. 

II.

Knight first contends that the district court improperly

relied on a prior arson conviction to increase her base offense

level. We disagree.

Sentencing for a felon-in-possession charge is governed by

U.S.S.G. § 2K2.1 (2007), which sets a base offense level of

20 if "the defendant committed any part of the instant offense

subsequent to sustaining one felony conviction of either a

crime of violence or a controlled substance offense." Id.

§ 2K2.1(a)(4)(A). The application notes specify that "‘Crime

of violence’ has the meaning given that term in § 4B1.2(a)

and Application Note 1 of the Commentary to § 4B1.2." Id.

cmt. n.1 Section 4B1.2 defines "crime of violence" as "burglary of a dwelling, arson, or extortion, [a crime that] involves

use of explosives, or otherwise involves conduct that presents

a serious potential risk of physical injury to another."

U.S.S.G. § 4B1.2(a)(2).

Knight has a prior conviction in Texas for second-degree

arson. See Tex. Penal Code Ann. § 28.02. Although the

Guidelines specify that burglary, arson, and extortion are

crimes of violence, the Guidelines do not define those crimes,

and the offense-level enhancement is not automatically applicable in every case where a defendant’s record shows a conviction for one of the listed crimes. Instead, to determine

UNITED STATES v. KNIGHT 3
whether Knight’s arson conviction qualifies under

§ 4B1.2(a)(2), we apply the approach set forth by the

Supreme Court in Taylor v. United States, 495 U.S. 575

(1990), which requires us to ask whether the state crime substantially corresponds to the contemporary, generic definition

of the crime at issue.1See id. at 589, 590 (concluding that,

with regard to burglary as a predicate offense, Congress "had

in mind a modern ‘generic’ view of burglary, roughly corresponding to the definitions of burglary in a majority of the

States’ criminal codes," "regardless of technical definitions

and labels under state law"); see also United States v. Whaley,

552 F.3d 904, 907 (8th Cir. 2009) ("Consistent with Taylor,

we hold that an offense constitutes arson . . . if . . . its statutory definition substantially corresponds to generic arson

. . . ." (alteration and internal quotation marks omitted));

United States v. Hathaway, 949 F.2d 609, 610 (2d Cir. 1991)

(per curiam) ("[I]f Vermont’s definition of third degree arson

substantially corresponds to a modern generic definition of

arson, then appellant’s conviction may be counted as ‘arson’

for purposes of the federal sentencing statute."). When determining the generic, contemporary definition of a crime, we

look to the general consensus of contemporary state law. See

Taylor, 495 U.S. at 589.

In its common-law form, the crime of arson was defined as

the "malicious burning of the dwelling house of another."

John W. Poulos, The Metamorphosis of the Law of Arson, 51

Mo. L. Rev. 295, 299 (1986). The common-law offense was

intended "to protect the dwellers from the risks of injury or

death created when the dwelling house is burned." Id. at 297.

The contemporary crime of arson, however, is largely a crea1Although Taylor involved the meaning of "crime of violence" under

the Armed Career Criminal Act rather than under the Guidelines, the language in the Guidelines is essentially identical to the ACCA, and we have

consistently looked to Taylor and ACCA cases when considering the issue

under the Guidelines. See, e.g., United States v. Seay, 553 F.3d 732, 737

(4th Cir.), cert. denied, 130 S. Ct. 127 (2009). 

4 UNITED STATES v. KNIGHT
ture of statute, and those statutes have significantly altered the

scope of the crime, focusing on the protection of property as

much as people. In most jurisdictions, the crime is no longer

limited to dwellings, or even structures. Instead, a clear

majority of the states extend the crime of arson to the burning

(or damaging by fire or explosion) of personal property. See

United States v. Velasquez-Reyes, 427 F.3d 1227, 1230-31 &

n.2 (9th Cir. 2005) (noting that 36 states extend arson to the

burning of personal property); Poulos, 51 Mo. L. Rev. at 384

(noting that in 1986, 31 states defined arson to include the

burning of any personal property). Given this statutory development, we agree with the other circuits that have considered

the issue and conclude that the modern, generic crime of

arson involves the burning of real or personal property.2See

United States v. Velez-Alderete, 569 F.3d 541, 544 (5th Cir.

