United States v. Luna

Revised February 1, 1999

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

__________________________

No. 97-41265
__________________________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

NORBERTO B. LUNA,
Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
___________________________________________________

January 15, 1999

Before POLITZ, Chief Judge, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

Defendant, Norberto B. Luna appeals his sentence of eighty-

four months in prison for knowingly possessing stolen firearms, in

violation of 18 U.S.C. § 922(j). Luna challenges the district

court’s application of the United States Sentencing Guidelines

(“U.S.S.G.” or the “Guidelines”) and the constitutionality of §

922(j). Finding no reversible error, we affirm.

I.

FACTS AND PROCEEDINGS

In August of 1996, Luna and two others burglarized a residence

in Corpus Christi, Texas, and stole five firearms. Luna was
subsequently arrested and charged in a single count indictment with

knowingly possessing five stolen firearms that had been shipped and

transported in interstate commerce, in violation if 18 U.S.C. §

922(j).1 Luna filed a pre-trial motion to dismiss the indictment,

arguing that § 922(j) was an unconstitutional exercise of the power

of Congress under the Commerce Clause. The district court orally

denied the motion, and the case proceeded to trial. As Luna waived

trial by jury, he was tried by the court. Based on a written

stipulation of facts, the district court found Luna guilty of

possession of stolen firearms.

A presentence report (“PSR”) was prepared by a probation

officer who assigned Luna a base offense level of twenty pursuant

to U.S.S.G. § 2K2.1(a)(4)(A) because Luna had a state conviction

for burglary of a habitation. Additionally, Luna received a total

of eight specific offense enhancements because (1) the offense

involved at least five firearms (§ 2K2.1(b)(1)(B)), (2) the

firearms were stolen (§ 2K2.1(b)(4)), and (3) the firearms were

possessed in connection with another felony offense —— the burglary

(§ 2K2.1(b)(5)). Luna’s offense level was reduced three levels for

acceptance of responsibility. His resulting net offense level was

1
Section 922(j) provides: "It shall be unlawful for any
person to receive, possess, conceal, store, barter, sell, or
dispose of any stolen firearm . . . which is moving as, which is
part of, which constitutes, or which has been shipped or
transported in, interstate or foreign commerce, either before or
after it was stolen, knowing or having reasonable cause to
believe that the firearm . . . was stolen.” 18 U.S.C. § 922(j)
(1994).

2
twenty-five. This offense level and Luna’s criminal history

yielded a sentence range of 84 to 105 months imprisonment.

Prior to sentencing, Luna filed objections to the PSR, which

the district court ultimately denied. Luna argued that (1) the

enhancements under both §§ 2K2.1(b)(4) and (b)(5) constituted

impermissible double counting; (2) the application of § 2K2.1(b)(4)

was inappropriate because the firearms were not “stolen” prior to

the time that he removed them from the residence; and (3)

determination of his base offense level under § 2K2.1(a)(4)(A) was

incorrect because his earlier state conviction for burglary was not

a prior qualifying conviction. Finding Luna’s objections to be

meritless, the district court sentenced him to a term of eighty-

four months, followed by three years of supervised release.2

In this appeal, Luna reiterates his objections to the PSR, and

again challenges the constitutionality of § 922(j) —— the statute

under which he was convicted. As he argued in his motion to

dismiss the indictment, Luna asserts that § 922(j) is an

unconstitutional exercise of the power of Congress under the

Commerce Clause. Luna contends that both facially and as applied

to him, the statute exceeds the authority of Congress under the

Commerce Clause because the conveyance of a firearm over state

lines at some unspecified point in the past does not substantially

2
The district court also imposed a $100 special assessment
and ordered Luna to provide restitution to the victim of the
crime.

3
affect commerce. We begin by addressing the constitutionality of

the statute and then consider Luna’s challenges to his sentence

under the Guidelines.

II.

ANALYSIS

A. CONSTITUTIONALITY OF 18 U.S.C. § 922(j)

1. Standard of Review

In evaluating a constitutional challenge to a federal statute,

we apply a de novo standard of review.3

2. Facial Challenge

Luna contends that on its face 18 U.S.C. § 922(j) is an

unconstitutional exercise of the power of Congress under the

Commerce Clause. Section 922(j) makes it unlawful for any person

to “receive, possess, conceal, store, barter, sell, or dispose of

any stolen firearm . . . which is moving as, which is a part of,

which constitutes, or which has been shipped or transported in,

interstate or foreign commerce.”4 Relying on the Supreme Court’s

3
United States v. Pierson, 139 F.3d 501, 503 (5th Cir.),
cert. denied, 1998 WL 423916 (U.S. Oct. 5, 1998); United States
v. Rasco, 123 F.3d 222, 226 (5th Cir. 1997), cert. denied, 118
S.Ct. 868 (1998).
4
18 U.S.C. § 922(j).

