[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10021 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 17, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:08-cr-00003-JTC-ECS-6
UNITED STATES OF AMERICA
lllllllllllllllllllllPlaintiff-Appellee,
versus
BRANDON MCCLURE,
a.k.a. Mickey Mouse,
lllllllll llllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 17, 2010)
Before TJOFLAT, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Brandon McClure appeals his 125-month sentence following his guilty plea
for conspiring to steal firearms from a federal licensee and to receive stolen
firearms, in violation of 18 U.S.C. § 371; stealing firearms from a federal licensee,
in violation of 18 U.S.C. § 922(u); and receiving stolen firearms, in violation of 18
U.S.C. §922(j). McClure’s conviction was based on his participation in the
burglary of a federally-licenced firearms dealer, during which he and his 13 co-
defendants stole over 80 firearms.
On appeal, McClure argues that the district court improperly calculated his
sentencing guidelines range by increasing his base offense level for possessing a
firearm in connection with another felony offense, under U.S.S.G. § 2K2.1(b)(6).
McClure also argues that the application the § 2K2.1(b)(6) sentencing
enhancement constituted impermissible double counting because the district court
also increased his base offense level for possessing a stolen firearm, under
U.S.S.G. § 2K2.1(b)(4)(A). After careful review, we affirm.1
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McClure also argues, for the first time on appeal, that the application of the §
2K2.1(b)(4)(A) sentencing enhancement constituted impermissible double counting because the
district court also increased his base offense level due to the number of firearms involved in his
offenses, under U.S.S.G. § 2K2.1(b)(1)(C). He contends that applying both enhancements
constituted impermissible double counting.
Because these sentencing enhancements deal with conceptually separate notions relating
to sentencing – possession of a stolen firearm and the number of firearms involved, respectively
– the district court did not plainly err by applying both in calculating McClure’s sentencing
guidelines range.
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Section 2K2.1(b)(6) provides for a four-level increase in a defendant’s base
offense level “[i]f the defendant used or possessed any firearm or ammunition in
connection with another felony offense . . . .” § 2K2.1(b)(6). The enhancement
applies “if the firearm or ammunition facilitated, or had the potential of
facilitating, another felony offense . . . .” Id. at cmt. n.14(A). For the purposes of
this enhancement, “another felony offense” is defined as “any Federal, state, or
local offense, other than the . . . firearms possession or trafficking offense,
regardless of whether a criminal charge was brought, or a conviction obtained.”
Id. at cmt. n.14(C).
Although McClure argues that the § 2K2.1(b)(6) enhancement was not
applicable to him, the guidelines commentary states that it applies “in a case in
which a defendant who, during the course of a burglary, finds and takes a firearm,
even if the defendant did not engage in any other conduct with that firearm during
the course of the burglary . . . .” Id. at cmt. n.14(B). McClure does not dispute
that the facts he admitted at his plea colloquy were sufficient to show that he took
the firearms during the course of a burglary. Rather, he contends that comment
14(B) does not apply in a case such as this, where the object of the burglary was to
steal firearms. However, the commentary makes no distinction between
circumstances where a burglary was committed in order to steal firearms, and
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those where a defendant found and took a firearm while committing a burglary for
some other reason. Comment 14(B) states that the enhancement is warranted
“because the presence of the firearm has the potential of facilitating another felony
offense[,]” which is true whether the theft of the firearm was merely incidental to
the burglary or was its object. Id. at cmt. n.14(B). Therefore, the application of
the § 2K2.1(b)(6) enhancement was not erroneous.
McClure also argues that the application the § 2K2.1(b)(6) sentencing
enhancement constituted impermissible double counting because it addressed the
same kind of harm that was fully accounted for by the § 2K2.1(b)(4)(A)
sentencing enhancement he received for possessing stolen firearms. However, the
kind of harm accounted for under § 2K2.1(b)(6), possession of a firearm during a
burglary, is conceptually distinct from the notion that a defendant should be
punished more severely for possessing a firearm that was stolen. Because the §
2K2.1(b)(4)(A) sentencing enhancement did not fully account for the kind of harm
addressed by § 2K2.1(b)(6), the district court did not err in applying both
enhancements in calculating McClure’s sentencing guidelines range.
AFFIRMED.
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