2009) (per curiam) ("[T]he consensus among state statutes . . .

defines contemporary arson as involving the malicious burning of property, personal or real, without requiring that the

burning threaten harm to a person."); Whaley, 552 F.3d at 907

("[T]he generic offense of arson, for purposes of the sentence

enhancement in § 924(e), has as elements the malicious burning of real or personal property of another."); Velasquez2The formulations of the state arson statutes vary in many respects, such

as the description of the underlying conduct compare, e.g., Cal. Penal

Code §§ 451 ("set[ting] fire to or burn[ing]") with, e.g., Ind. Code § 35-43-

1-1 (damaging "by means of fire, explosive or destructive device"); the

level of intent required, or whether the value of the property damaged

must cross a particular threshold. We do not believe that these variations

operate to prevent a consensus on the modern, generic crime of arson. See

United States v. Velasquez-Reyes, 427 F.3d 1227, 1230-31 (9th Cir. 2005)

("Although some of these statutes add a limitation that the personal property be burned for insurance proceeds, or set a minimum damage limitation, these limits do not disrupt the interstate consensus that the burning

of personal property constitutes arson." (citations and internal quotation

marks omitted)); accord United States v. Whaley, 552 F.3d 904, 906 n.3

(8th Cir. 2009); cf. Taylor v. United States, 495 U.S. 575, 589, 590 (1990)

(focusing on whether the statute at issue "roughly correspond[s]" to the

"modern generic view" of the underlying crime, "regardless of technical

definitions and labels under state law" (internal quotation marks omitted)).

UNITED STATES v. KNIGHT 5
Reyes, 427 F.3d at 1230, 1231 (explaining that "[t]he modern

generic definition of arson includes a ‘willful and malicious

burning’ of property," and noting the "‘interstate consensus’

that the burning of personal property constitutes arson"); see

also Hathaway, 949 F.2d at 610 ("The essential element of

third degree arson in Vermont is a wilful and malicious burning of personal property. Appellant does not and could not

argue that this is an unusual definition of arson." (citation

omitted)).

Knight does not disagree with this definition. Instead, she

contends that the Texas statute, which includes in its definition the burning of any vegetation on open land, see Tex.

Penal Code Ann. § 28.02(a)(1), is broader than the generic

definition of arson. Knight thus argues that the government

was required to establish, through appropriate documents, that

she was actually convicted of a crime that meets the generic

definition. See, e.g., Johnson v. United States, 130 S. Ct.

1265, 1273 (2010) ("When the law under which the defendant

has been convicted contains statutory phrases that cover several different generic crimes, some of which [qualify as predicate offenses] and some of which do not, the modified

categorical approach . . . permits a court to determine which

statutory phrase was the basis for the conviction by consulting

the trial record—including charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from a bench trial, and jury instructions and

verdict forms." (internal quotation marks omitted)). Knight

contends that the government did not present such documents

and that the district court therefore erred by using the arson

conviction to increase her base offense level.

We do not believe that the Texas statute is broader than the

generic definition simply because it includes in its definition

the burning of vegetation. Several states similarly define

arson to explicitly include the burning of grass, brush, or other

vegetation,3 and many more states define arson as the burning

3

See Cal. Penal Code §§ 450(b), 451; Idaho Code Ann. §§ 18-801(6),

18-804; Miss. Code Ann. § 97-17-13(1); Mont. Code Ann. § 45-6-

6 UNITED STATES v. KNIGHT
of "property" or "any property,"4

 a definition that would certainly seem broad enough to encompass the burning of

another person’s vegetation. Given the current view of the

states as to the kind of activity that constitutes arson, we have

no difficulty concluding, as has the Fifth Circuit, that the

Texas arson statute substantially corresponds to the generic,

contemporary definition of arson. See Velez-Alderete, 569

F.3d at 544 (concluding that "the full range of conduct prohibited by the Texas arson statute falls under the generic, contemporary meaning of arson" such that a conviction under the

Texas statute is a crime of violence for Guidelines purposes).

The district court therefore did not err in relying on Knight’s

arson conviction to increase her base offense level to 20.

III.

Knight also contends that the district court erred by concluding that, in light of the obstruction-of-justice enhancement she received for absconding, see U.S.S.G. § 3C1.1,5

 she

was not entitled to an acceptance-of-responsibility reduction.

We disagree.

