United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-1697
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Eric Curtis Chapman, *
*
Appellant. *
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Submitted: December 16, 2009
Filed: August 4, 2010
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Before BYE, BEAM, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Eric Curtis Chapman pled guilty to receipt of stolen firearms, unlawful
possession of a firearm as a previously convicted felon, and unlawful possession of
ammunition as a previously convicted felon. The district court1 sentenced Chapman
to 77 months’ imprisonment. Chapman appeals his sentence, contending that the
district court improperly applied a specific offense characteristic under the advisory
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
sentencing guidelines for possession of a firearm in connection with another felony
offense. We affirm.
I.
In July 2008, over the course of two different occasions, Patrick Hines stole a
total of four firearms from a sporting goods store in Fort Dodge, Iowa. Chapman’s
co-defendant, Richard Ayala, accompanied Hines for one of the thefts. Chapman
learned within days of the thefts that Hines had stolen the four firearms. The
combined value of the firearms was $3449.96.
Later that month, Chapman and Ayala stole the four stolen firearms from Hines.
According to undisputed portions of the presentence investigation report (“PSR”),
Ayala arranged a meeting in which Hines could trade the firearms to Chapman for
drugs or money or both. When Hines parked his vehicle down the street from Ayala’s
residence, a female associate of Ayala’s took two of the firearms from the vehicle.
Shortly thereafter, Chapman and Ayala asked Kenisha Richardson, Hines’s
girlfriend, for help in stealing the second set of firearms. When she declined, Ayala
arranged for Hines to transfer two firearms to Chapman, on the understanding that
Hines would later receive one pound of marijuana from Chapman’s fictitious “boss”
in return for the firearms. This ruse allowed Chapman to acquire possession of the
firearms.
After stealing the firearms from Hines, Chapman stored and concealed the
firearms in a black suitcase at the residence of Sherri Wahome, his girlfriend. In the
meantime, Ayala attempted to find a buyer for the firearms. On Ayala’s suggestion,
Chapman purchased large-capacity ammunition magazines for each of the firearms.
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Law enforcement officers discovered the stolen firearm before Chapman and
Ayala could sell them. In a search during September 2008, officers found a box
containing Winchester .25 caliber ammunition at a residence that Chapman shared
with another person. Chapman acknowledged in a police interview that the
ammunition belonged to him. In October 2008, officers seized the four stolen
firearms inside and adjacent to the black suitcase at Wahome’s residence. Wahome
told police that Chapman had brought the suitcase into her residence.
A grand jury returned a five-count indictment against Chapman and Ayala;
three counts named Chapman as defendant. Count 1 charged Chapman with receipt
of stolen firearms, in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). Counts 4 and 5
charged Chapman with unlawful possession of a firearm as a previously convicted
felon and unlawful possession of ammunition as a previously convicted felon,
respectively, both in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Chapman pled guilty to all three counts, and the district court sentenced him to
77 months’ imprisonment. The district court determined Chapman’s base offense
level under USSG § 2K2.1(a)(3). After finding that Chapman committed a felony
theft of property exceeding $1000 in value under Iowa law when he and Ayala stole
the firearms from Hines, see Iowa Code § 714.2(2), the district court applied a four-
level specific offense characteristic pursuant to USSG § 2K2.1(b)(6), because
Chapman “used or possessed any firearm or ammunition in connection with another
felony offense.” The court explained that Chapman did not merely receive the
property that Hines had stolen, but that he was also responsible for stealing the stolen
firearms from Hines.
The court ultimately calculated an advisory sentencing range of 87 to 108
months’ imprisonment. The government then moved to reduce Chapman’s sentence
pursuant to USSG § 5K1.1, based on his provision of substantial assistance. The court
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granted the motion and reduced the sentence by ten percent from the bottom of the
advisory range, resulting in a final sentence of 77 months’ imprisonment.
II.