4
decision in United States v. Lopez,5 Luna argues that the mere

possession of a stolen firearm that has crossed state lines in the

past does not substantially affect interstate commerce, thereby

falling outside the realm of activities that Congress can regulate

under the commerce power. The district court rejected this

argument when it denied Luna’s motion to dismiss the indictment.

We have not previously been required to address the

constitutionality of § 922(j). In fact, the only federal appellate

court to rule on the constitutionality of § 922(j) so far is the

Eighth Circuit, which did so in an unpublished opinion. In United

States v. Kocourek,6 that court upheld the constitutionality of §

922(j) in the face of a Commerce Clause challenge, based on the

section’s plain language that established the interstate commerce

link —— “shipped or transported in, interstate or foreign

commerce.”7 The Kocourek court relied on its examination of 18

U.S.C. § 922(g), a statute containing virtually identical language

to that of § 922(j), to ensure that the firearm in question

sufficiently affected interstate commerce.8 We agree with our

colleagues in the Eighth Circuit and likewise hold that § 922(j) is

5
514 U.S. 549 (1995).
6
116 F.3d 481 (8th Cir. 1997) (unpublished).
7
See 18 U.S.C. § 922(j).
8
Kocourek, 116 F.3d at 481 (citing United States v. Shelton,
66 F.3d 991, 992 (8th Cir. 1995) (per curiam) (concluding that §
922(g) contains the interstate commerce requirement), cert.
denied, 517 U.S. 1125 (1996)).

5
a constitutional exercise of Congress’s commerce power.

To properly define the boundaries of Congress’s power to

regulate activities involving firearms —— specifically stolen

firearms —— we begin with a discussion of the Supreme Court’s

Lopez opinion. In Lopez, the Court examined 18 U.S.C. § 922(q),

which prohibits the possession of a firearm within a designated

school zone. The Court identified “three broad categories” of

activity over which Congress could constitutionally exercise its

commerce power: (1) the use of the channels of interstate commerce;

(2) the instrumentalities of, or persons or things in, interstate

commerce; and (3) activities substantially affecting interstate

commerce.9 Analyzing § 922(q) within this framework, the Court

first dismissed the possibility that intrastate possession of

firearms could fit into the first two categories, and turned

instead to the third category —— whether the intrastate possession

of firearms could substantially affect interstate commerce.10 In

holding § 922(q) unconstitutional, the Court noted that, as a

criminal statute, § 922(q) had nothing to do with commercial

enterprise nor was it an essential part of a larger regulation of

economic activity, and thus did not substantially affect commerce.

Central to this holding was the lack of a “jurisdictional element

which would ensure, through a case-by-case inquiry, that the

9
Lopez, 514 U.S. at 558-59.
10
Id. at 559.

6
firearm possession in question affects interstate commerce.”11

Unlike § 922(q), § 922(j) does contain a jurisdictional

element. It specifically prohibits possession of a stolen firearm

“which is moving as, which is a part of, which constitutes, or

which has been shipped or transported in, interstate or foreign

commerce.”12 Luna argues that the jurisdictional element in § 922(j)

is broadly worded, and such “clever legislative craftwork” cannot

shield the statute from constitutional attack.13 Section 922(j),

however, contains language virtually identical to that of §§

922(g)(1) and (g)(8), related provisions in the federal firearms

statute that we have held constitutional in the face of post-Lopez

Commerce Clause challenges.14

For example, we have upheld, on several occasions, the

11
Id. at 561.
12
18 U.S.C. § 922(j).
13
See United States v. Chesney, 86 F.3d 564, 579 (6th Cir.
1996) (Batchelder, J., concurring) (“A statute that regulates
non-commercial activity cannot be converted into a statute that
regulates commercial activity by dint of clever legislative
craftwork.”), cert. denied, 117 S.Ct. 2470 (1997).
14
See infra note 15 and accompanying text; Pierson, 139
F.3d at 503 (§ 922(g)(8) governs possession of firearms by
individuals subject to protective orders in family violence
cases); see also United States v. Hardy, 120 F.3d 76, 79 (7th
Cir. 1997) (finding § 922(u) constitutional); United States v.
Snow, 82 F.3d 935, 939 (10th Cir. 1996) (same); United States v.
Miller, 74 F.3d 159, 159-60 (8th Cir. 1996) (same); United States
v. Hernandez, 85 F.3d 1023, 1031 (2nd Cir. 1996) (finding §
922(k) constitutional); United States v. Diaz-Martinez, 71 F.3d
946, 953 (1st Cir. 1995) (same).

7
constitutionality of § 922(g)(1)15 —— the felon-in-possession

statute —— based in large part on the jurisdictional nexus

expressed in the plain language.16 Section 922(g)(1) makes it

unlawful for a convicted felon “to ship or transport in interstate

or foreign commerce, or possess in or affecting commerce, any

firearm . . . or to receive any firearm . . . which has been

15
United States v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996)
(finding that the holding in Lopez does not invalidate the
constitutionality of § 922(g)(1)); United States v. Gresham, 118
F.3d 258, 264 (5th Cir. 1997) (reaffirming Rawls), cert. denied,
118 S.Ct. 702 (1998); United States v. Kuban, 94 F.3d 971, 973
(5th Cir. 1996) (same), cert. denied, 117 S.Ct. 716 (1997);
United States v. Dickey, 102 F.3d 157, 163 (5th Cir. 1996)
(same). We note that every other circuit that has addressed this
issue has upheld the constitutionality of § 922(g)(1). See
United States v. Williams, 128 F.3d 1128 (7th Cir. 1997)
(referencing decisions from each circuit court).
16
The cases interpreting § 922(g)(1) cite Scarborough v.
United States, 431 U.S. 563 (1977), as binding precedent, a case
which concluded that the predecessor statute to § 922(g) required
only a minimal nexus between the firearm and interstate commerce.
We find this holding instructive, but not binding on our
interpretation of § 922(j). Scarborough dealt with a felon-in-
possession statute and was not mentioned in the Lopez opinion.
Furthermore, prior panels have questioned the applicability of
Scarborough if the constitutionality of § 922(g) was res nova, as
the constitutionality of § 922(j) is today. See Rawls, 85 F.3d
at 243 (“If the matter were res nova, one might well wonder how
it could rationally be concluded that mere possession of a
firearm in any meaningful way concerns interstate commerce,” but
the language in Scarborough “carr[ies] a strong enough
implication of constitutionality to now bind us . . . .”)
(Garwood, Wiener, Emilio M. Garza, J.J., specially concurring);
Gresham, 118 F.3d at 265 n.11 (noting the restrictive
interpretation of the commerce power in Lopez, but finding that
only a “minimal nexus” between the firearm and interstate
commerce is required under Rawls); Kuban, 94 F.3d at 973 n.4
(same). In light of the uncertainty surrounding the application
of Scarborough, we base our holding on the factors set out in
Lopez.

8
shipped in interstate commerce.”17 Unlike the statute at issue in

Lopez, § 922(g)(1) expressly requires some nexus to interstate

commerce, reflecting the ability of Congress to exercise its

delegated power under the Commerce Clause to reach the possession

of firearms that have an explicit connection with or effect on

interstate commerce.18 We find that the same reasoning applies to

§ 922(j), and the language “shipped or transported in, interstate

or foreign commerce” likewise provides the requisite nexus to

commerce that was lacking in Lopez.

In addition to the jurisdictional nexus found in the language

of § 922(j), congressional findings support the conclusion that

possession of stolen firearms “substantially affects interstate

commerce.”19 Congress initially enacted legislation containing a

possession of stolen firearms provision out of a concern for

17
18 U.S.C. § 922(g) (1994).
18
See Lopez, 514 U.S. at 561 (“[Section] 922(q) has no
express jurisdictional element which might limit its reach to a
discrete set of firearm possessions that additionally have an
explicit connection with or effect on interstate commerce.”);
compare Rawls, 85 F.3d at 243 (“[Section 922(g)] does expressly
require some nexus to interstate commerce, thus importantly
reflecting that Congress was exercising that delegated power and
not merely functioning as if it were the legislative authority of
a unitary state.”) (Garwood, Wiener, Emilio M. Garza, J.J.,
specially concurring).
19
See United States v. Monteleone, 77 F.3d 1086, 1091 (8th
Cir. 1996) (“[S]ection 922(d) addresses the disposal of firearms,
which is an inherently commercial activity.”); United States v.
Michael R., 90 F.3d 340, 344 (9th Cir. 1996) (“[Section 922(x)],
possession of a handgun by a juvenile, as a general matter, could
have a substantial effect on interstate commerce.”).

9
“widespread traffic in firearms moving in or otherwise affecting

interstate or foreign commerce.”20 Section 922 has been amended

twice since its inception, and both amendments have broadened the

scope and strengthened the role of the federal government in the

continuing fight against illicit trafficking in stolen firearms.

The provision was first expanded in 1990 to reach firearms “shipped

or transported in” interstate commerce. In its report on proposed

changes to § 922, the Judiciary Committee of the House of

Representatives explained that the change in § 922(j) was designed

to “expand Federal jurisdiction to permit prosecutions for

transactions involving stolen firearms . . . where the firearms

have already moved in interstate or foreign commerce.”21 Again, in

1994, § 922(j) was amended to specify that the firearm could have

traveled in interstate commerce “either before or after it was

stolen.” Although Congress made no findings regarding this

amendment, we perceive the clear purpose to have been to extend

further its cognizance over any stolen firearm.

The expansion of federal jurisdiction over stolen firearms

demonstrates Congress’s commitment to eradicating the traffic in

20
Omnibus Crime Control and Safe Streets Act of 1968, Pub.
L. No. 90-351, § 901(a)(1) (1968).
21
H.R.Rep. No. 681, 101st Cong., 2d Sess., pt. 1, at 106
(1990), reprinted in 1990 U.S.C.C.A.N. 6472, 6510; see also
United States v. Cruz, 50 F.3d 714, 718 (9th Cir. 1995)
(discussing the legislative history of § 922(j)); United States
v. Honaker, 5 F.3d 160, 161-62 (6th Cir. 1993) (same), cert.
denied, 510 U.S. 1180 (1994).

10
stolen firearms. The propriety of that goal is exemplified in this

case by Luna’s admission that he intended to sell the stolen guns

in question —— the very activity that Congress seeks to end.

Given this historical background, we are satisfied that the

regulation of stolen firearms is “an essential part of a larger

regulation of economic activity, in which the regulatory scheme

could be undercut unless the intrastate activity were regulated.”22

As such, we give due deference to the collective institutional

expertise of Congress and conclude that § 922(j) embodies a

legitimate exercise of Congress’s power under the Commerce Clause.

3. Constitutionality As Applied

Luna also contends that § 922(j) is unconstitutional as

applied to him. Specifically, Luna argues that because he broke

into a house, stole firearms, and was later apprehended by the

police, all of which occurred in Texas, his crime is of a purely

local nature, historically prosecuted in the state system. Because

we hold that § 922(j) is constitutional on its face, it is likewise

constitutional when applied to Luna, given his stipulation that

22
Lopez, 514 U.S. at 561; see also United States v. Kirk,
105 F.3d 997, 1005 (5th Cir.) (en banc) (confirming the
constitutionality of § 922(o), governing the possession of
machine guns, because Congress has the power to “freeze the
escalating destructive power of the weapons of that [drug] war”),
cert. denied, 118 S.Ct. 47 (1997); see also United States v.
Franklyn, 1998 WL 603237, *4 (2d Cir. 1998) (trafficking of
machine guns has strong interstate effects), petition for cert.
filed, No. 98-6500 (Oct. 16, 1998); United States v. Rybar, 103
F.3d 273, 279 (3d Cir. 1996) (same), cert. denied, 118 S.Ct. 46
(1997).

11
three of the five firearms named in the indictment were

manufactured in either New York or Connecticut. These firearms had

to travel in interstate commerce to reach the home Luna burglarized

in Texas, thereby satisfying the interstate requirement of the

statute.23 We therefore hold that § 922(j) is constitutional as

applied to Luna.

B. APPLICATION OF SENTENCING GUIDELINES UNDER § 2K2.1

1. Standard of Review

We review the district court’s interpretation of the

Guidelines de novo and findings of fact for clear error.24 We must

uphold a defendant’s sentence on appeal unless it was imposed in

violation of the law, involved an incorrect application of the

Guidelines, or constituted an unreasonable departure from the

applicable Guideline range.25

2. Double Counting Under § 2K2.1(b)(4) and (b)(5)

Luna argues that when enhancing his base offense level, the

district court impermissibly double counted by giving him a two-

level increase under § 2K2.1(b)(4) because the firearms were stolen

and a simultaneous four-level increase under § 2K2.1(b)(5) for

23
See Pierson, 139 F.3d at 504 (“[E]vidence that a gun was
manufactured in one state and possessed in another state is
sufficient to establish a past connection between the firearm and
interstate commerce.”).
24
United States v. Valdez-Valdez, 143 F.3d 196, 197 (5th
Cir. 1998).
25
United States v. Armstead, 114 F.3d 504, 507 (5th Cir.),
cert. denied, 118 S.Ct. 315 (1997).

12
possessing these stolen firearms in connection with another felony

offense, the burglary. By applying both subsection (b)(4) and

(b)(5), Luna contends, his sentence was increased twice for the

same conduct —— stealing firearms.

Luna relies primarily on dicta in United States v. Guerrero26

and United States v. Armstead27 to support his argument. In

Guerrero and Armstead,28 we questioned whether a district court

should apply both § 2K2.1(b)(4) and (b)(5) when a defendant steals

a firearm during a burglary, because the burglary Guideline

expressly prohibits both adjustments in the same situation.29 The

burglary Guidelines, contained in § 2B2.1, include separate

sentence enhancements when “a firearm . . . was taken”30 and when

“a dangerous weapon (including a firearm) was possessed.”31

According to the commentary, however, “possess[ing] a dangerous

weapon (including a firearm) that was stolen during the course of

26
5 F.3d 868 (5th Cir. 1993), cert. denied, 510 U.S. 1134
(1994).
27
114 F.3d 504 (5th Cir.), cert. denied, 118 S.Ct. 315
(1997).
28
Guerrero, 5 F.3d at 873 n.10; Armstead, 114 F.3d at 513
n.4.
29
Luna did not commit a burglary under federal law (i.e.
burglary of a bank or post office); therefore, the burglary
Guideline was not applicable in calculating his offense level.
See U.S.S.G. § 1B1.2 (“Determine the offense guideline section .
. . most applicable to the offense of conviction.”).
30
U.S.S.G. § 2B2.1(b)(3).
31
U.S.S.G. § 2B2.1(b)(4).

13
the offense” will not lead to sentence enhancement under both

sections.32 In other words, the burglary Guidelines expressly

prohibit double enhancements for stealing and possessing the same

weapons at the same time.

Luna urges us to analogize the double counting prohibition in

the burglary Guidelines to the firearm Guidelines. In fact,

because the firearm Guidelines contain very similar provisions, we

have suggested —— in Guerrero and Armstead —— that separate

enhancements for possession of a stolen firearm and possession of

a firearm in connection with a burglary could constitute enhancing

a defendant’s sentence twice for the same conduct. Until now, we

have left this question unanswered, but we cannot avoid addressing

it head-on today. When we do, we conclude that the firearm

Guidelines permit separate enhancements for the firearm’s being

stolen and for the same firearm’s being possessed during the

commission of the underlying felony offense.

We base this holding on the clear, unambiguous language of the

firearm Guidelines.33 Section 2K2.1(b)(4) calls for enhancement

“[i]f any firearm was stolen.” And, although a related commentary

prohibits application of this subsection in limited circumstances,

none is present in this case. Note 12 to § 2K2.1 explains that the

32
U.S.S.G. § 2B2.1, commentary n.3.
33
United States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1989)
(noting that in the absence of a discernable, contrary intent,
the court follows the clear language of the Guidelines).

14
enhancement in subsection (b)(4) is barred in cases involving a

violation of § 922(j) —— the section under which Luna was convicted

—— if “the base level offense is determined under subsection

(a)(7).”34 Luna’s base level offense was determined under

subsection (a)(4), however, so this exception does not apply.

Section 2K2.1(b)(5), on the other hand, calls for enhancement

“if the defendant possessed or used any firearm in connection with

another felony offense.” Luna does not dispute the applicability

of this subsection to his situation, but argues that it provides a

four-level enhancement for possessing the same “stolen” firearm

that produces a two-level enhancement under subsection (b)(4). As

we perceive significant differences between the two subsections, we

disagree. Subsection (b)(4) increases a base offense level ipso

facto if the thing possessed by the defendant is a stolen firearm.

For example, if Luna had received the stolen firearm in his home

and subsequently been convicted for attempting to sell it, his

sentence would have been enhanced under subsection (b)(4) because

the firearm he sought to sell was stolen. But assuming that he

committed no underlying felony, he would not have received an

enhancement under subsection (b)(5). Subsection (b)(5) requires an

increase in the base offense level when the firearm in question is

somehow involved in another felony offense.35 The language in

34
U.S.S.G. § 2K2.1, commentary n.12.
35
See United States v. Barlow, No. 96-40565 (5th Cir. Dec.
13, 1996) (unpublished) (holding that the district court properly

15
(b)(5) demonstrates the heightened public safety concerns when, for

example, a defendant enters a building illegally and, while there,

possesses a firearm, because it could be used to harm the occupants

or an unexpected visitor. Under such circumstances, the potential

for harm is greatly increased, thereby justifying the additional

enhancement.