The Guidelines authorize an offense-level reduction for a

defendant who "clearly demonstrates acceptance of responsi103(1)(a); N.J. Stat. Ann. § 2C:17-1(a)(5) & (f); Ohio Rev. Code Ann.

§ 2909.03(A)(5); Okla. Stat. tit. 21, § 1403(A); S.C. Code Ann. 16-11-

150; Wash. Rev. Code § 9A.48.030. 

4

See Ark. Code Ann. § 5-38-301(a)(1); Col. Rev. Stat. § 18-4-103(1);

720 Ill. Comp. Stat. 5/20-1; Ind. Code § 35-43-1-1; La. Rev. Stat. Ann.

§ 14:52(A); Me. Rev. Stat. Ann. tit. 17-A, § 802(1); Minn. Stat. Ann.

§ 609.562; Neb. Rev. Stat. § 28-504(1); N.H. Rev. Stat. Ann. § 634:1(I);

N.M. Stat. § 30-17-5(A); N.Y. Penal Law § 150.01; Or. Rev. Stat.

§ 164.315; R.I. Gen. Laws § 11-4-4; S.D. Codified Laws § 22-33-9.2(2);

Tenn. Code Ann. § 39-14-303(a); Utah Code Ann. § 76-6-102; Ver. Stat.

Ann. tit. 13, § 504; W. Va. Code § 61-3-3; Wi. Stat. § 943.03; Wy. Stat.

Ann. § 6-3-102(a). 

5Knight does not challenge the obstruction enhancement on appeal. 

UNITED STATES v. KNIGHT 7
bility for his offense," U.S.S.G. § 3E1.1(a), and a timely

guilty plea generally is a strong indication that the defendant

has in fact accepted responsibility, see id. cmt. n.3 ("Entry of

a plea of guilty prior to the commencement of trial . . . will

constitute significant evidence of acceptance of responsibility"). As the Guidelines explain, however, conduct that results

in an obstruction of justice enhancement "ordinarily indicates

that the defendant has not accepted responsibility for his criminal conduct." Id. cmt. n.4 (emphasis added). Nonetheless, in

"extraordinary cases," an acceptance-of-responsibility reduction may be appropriate even in the face of an obstruction-ofjustice enhancement. Id. The district court here concluded that

Knight’s was not an extraordinary case, and the court therefore refused to give Knight credit for accepting responsibility

even though she pleaded guilty to the felon-in-possession

charge.

On appeal, Knight contends that the district court improperly viewed her acceptance of responsibility as beginning

when she admitted to the police searching her hotel room that

she had a gun. She argues that the district court should have

considered the totality of the circumstances and should have

concluded that she was entitled to the offense-level reduction

because her obstruction—absconding from pre-trial services

—was not inconsistent with her decision to accept responsibility, which occurred when she pleaded guilty, not when she

confessed during the search of her hotel room. For this argument Knight draws support from cases from the Sixth and

Ninth Circuits which seem to suggest that unless the obstruction of justice takes place after the defendant has agreed to

plead guilty, the defendant is entitled to the acceptance-ofresponsibility reduction. See United States v. Jeter, 191 F.3d

637, 641 (6th Cir. 1999) ("[T]here [must] be some conduct

that the court can find is inconsistent with that specific acceptance of responsibility referred to in the Commentary, namely

the acceptance of the guilty plea. To be denied an acceptance

of responsibility reduction for similar crimes committed

before federal indictment without some specific finding that

8 UNITED STATES v. KNIGHT
the crimes are inconsistent with that acceptance of responsibility is contrary" to the Guidelines.); United States v. Hopper, 27 F.3d 378, 383 (9th Cir. 1994) ("[A]s long as the

defendant’s acceptance of responsibility is not contradicted by

an ongoing attempt to obstruct justice, the case is an extraordinary case within the meaning of Application Note 4 and

simultaneous adjustments under §§ 3C1.1 and 3E1.1 are permissible." (emphasis added)).

