UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 02-4542
BRYAN PALMER, a/k/a Jamel
Washington,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CR-02-29)
Submitted: November 26, 2002
Decided: April 10, 2003
Before NIEMEYER, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Steven I. Loew,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
2 UNITED STATES v. PALMER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Bryan Palmer sold crack cocaine to a confidential informant on two
occasions and was arrested as he was on his way to sell crack to the
informant for a third time. A loaded handgun was under the driver’s
seat of his car. He was charged with three counts of drug trafficking
and two federal firearms offenses. He pled guilty to possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000) (Count 5),
and using and carrying a firearm in a drug trafficking crime, 18
U.S.C. § 924(c) (2000) (Count 4). Palmer received a 70-month term
of imprisonment for the § 922(g)(1) conviction and a consecutive 60-
month term for the § 924(c) offense. He appeals his sentence, arguing,
first, that the district court erred in applying the cross reference in
U.S. Sentencing Guidelines Manual § 2K2.1(c)(1)(A) (2001) when it
calculated the offense level for the § 922(g)(1) count and, second, that
even if application of the cross reference was permissible, it should
not have been applied in his case. We affirm.
The guideline sentence for a § 924(c) offense is the minimum sen-
tence prescribed by the statute, see USSG § 2K2.4(a)(2), in this case
60 months, see 18 U.S.C. § 924(c)(1)(A)(i). With regard to the
§ 922(g)(1) count, the base offense level was 20 because Palmer had
a prior drug conviction.1 USSG § 2K2.1(a)(4)(A). No enhancement
was made for use or possession of the firearm in connection with
another felony under USSG § 2K2.1(b)(5) because the weapon that
Palmer possessed in the course of the drug trafficking charge, the
offense underlying the § 924(c) charge, was the basis for the posses-
sion of a firearm by a felon charge. See USSG § 2K2.4, comment.
(n.2) ("If the . . . weapon that was possessed . . . in the course of the
1
The underlying offenses for the § 922(g)(1) felon in possession
offense were: a 1991 New York assault conviction and a 1999 New York
drug conviction.
UNITED STATES v. PALMER 3
underlying offense also results in a conviction that would subject the
defendant to an enhancement under . . . § 2K2.1(b)(5) (pertaining to
the possession of any firearm or ammunition in connection with
another felony offense), do not apply that enhancement."). Applica-
tion Note 2 directs that the § 924(c) sentence "accounts for the con-
duct covered by [the enhancement under § 2K2.1(b)(5)] because of
the relatedness of that conduct to the conduct that forms the basis for
the conviction under the [§ 924(c)] conviction." Id.
While the court did not make any firearm enhancements, it applied,
over Palmer’s objection, the cross reference in § 2K2.1(c)(1)(A),
which directs that "[i]f the defendant used or possessed any firearm
in connection with the commission or attempted commission of
another felony offense," § 2X1.1 (Attempt, Solicitation or Conspir-
acy) should be applied with respect to the other offense if the result-
ing offense level is greater than the offense level otherwise
determined under § 2K2.1. Section 2X1.1 provides that the base
offense level and any adjustments are taken from the guideline for the
substantive offense. Palmer’s substantive "other offense" was drug
trafficking. The court determined that he was responsible for at least
4.18 grams of crack. Palmer’s base offense level was thus increased
to 24. USSG § 2D1.1(c)(8) [4-5 grams of crack]. With a three-level
adjustment for acceptance of responsibility, USSG § 3E1.1, Palmer’s
final offense level was 21. Palmer was in criminal history category V,
which gave him a guideline range of 70-87 months for the § 922(g)(1)
offense. He received the minimum sentence of seventy months, to be
followed by the mandatory consecutive sixty-month term for the
§ 924(c) count.
On appeal, Palmer renews his challenge to the application of the
cross reference, arguing that Amendment 599, which in 2000
amended Application Note 2 to § 2K2.4, prohibits the sentencing
court from enhancing a § 922(g)(1) sentence for use of the firearm in
connection with another offense. We review the district court’s legal
interpretation of a guideline de novo. United States v. Souther, 221
F.3d 626, 628 (4th Cir. 2000).
Palmer argues that Application Note 2 to § 2K2.4, in its current
form, prohibits application of the cross reference in § 2K2.1(c)(1)(A)
for use or possession of a firearm in connection with another offense
4 UNITED STATES v. PALMER
when the defendant is also convicted of violating § 924(c) because the
cross reference covers the same conduct as that covered by
§ 2K2.1(b)(5), an enhancement which is specifically prohibited in
§ 2K2.4. In his view, the same reasons the Sentencing Commission
put forward for excluding the enhancement under § 2K2.1(b)(5)
"compel the conclusion" that the Sentencing Commission did not
intend to allow use of the cross reference to compromise its purpose
for the amendment. We disagree. Application Note 2 specifically pro-
hibits a weapon enhancement under § 2K2.1(b)(5), but does not pro-
hibit application of the cross reference in § 2K2.1(c)(1)(A). The
Sentencing Commission could have, but did not, prohibit application
of the cross reference in cases such as Palmer’s.
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED