Defendant resentence for possessing firearms while subject to a protection order

United States v. Borer 03-2903 6-22-05 Shane Borer pled guilty to possession of firearms while subject to one or more domestic-violence protection orders, in violation of 18 U.S.C. § 922(g)(8).The court sentenced Borer to 24 months imprisonment and three years of supervised release. On rehearingthe government asserted that Borer was ineligible for a threelevel reduction under the Federal Sentencing Guidelines, namely § 3E1.1(b), because under the amended PROTECT ACT guidelines(Pub.L.No. 108-21, § 401(g), 117 Stat. 650, 671-72 (effective date April 30, 2003) SECTION 401, the third level reduction is available only upon motion of the government, which the government did not file for Borer's sentencing hearing, The 8th Circuit agreed with the Defendant that retrospective application of the new motion requirement would violate the Ex Post Facto Clause of the Constitution, as the PROTECT Act amendment made it materially more difficult for Borer to earn a reduction for acceptance of responsibility by adding a requirement that the government authorize the court to grant a third level reduction. As a result, the statute was "retrospective and more onerous than the law in effect on the date of the offense." Weaver v. Graham, 450 U.S. 24, 30-31 (1981). The 8th Circuit further held that Borer's prior conviction for Criminal mischief,Neb. Rev. Stat. § 28-519(1).was an offense that would increase the defendant's criminal history level by one point, as the crime involves an intent to cause property damage, in this case a cheap cell phone. Conviction signifies that a defendant has done "more than merely disturb the public order."Accord United States v. May, 343F.3d 1, 10 (1st Cir. 2003).Because this case must be remanded for resentencing due to an incorrect application of theguidelines, we conclude that the district court also should resentence Borer in light of Booker. See United States v. Huber, 404 F.3d 1047, 1064 (8th Cir. 2005).