To the extent that Knight is arguing for the application of

a bright-line rule that an acceptance-of-responsibility reduction should be applied so long as the defendant does not

obstruct justice after agreeing to plead guilty, as suggested by

Hopper and Jeter, her position is inconsistent with our case

law, which generally treats the question of whether a defendant who obstructed justice is entitled to an acceptance-ofresponsibility reduction as a largely factual matter to be determined by the district court. See United States v. Miller, 77

F.3d 71, 74-75 (4th Cir. 1996); United States v. Murray, 65

F.3d 1161, 1166 (4th Cir. 1995); United States v. Hicks, 948

F.2d 877, 885 (4th Cir. 1991); see also United States v. Hudson, 272 F.3d 260, 263-64 (4th Cir. 2001) (accepting the district court’s factual determination that the defendant fled

because he was scared when he learned the government

would not seek a substantial-assistance reduction in his sentence, but concluding, as a matter of law, that defendant’s fear

of the sentence he would receive did not make the case

extraordinary). Moreover, it is clear to us that, contrary to

Knight’s argument, the district court did consider the totality

of the circumstances and did not conclude that the only relevant acceptance of responsibility was that which occurred

when Knight admitted in the hotel room that the gun was hers.

The government reviewed all of the facts of the case and

specifically argued to the district court that the "totality of the

circumstances" showed that Knight was not entitled to acceptance of responsibility. J.A. 34. The district court, after "review[ing] the factual record in th[e] case," J.A. 39, properly

UNITED STATES v. KNIGHT 9
observed that the issue boiled down to the question of whether

the facts were extraordinary so as to warrant an acceptance

reduction in the face of an obstruction enhancement.

In the course of answering that question, the court observed

that Knight’s acceptance of responsibility "started" in the

hotel room, J.A. 41, an observation that was certainly correct

as a factual matter. There is nothing in the court’s statements,

however, to suggest that the court failed to recognize that the

guilty plea itself was also an indication of Knight’s acceptance of responsibility. The court simply concluded, after considering all of the facts, that Knight was not entitled to an

acceptance-of-responsibility reduction: "[I]nstead of either

entering a plea or adjudicating the case, [Knight] decided to

run away from the justice system. And she was only brought

back into the justice system by an arrest, not by surrender. So

she’s not entitled to the two-level reduction both legally and

factually." J.A. 41-42. Given the facts of this case, we cannot

conclude that the district court clearly erred when reaching

this conclusion. See Miller, 77 F.3d at 74 ("The district

court’s decision whether to grant a two-level reduction for

acceptance of responsibility is a factual determination that we

review for clear error."); see also United States v. Hawley, 93

F.3d 682, 689-90 (10th Cir. 1996) (affirming denial of acceptance of responsibility to defendant who received an obstruction of justice enhancement for pre-guilty-plea violation of

appearance bond: "Conduct amounting to escape or violation

of an appearance bond is certainly evidence of failure to

accept responsibility, and this fact alone provides adequate

foundation for the district court’s decision.").

IV.

Using the Guidelines Sentencing Manual in effect at the

time of sentencing, the district court applied a four-level

enhancement to Knight’s base offense level because the gun

she possessed had an obliterated serial number. See U.S.S.G.

§ 2K2.1(b)(4) (2007). The Sentencing Manual in effect at the

10 UNITED STATES v. KNIGHT
time Knight committed the offense, however, provided for a

two-level enhancement for possession of a weapon with obliterated serial numbers. See U.S.S.G. § 2K2.1(b)(4) (2005).

The court’s application of the 2007 manual yielded a total

offense level of 26, with an advisory sentencing range of 92-

115 months, while application of the 2005 manual would have

resulted in an offense level of 24 and an advisory sentencing

range of 77-96 months. Knight therefore contends that the

court’s application of the 2007 manual violated the Ex Post

Facto clause and that resentencing is required. See United

States v. Heater, 63 F.3d 311, 331 (4th Cir. 1995)

("[A]mendments to the Guidelines occurring after a defendant’s offense but before sentencing should not be applied if

doing so would increase the sentence, because that would violate the Ex Post Facto Clause . . . ."); U.S.S.G. § 1B1.11(b)(1)

(2007) ("If the court determines that use of the Guidelines

Manual in effect on the date that the defendant is sentenced

would violate the ex post facto clause of the United States

Constitution, the court shall use the Guidelines Manual in

effect on the date that the offense of conviction was committed.").