Chapman argues on appeal that the district court committed procedural error in
calculating the advisory guideline range, see Gall v. United States, 552 U.S. 38, 51
(2007), because the court engaged in impermissible “double counting” when it applied
§ 2K2.1(b)(6). Generally speaking, “[d]ouble counting occurs when one part of the
Guidelines is applied to increase a defendant’s punishment on account of a kind of
harm that has already been fully accounted for by application of another part of the
Guidelines,” United States v. Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997) (internal
quotation omitted), but double counting is permissible if the Sentencing Commission
so intended and each guideline section furthers an independent purpose of sentencing.
Id. Chapman argues that the calculation of the base offense level for Count 1, which
alleged that he received stolen firearms, already accounted for the theft from Hines,
and that it was therefore error to count that theft again by applying the four-level
enhancement under § 2K2.1(b)(6). We review the district court’s application of the
guidelines and the double-counting question de novo. Id.
The disputed specific offense characteristic directs the court to increase the
defendant’s offense level by four if he “used or possessed any firearm or ammunition
in connection with another felony offense.” USSG § 2K2.1(b)(6). The commentary
defines “another felony offense” as “any federal, state, or local offense, other than the
explosive or firearms possession or trafficking offense, punishable by imprisonment
for a term exceeding one year, regardless of whether a criminal charge was brought,
or a conviction obtained.” Id. § 2K2.1, comment. (n.14(C)). In other words, if the
“other felony offense” is not “the explosive or firearms possession or trafficking
offense,” then it may be the basis for application of the specific offense characteristic.
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In United States v. English, 329 F.3d 615 (8th Cir. 2003), this court concluded
that the “firearms possession” offenses described in the commentary do not include
all offenses in which the underlying conduct involved firearms possession, but rather
are limited to “offenses that have, as an element, possession of a firearm.” Id. at 617.
The court thus held that the offense of felony theft under Iowa Code § 714.1(4) was
“another felony offense,” because “[t]here is nothing about the theft offense that
necessarily has anything to do with firearms.” Id. at 618. This was so even though
the theft offense in that particular case was based on the possession of stolen firearms,
and the defendant’s offense of conviction was unlawful possession of those same
firearms as a previously convicted felon under 18 U.S.C. § 922(g). English therefore
supports the district court’s determination that Chapman’s felony theft offense, which
involved the theft of the stolen firearms from Hines, was “another felony offense” for
purposes of § 2K2.1(b)(6).
The court in English did allow that “it would be unreasonable, and hence
presumably contrary to the Commission’s intent, to allow the ‘additional felony’ to
be an offense that the defendant has to commit, in every case, in order to commit the
underlying offense.” 329 F.3d at 618. Chapman raises a similar point, arguing that
because he pled guilty to unlawful receipt of firearms, knowing or having reasonable
cause to believe that they were stolen, 18 U.S.C. § 922(j), the district court erred by
counting his commission of felony theft of those same firearms under Iowa law as
“another felony offense.” In English, however, we rejected a comparable argument
on the ground that the Iowa felony theft statute includes a value element: the stolen
property must have a value of over $1000. Iowa Code § 714.2(2). Therefore, the
English court reasoned, a felon with a stolen gun will not necessarily violate the Iowa
statute, because the stolen gun might be worth only $1000 or less. 329 F.3d at 618.
Chapman’s argument fails for the same reason. A knowing recipient of stolen
firearms in violation of § 922(j), like a felon in possession of stolen firearms, will not
necessarily violate the Iowa felony theft statute, because the federal statute does not
require value in excess of $1000.
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In this case, moreover, Chapman also stands convicted of violating § 922(g) as
a felon in possession of a firearm. Due to the “grouping rules” of USSG § 3D1.2, the
conviction under § 922(j) resulted in no incremental punishment under the advisory
guidelines. PSR ¶ 32. English establishes that the four-level enhancement for felony
theft is appropriate for a defendant convicted under § 922(g), even when the firearms
possessed unlawfully are also stolen. Nothing in a general presumption against
“double counting” warrants allowing Chapman to avoid the enhancement approved
in English because he sustained an additional conviction, under § 922(j), for which
the guidelines recommended no additional punishment. See United States v. Young,
413 F.3d 727, 734 (8th Cir. 2005).
* * *
For these reasons, we conclude that the district court committed no procedural
error. The judgment of the district court is affirmed.
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