Nonetheless, even if we assume arguendo that application of

both enhancements constitutes double counting, the result would

remain the same. We have recognized that the Guidelines do not

prohibit double counting except when the particular Guideline at

issue expressly does so.36 Furthermore, the Guidelines provide that

“[t]he offense level adjustments from more than one specific

offense characteristic within an offense are cumulative (added

together) unless the guideline specifies that only the greater (or

greatest) is to be used.”37 Section 2K2.1 contains no such

limitations regarding the application of subsections (b)(4) and

(b)(5). In fact, we find telling by contrast that the burglary

Guideline specifically prohibits double counting in the application

of similar enhancements. If the Sentencing Commission had wanted

enhanced defendant’s base offense level under § 2K2.1(b)(5)
because “another felony offense” refers to offenses other than
the firearms possession).
36
United States v. Morris, 131 F.3d 1136, 1139 (5th Cir.
1997), cert. denied, 118 S.Ct. 1546 (1998); United States v.
Hawkins, 69 F.3d 11, 14 (5th Cir. 1995), cert. denied, 516 U.S.
1163 (1996).
37
U.S.S.G. § 1B1.1, commentary n.4.

16
the principles expressed in the burglary Guidelines to apply

equally to the firearm Guidelines, it knew how to make that happen.

We hold that the district court’s application of subsections (b)(4)

and (b)(5) did not constitute prohibited double counting.

3. Application of § 2K2.1(b)(4)

As an alternative to the double counting argument above, Luna

contends that the district court improperly increased his offense

level under § 2K2.1(b)(4) —— “[i]f any firearm was stolen” ——

because the firearms were not “stolen” when he acquired possession

of them during the course of the burglary. To support his

argument, Luna relies on the reasoning and conclusion reached by

the Tenth Circuit in United States v. Rowlett.38 The Rowlett court

held that an enhancement under subsection (b)(4) applies only when

the firearm had already been stolen prior to the defendant’s taking

possession of it.39 Focusing on the fact that the Guideline is

written in the past tense, the Rowlett court reasoned that

subsection (b)(4) was concerned not with the way in which the

firearms were acquired by a particular defendant but with their

condition (stolen or not stolen) when acquired.40

38
23 F.3d 300 (10th Cir. 1994).
39
Id. at 304.
40
Id. To buttress its holding, the Rowlett court proceeded
in dicta to examine Application note 12, which provides that the
two level enhancement in subsection (b)(4) should not be applied
when the defendant is convicted under specified offenses
“involving stolen firearms or ammunition” because the “base
offense level itself takes such conduct into account.” See

17
 We disagree with the holding in Rowlett and its emphasis on

the use of the past tense in subsection (b)(4).41 Rejecting this

grammatical technicality, we choose instead to read subsection

U.S.S.G. § 2K2.1, commentary n.12 (1993) (amended 1995, 1997, and
1998). See also U.S.S.G. Appendix C, amendment 522 for the text
of Application note 12 at the time of the Rowlett opinion.
Because the offenses listed in Application note 12 dealt with
the preexisting condition of the firearms as “stolen” and not the
manner in which they were acquired by the defendant, the court
explained, subsection (b)(4) must likewise address the
preexisting condition of the firearm. Rowlett, 23 F.3d at 304-
05.
41
The Government urges us to reject the holding in Rowlett
for reasons expressed in United States v. Askew, 966 F. Supp.
1103 (M.D. Ala. 1997). We agree with the outcome in Askew, but
find an inherent flaw in its reasoning and choose, instead, to
base our holding on an overall reading of the Guidelines. The
defendant in Askew was convicted of stealing firearms from a
licensed gun dealer pursuant to § 922(u) and, during sentencing,
received a two level enhancement under § 2K2.1(b)(4) because the
firearms were stolen. Id. at 1104. Relying on the holding in
Rowlett, Askew argued that he should not receive the (b)(4)
enhancement because the firearms were not stolen when he took
possession of them. Id. at 1106. The Askew court rejected this
argument and focused on an amendment to Application note 12 to
distinguish Rowlett and apply the (b)(4) enhancement to Askew.
Note 12 had been amended in 1995 to include § 922(u) — an offense
that addresses the manner in which the firearm was acquired —
leading the Askew court to conclude that subsection (b)(4) must
now reference both the preexisting condition of the firearm and
the manner in which it was acquired. Id. at 1106-07.
The fallacy we discern in Askew is the court’s reliance on
an incorrect proposition in Rowlett, i.e., that Application note
12, prior to being amended in 1995, referenced statutes that
dealt only with the preexisting condition of the firearm.
Actually, 26 U.S.C. § 5861(g) — which was included in the 1993,
pre-amended version of note 12 and has been included ever since —
provides that, “[i]t shall be unlawful for any person . . . to
obliterate, remove, change, or alter the serial number or other
identification of a firearm required by this chapter.” As §
5861(g) does not address the preexisting condition of the
firearm, the reasoning in Askew fails, as does the Rowlett dicta
to that effect.