Knight did not raise this issue below, and she concedes that

we must therefore review her claim for plain error only. See

Fed. R. Crim. P. 52(b) ("A plain error that affects substantial

rights may be considered even though it was not brought to

the court’s attention."). Before we will consider reversing

under plain-error review, "(1) there must be an error; (2) the

error must be plain, meaning obvious or clear under current

law; and (3) the error must affect substantial rights." United

States v. Wallace, 515 F.3d 327, 332 (4th Cir. 2008). It is the

appellant, not the government, who bears the burden of establishing each of these elements. See United States v. Massenburg, 564 F.3d 337, 343 (4th Cir. 2009). And even if the

defendant establishes each of these elements, "[t]he decision

to correct the error lies within our discretion, and we exercise

that discretion only if the error ‘seriously affects the fairness,

UNITED STATES v. KNIGHT 11
integrity or public reputation of judicial proceedings.’" Id.

(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).

The government first argues that there was no error, plain

or otherwise, because application of the Guidelines postBooker simply does not implicate the Ex Post Facto clause.

See United States v. Demaree, 459 F.3d 791, 795 (7th Cir.

2006) (concluding that since Booker and its progeny gave

sentencing courts "unfettered" freedom in imposing sentence,

application of a more onerous Guideline provision could no

longer be viewed as creating an ex post facto problem: "[T]he

ex post facto clause should apply only to laws and regulations

that bind rather than advise."). This court, however, has

recently rejected the Demaree analysis and reaffirmed our

pre-Booker view that application of a post-offense Guidelines

Manual that increases the advisory sentencing range violates

the Ex Post Facto clause. See United States v. Lewis, ___ F.3d

___, No. 09-4343 (4th Cir. filed May 27, 2010). Lewis thus

forecloses the government’s claim that there was no error.

Alternatively, the government contends that any error by

the district court was not plain. The government argues that,

as evidenced by the Seventh Circuit’s decision in Demaree,

Booker called into doubt the legal premise upon which Heater’s Ex Post Facto analysis was based, and that the district

court therefore did not plainly err by applying the 2007 Manual. We disagree. Even if the law was uncertain at the time of

sentencing, Lewis has now settled the question, thus making

the error plain. See Johnson v. United States, 520 U.S. 461,

468 (1997) (explaining that an error is plain if the legal issue

is settled at the time of appeal, even if it was not settled at the

time of trial); United States v. Cannady, 283 F.3d 641, 648

(4th Cir. 2002) ("Because the law changed between the time

of the plea and this appeal, we treat the district court’s nowincorrect information as plain error."). We therefore conclude

that the district court’s application of the 2007 manual was

plain error. The question, then, is whether this error affected

Knight’s substantial rights.

12 UNITED STATES v. KNIGHT
An error affected a defendant’s substantial rights if the

error "affected the outcome of the district court proceedings."

Olano, 507 U.S. at 734; accord United States v. McClung,

483 F.3d 273, 276 (4th Cir. 2007). To satisfy this requirement

in the sentencing context, the defendant must show that he

would have received a lower sentence had the error not

occurred. See United States v. White, 405 F.3d 208, 223 (4th

Cir. 2005) (explaining that district court’s erroneous application of the guidelines as mandatory affected his substantial

rights only if the record reveals a "nonspeculative basis for

concluding that the treatment of the guidelines as mandatory

affected the district court’s selection of the sentence imposed"

(internal quotation marks and alteration omitted)); see also,

e.g., United States v. John, 597 F.3d 263, 284-85 (5th Cir.

2010) ("A sentencing error affects a defendant’s substantial

rights if he can show a reasonable probability that, but for the

district court’s misapplication of the Guidelines, he would

have received a lesser sentence." (internal quotation marks

and alteration omitted)).

Knight contends that the district court’s comparison of her

to another defendant sentenced by the district court that same

day shows that the court’s error affected the sentence she

received. The district court noted that the other defendant had

a much worse record than Knight and that the government

gave that defendant a "very favorable deal . . . that reduced

his exposure from something in the neighborhood of 20 to 25

years down to ten years." J.A. 66. As the court explained,

"that makes the Court compare you to him just because of the

proximity in time. And you are not as dangerous a threat to

society as he was." J.A. 66. Relying on these comments,

Knight argues that the district court sentenced the other defendant to "roughly half" of his Guideline range and then sentenced Knight to "roughly half" of the (incorrectly calculated)

Guidelines range—60 months, against a sentencing range of

92-115 months. Brief of Appellant at 25. Knight therefore

contends that if the district court had correctly calculated her

offense level, the court would have sentenced her to "roughly

UNITED STATES v. KNIGHT 13
half" of the 77-96 month range, which would have been lower

than the 60-month sentence she received.

