106 F. 3d 409 - United States v. R Brandt
106 F3d 409 United States v. R Brandt
106 F.3d 409
UNITED STATES of America, Plaintiff-Appellee,
v.
Leroy R. BRANDT, Defendant-Appellant.
No. 96-30064.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 13, 1996.
Decided Jan. 15, 1997.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Before: NOONAN, THOMPSON and KLEINFELD, Circuit Judges.
ORDER
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We vacate the defendant Brandt's sentence and remand this case to the district court to enable that court to reconsider its imposition of a two-level increase in the defendant Leroy R. Brandt's base offense level under Sentencing Guideline § 2D1.1(b)(1) for possessing a dangerous weapon in connection with his offense. Reconsideration is appropriate in light of the district court's inability to find, during the subsequent sentencing hearing of Brandt's co-defendant John Dorman, that the firearm belonged to any of the conspirators. On reconsideration, the district court shall determine whether there is sufficient evidence to conclude that Brandt or a co-conspirator "possessed" the firearm on top of the motorcycle in the garage in connection with the conspiracy. If the evidence is insufficient to establish this fact, as apparently was the case when the co-defendant Dorman was sentenced, the two-level increase under Sentencing Guideline § 2D1.1(b)(1) would not be appropriate.
Sentence VACATED; case REMANDED.