18
(b)(4) in the context of the entire firearms Guideline. Section

2K2.1 applies to the unlawful possession, receipt, or

transportation of firearms. Limiting the application of subsection

(b)(4) to firearms that were previously stolen would foreclose a

two-level enhancement for defendants who, for example, steal a

lawfully-possessed machine gun from a neighbor, in violation of 18

U.S.C. § 922(o).42 The defendant in our hypothetical case example

could be convicted for illegal possession of a machine gun under §

922(o) but, under the holding in Rowlett, could not receive a two-

level enhancement under § 2K2.1(b)(4) simply because the machine

gun was not stolen when the defendant acquired it. We find this

result antithetical to the overall scheme of the Guidelines. Luna

(1) illegally entered a home, (2) stole the firearms during the

commission of the burglary, and (3) departed with the stolen guns

in his possession. This course of conduct clearly triggered the

application of § 2K2.1(b)(4).43 We conclude that the district court

42
Section 922(o) provides, “Except as provided in paragraph
(2), it shall be unlawful for any person to transfer or possess a
machine gun.”
43
Our reasoning is further supported by the 1995 amendment
(which still applies) to Application note 12 that significantly
expands the use of subsection (b)(4). Prior to 1995, note 12
instructed sentencing courts to disregard the enhancement in
subsection (b)(4) if the defendant was convicted under one of the
enumerated offenses involving stolen firearms or
altered/obliterated serial numbers. Under the 1995 amendment,
however, sentencing courts are instructed to disregard the
enhancement only if the defendant was convicted under one of the
enumerated offenses and his base offense level was calculated
under subsection (a)(7), the “catchall” provision that applies
when none among (a)(1)-(6) or (8) applies. See U.S.S.G. Appendix

19
properly applied a two-level enhancement under § 2K2.1(b)(4) to

Luna’s base offense level.44

4. Base Offense Level Under § 2K2.1(a)(4)(A)

Luna’s final challenge to his sentence relates to the

calculation of his base offense level. Luna contends that the

district court erred in assessing his base offense level under §

2K2.1(a)(4)(A), which mandates a level of 20 if the defendant “had

one prior felony conviction of either a crime of violence or a

controlled substance offense.” Luna argues that the use of the

past tense “had” indicates that § 2K2.1(a)(4)(A) was intended to

apply only when the other violent felony conviction occurred prior

to the commission of the firearms offense.45 In this case, Luna

committed and was convicted of another burglary after he committed

the federal firearms offense, but before he was sentenced for the

firearms offense.

As correctly argued by the government, Luna’s contention is

C, amendment 522. As two qualifications are now required to
disregard the enhancement under (b)(4), the Sentencing Commission
has demonstrated an intention for more defendants to receive the
(b)(4) enhancement.
44
Luna additionally argues that, at the very least, §
2K2.1(b)(4) is ambiguous and under the rule of lenity, ambiguity
should be resolved in his favor. United States v. Granderson,
511 U.S. 39, 54 (1994). We do not find the term “stolen” to be
ambiguous and therefore reject this argument.
45
Luna relies on the Sixth Circuit case of United States v.
Barton, 100 F.3d 43 (6th Cir. 1996), which held that “only those
convictions that occur prior to the commission of the firearms
offense may be counted against the defendant in determining the
base offense level [under § 2K2.1].” Id. at 46.

20
precluded by our previous decision in United States v. Gooden.46

In Gooden, we held that a conviction for a robbery that occurred

after the commission of a federal firearms offense was a “prior

conviction” for purposes of § 2K2.1(a)(4)(A) because the

defendant’s sentence for robbery was imposed prior to the

imposition of his sentence on the firearms offense.47 Even if we

were inclined to disagree, we would not be at liberty to disregard

the holding of a prior panel of this court absent an intervening

amendment to the statute or a Supreme Court opinion.48 We therefore

hold that the district court correctly calculated Luna’s offense

level under § 2K2.1(a)(4)(A).

