* After examining the briefs and appellate record, t his panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. **See** Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### October 3, 2005

Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 04-4252 ALLAN WHITEHEAD, Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH (D.C. No. 1:03-CR-83 DAK)

Submitted on the Briefs: * Julie George, Salt Lake City, Utah, for the defenda nt-appellant. Dave Backman, Assistant United States Attorney and Paul M. Warner, United States Attorney, District of Utah, Salt Lake City, Utah, for the plaintiff-appellee.

Before BRISCOE, LUCERO , and MURPHY , Circuit Judges.

BRISCOE , Circuit Judge.2

Defendant Allan Whitehead pled guilty to possessionof a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) , and was sentenced to a term of imprisonment of forty-one months. Whitehead nowappeals, claiming the district court erred in calculating his base offens e level. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. On June 19, 2003, a six-count indictment was return ed against Whitehead charging him with five firearms-related offenses an d one drug-related offense. On July 26, 2004, Whitehead pled guilty to Count 5 of the indictment, which alleged that “[o]n or about April 18, 2003,” Whiteh ead, “having been convicted of a crime punishable by imprisonment for more than on e (1) year, did knowingly possess, in and affecting interstate commerce, a fi rearm, to wit: a 9 mm handgun; in violation of 18 U.S.C. § 922(g)(1).” ROA, Vol. I, Doc. 1, at 3. A presentence investigation report (PSR) was subsequently prepare d that proposed the imposition of a base offense level of 20 pursuant t o U.S.S.G. § 2K2.1(a)(4)(B) because, in pertinent part, Whitehead “possessed a prohibited firearm described in 18 U.S.C. § 921(a)(30).” ROA, Vol. III, PSR, Adden dum at 1. At the sentencing hearing on October 6, 2004, Whitehead objected to t his base offense level, arguing that, because § 921(a)(30) had been repeale d, § 2K2.1(a)(4)(B) was inapplicable. The district court rejected Whitehea d’s argument, adopted the3

PSR’s calculations, and sentenced Whitehead to forty-one months’ imprisonment, a term at the bottom of the guideline range. Whitehead renews his argument on appeal, contending the district court should have imposed a lower base offense level beca use, at the time of his sentencing, the firearm he was convicted of possess ing was not, and indeed could not have been, listed in § 921(a)(30). Because Whi tehead’s argument involves the legal interpretation of § 2K2.1(a)(4)(B) of the Guidelines, we review the district court’s ruling de novo. See United States v. Wilson , 416 F.3d 1164, 1167 (10th Cir. 2005). Section 2K2.1(a)(4)(B) of the Sentencing Guidelines requires imposition of a base offense level of twenty “if . . . the offens e involved a firearm described in . . . 18 U.S.C. § 921(a)(30) . . . and the defendant . . . was a prohibited person at the time [he] committed the instant offense . . . . ” It is undisputed that Whitehead was a convicted felon, and thus qualified as a “pro hibited person,” at the time he committed the offense of conviction. Therefore, hi s appeal hinges on whether the offense of conviction “involved a firearm described in . . . 18 U.S.C. § 921(a)(30).” At the time of Whitehead’s offense (i.e., April 18, 2003), § 921(a)(30) defined the term “semiautomatic assault weapon.” T hat definition included various specific firearms as well as firearms that bore certain specific4

characteristics. It is uncontroverted that the fir earm Whitehead was convicted of possessing fell within this definition. Notably, h owever, § 921(a)(30) was repealed after the Violent Crime Control and Law En forcement Act of 1994, 108 Stat. 1796, expired on September 13, 2004 (approxim ately three weeks before Whitehead was sentenced). Whitehead contends that, because § 921(a)(30) had b een repealed at the time of his sentencing, § 2K2.1(a)(4)(B) was effect ively inapplicable and the district court therefore should have imposed a lowe r base offense level. We disagree. The language of § 2K2.1(a)(4)(B), in particular its reference to whether “the offense [of conviction] involved a firearm des cribed in . . . § 921(a)(30),” was clearly intended, in our view, to focus on the circumstances in existence at the time the offense of conviction was committed. See generallyUnited States v. Gay , 240 F.3d 1222, 1231 (10th Cir. 2000) (noting thatSentencing Guidelines, like criminal statutes, “are given their fair meani ng in accord with the manifest intent of the lawmakers.”) (internal quotations omi tted). In other words, just as it asks whether the defendant was a prohibited person at the time he committed the offense of conviction, § 2K2.1(a)(4)(B) focuses on whether, at the time the offense of conviction was committed, the firearm in volved in the offense fell within the definition of “semiautomatic assault weapon” outlined in § 921(a)(30). Our interpretation is bolstered by the fact that, i n the most recent version of5

the Guidelines Manual (i.e., the version that becam e effective on November 1, 2004), the Sentencing Commission made no changes to the wording of § 2K2.1(a)(4)(B). Thus, notwithstanding the repeal o f § 921(a)(30), § 2K2.1(a)(4)(B) continues to require the imposition of a base offense level of twenty if the defendant was a prohibited person at the time he committed the offense and the firearm involved in the offense fel l within the definition of “semiautomatic assault weapon” outlined in § 921(a) (30). Had the Sentencing Commission intended § 2K2.1(a)(4)(B) to focus on th e status of the firearm at issue at the time of sentencing rather than at the time the offense of conviction was committed, then the continued reference to § 92 1(a)(30) would be superfluous, as would § 2K2.1(a)(4)(B) itself. For these reasons, we conclude the district court d id not err in interpreting § 2K2.1(a)(4)(B) or in applying that provision to Whitehead’s case. The judgment of the district court is AFFIRMED.