United States of America v. Geoffrey Von Kinder

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable David Alan Ezra, United States District Judge for the**
District of Hawaii, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GEOFFREY VON KINDER,
Defendant - Appellant.
No. 07-30356
D.C. No. 1:07-cr-00019-RFC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Court Judge, Presiding
Argued and Submitted October 4, 2010
Seattle, Washington
Before: THOMAS and M. SMITH, Circuit Judges, and EZRA, District Judge.**
Geoffrey Von Kinder appeals his sentence for being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). Kinder argues on appeal that the
district court erred in determining under the modified categorical approach that his
FILED
NOV 10 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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prior conviction for burglary of a cabin was a “crime of violence” supporting a
base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A). Specifically, Kinder
contests the district court’s conclusion that the cabin burglarized was a dwelling as
defined by U.S.S.G. § 4B1.2(a)(2).
We conclude that the Information and Sentencing Order from Kinder’s prior
conviction for burglary were sufficient for a finding under the modified categorical
approach that the structure burglarized was a dwelling. United States v. Bonat, 106
F.3d 1472, 1476 (9th Cir. 1997) (“We have previously decided that in determining
if a defendant pled guilty to generic burglary, considering the indictment and the
judgment of conviction does not constitute a factual inquiry forbidden by Taylor
[v. United States, 495 U.S. 575 (1990)].” (citing United States v. O’Neal, 937 F.2d
1369, 1373 (9th Cir. 1991), superseded by statute on other grounds as recognized
in United States v. Huffhines, 967 F.2d 314, 321 (9th Cir. 1992))). Accordingly,
Kinder’s past conviction qualified as a crime of violence under U.S.S.G. §
2K2.1(a)(4)(A), and the district court did not err in applying a base offense level of
20 to Kinder’s sentence.
AFFIRMED.

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