III.

CONCLUSION

For the foregoing reasons, we hold that 18 U.S.C. § 922(j) is

constitutional, both facially and as applied to Luna.

Additionally, we find no reversible error in the application of the

Guidelines by the district court. Accordingly, Luna’s conviction

and sentence are, in all respects,

46
116 F.3d 721 (5th Cir.), cert. denied, 118 S.Ct. 350
(1997).
47
Id. at 724-25; accord United States v. McCary, 14 F.3d
1502, 1506 (considering offenses resulting in conviction prior
to the defendant’s sentencing on the federal firearms offense in
setting the defendant’s base offense level under § 2K2.1).
48
United States v. Wilson, 116 F.3d 1066, 1090 (5th Cir.
1997); Matter of Evangeline Refining Co., 890 F.2d 1312, 1326
n.12 (5th Cir. 1989).

21
AFFIRMED.

22
DENNIS, Circuit Judge, concurring:

I join fully in the court’s opinion, except for Part

II.B.3.(“Application of § 2K2.1(b)(4)”), as to which I concur in

the result for the following reasons.

Section 2K2.1(b)(4) provides:

(b) Specific Offense Characteristics

* * *

(4) If any firearm was stolen, or had an

altered or obliterated serial number, increase

by 2 levels.

I agree that § 2K2.1(b)(4) applies to the sentence of a

defendant convicted of knowingly possessing a stolen firearm if the

weapon was a “stolen firearm” at the time of the offense of

conviction, regardless of who committed the theft, i.e., that it

is irrelevant whether the illegal possessor was also the thief. In

the absence of Application Note 12, however, I do not think the

Guideline unambiguously expresses an intention that every defendant

convicted of knowingly possessing a stolen firearm in violation of

23
18 U.S.C. § 922(j) shall receive a 2 level increase in his offense

level.

On the contrary, if it were not for Application Note 12, I

would conclude that the Guideline itself should be read to mean

that a defendant convicted of an offense involving a stolen firearm

would receive a 2 level increase only if any firearm involved in

the offense of conviction had an altered or obliterated serial

number, and that a defendant convicted of an offense involving an

altered or obliterated serial number would receive a like increase

only if any firearm involved was stolen. (Of course, a defendant

convicted of a crime to which the Guideline applies that does not

by statutory definition involve a stolen or altered firearm, would

also receive an increase by 2 levels under § 2K2.1(b)(4), if any

firearm involved was stolen or had an altered or obliterated serial

number.) In the absence of Application Note 12, this meaning would

logically and reasonably follow because (1) the fact that a firearm

is a stolen firearm is a not a specific, but a generic, offense

characteristic when the offense of conviction is knowingly

possessing a stolen firearm; therefore, with respect to this

particular offense of conviction, that generic offense

characteristic would be implicitly excluded from the category of

“specific offense characteristics”--in other words the fact that

the firearm was stolen would not aggravate, distinguish or qualify

the offense of conviction in any respect; and (2) the base offense

level already takes into account that the firearm was stolen.

24
 Application Note 12, however, explicitly, carefully and

thoroughly provides that in certain cases of convictions involving

stolen or altered firearms a defendant shall be spared from

enhancement under § 2K2.1(b)(4) when his base offense is determined

under § 2K2.1(a)(7). The extension of this mitigation only to

cases in which the base level is determined under subsection (a)(7)

clearly implies that it shall be withheld when the base level is

determined under any other subsection; thus, two levels must be

added if any firearm was stolen or had an altered serial number,

unless the base level is determined under subsection (a)(7). This

requirement is troublesome when the offense of conviction is

possession of a stolen or altered firearm because the stated reason

for the enhancement is an essential element of the basic offense,

not an aggravating factor involved in the commission of the crime,

and therefore provides no evident basis for increasing the

punishment. However, a “commentary in the Guidelines Manual that

interprets or explains a guideline is authoritative unless it

violates the Constitution or a federal statute, or is inconsistent

with, or a plainly erroneous reading of, that guideline.” Stinson

v. United States, 508 U.S. 36, 38 (1993). Because I cannot say

that any flaw in the rationale of the Guideline or its commentary

reaches these proportions, I respectfully concur in the result.

I cannot agree with the majority’s argument that “the overall

scheme of the Guidelines” and the machine gun hypothetical provide

additional support for that result. Without Application Note 12,

25
I believe the 2 level increase would not be required.

26