If the court had explicitly connected Knight’s sentence to

the sentence given to the other defendant—for example, by

saying that it believed Knight was entitled to a similar sentence reduction—that might well have been enough to show

that Knight would have received a lower sentence but for the

error in calculating the advisory range. Similarly, it might

have been enough to satisfy Knight’s plain-error burden if the

district court had explicitly connected the 60-month sentence

ultimately imposed to the advisory range—for example, by

stating that it intended to impose a sentence that was a certain

percentage of the low or high end of the advisory range. The

district court, however, made no such statements, and it is

pure speculation to assign to the court’s limited statements

about the other defendant the meaning urged by Knight. See

White, 405 F.3d at 223 (requiring under plain-error review a

"nonspeculative basis" for concluding that the challenged

error "affected the district court’s selection of the sentence

imposed" (emphasis added; alteration and internal quotation

marks omitted)). And when we consider the entirety of the

district court’s statements at sentencing, it becomes apparent

that the district court imposed the 60-month sentence to

ensure that Knight had the opportunity to receive intensive

vocational training that the court believed would benefit her.

The court noted that Knight had been working in the "adult

entertainment" field, which was not necessarily the best

choice for a convicted felon like Knight. See J.A. 67 ("Being

in adult entertainment might be a lucrative business but it’s

not necessarily a good business for someone that has a [felony

conviction], because . . . . sometimes close to adult entertainment is illegal conduct . . . ."). The court believed that Knight

needed to receive vocational training while in prison so that

she could get "away from [a] business that . . . can be close

to criminal conduct." J.A. 67. The court stated that if Knight

took the opportunity seriously, the Bureau of Prisons would

14 UNITED STATES v. KNIGHT
provide her with "vocational and educational training that

[would] help [her] re-enter society as a productive member of

society." J.A. 68. The district court explained, however, that

it needed to impose a sentence "that gives you enough time

in prison to learn a new vocation," J.A. 67, noting that "if you

sit in prison for a year or two like you have in the past, a yearlong imprisonment isn’t adequate to really truly learn a vocational skill to the degree that would make you employable."

J.A. 68. The court concluded that a variance sentence was

appropriate because the "Guideline range is high for the

nature and circumstances of the particular offense and the history and characteristics of this defendant," J.A. 68, but noted

that

it’s got to be a variance that still provides for a

meaningful punishment and a meaningful period for

training and vocational skills, for the learning of

vocational skills that will allow Ms. Knight to return

and re-enter into society [as] a productive member of

society. So the Court intends to vary to a degree that

it thinks will provide for that rehabilitation training,

as well as the need to punish the defendant and to

deter the defendant from further criminal conduct.

J.A. 68-69. The court then sentenced Knight to 60 months’

imprisonment, "a sentence [the court] believe[d was] sufficient but not greater than necessary to accomplish the goals

of sentencing and the sentencing factors." J.A. 69.

As we have noted, this issue is before us on plain-error

review, which means that there must be a nonspeculative

basis in the record to conclude that the district court would

have imposed a lower sentence but for the error in calculating

Knight’s offense level. We see nothing in the record sufficient

to satisfy this burden. To the contrary, the district court’s

explanation of the sentence suggests that the court would not

have imposed a sentence of less than 60 months even if the

correct sentencing range had been used. Because Knight canUNITED STATES v. KNIGHT 15
not demonstrate that the sentencing error violated her substantial rights, we cannot correct the error.

V.

To summarize, we conclude that the district court properly

treated Knight’s arson conviction in Texas as a crime of violence under U.S.S.G. § 2K2.1(a)(4)(A), and we find no error

in the district court’s decision to deny Knight an acceptanceof-responsibility reduction after increasing her offense level

for obstruction of justice. And while we conclude that the district court erred by applying the four-level enhancement for

obliterated serial numbers found in the 2007 Guidelines manual rather than the two-level enhancement contained in the

2005 manual, Knight cannot show under plain-error review

that she was prejudiced by that error. Accordingly, for the

foregoing reasons, Knight’s sentence is hereby affirmed.

AFFIRMED 

16 UNITED STATES v. KNIGHT