UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4977
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERRY WARD,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:09-cr-00406-JAB-1)
Submitted: April 21, 2011 Decided: May 11, 2011
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Terry Michael Meinecke, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jerry Ward pled guilty, pursuant to a plea agreement,
to one count of possession of firearms in furtherance of a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i)
(2006) (“Count Two”); and one count of possession of firearms by
a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)
(2006) (“Count Three”). He was sentenced to serve thirty months
on Count Three and the mandatory minimum of sixty months on
Count Two, to be served consecutively, for an aggregate term of
imprisonment totaling ninety months. Ward’s counsel filed a
brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967), stating that there are no meritorious issues for appeal,
but questioning whether the district court erred in its
application of U.S. Sentencing Guidelines Manual (“USSG”)
§ 2K2.1(b)(1)(A) (2009). Ward was advised of his right to file
a pro se supplemental brief but did not do so. We affirm.
Ward questions whether imposition of a two-point
enhancement in Count Three for possessing between three and
seven handguns, pursuant to USSG § 2K2.1(b)(1)(A), and the use
of two of those weapons to form the factual predicate for Count
Two, constitutes impermissible double counting. Section
2K2.1(b)(1)(A) provides a two-level enhancement if a defendant
possesses three to seven firearms. Application Note 4 to
§ 2K2.4 directs that, “[i]f a sentence under this guideline is
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imposed in conjunction with a sentence for an underlying
offense, do not apply any specific offense characteristic for
possession, brandishing, use, or discharge of an explosive or
firearm when determining the sentence for the underlying
offense.” This prohibition includes “any such enhancement that
would apply based on conduct for which the defendant is
accountable under § 1B1.3 (Relevant Conduct).” § 2K2.4 cmt.n.4.
“Double counting occurs when a provision of the Guidelines is
applied to increase punishment on the basis of a consideration
that had been accounted for by application of another Guideline
provision or by application of a statute.” United States v.
Reevey, 364 F.3d 151, 158 (4th Cir. 2004). The court presumes
double counting is proper where the Guidelines do not expressly
prohibit it. United States v. Hampton, 628 F.3d 654, 664 (4th
Cir. 2010).
We hold that the number of weapons involved was
irrelevant to Ward’s sentence imposed on Count Two, and was thus
unaccounted for by any other Guidelines provision. Thus, the
district court did not engage in impermissible double counting
when it applied a two-level increase under § 2K2.1(b)(1)(A) in
calculating the sentence imposed on Count Three. See United
States v. Terrell, 608 F.3d 679, 683 (10th Cir. 2010) (affirming
the district court’s application of a USSG § 2K2.1(b)(1)(A)
enhancement in determining the guideline range for the 21 U.S.C.
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§ 841(a)(1) (2006) conviction because “the number of weapons
involved . . . is a separate type of offense conduct than that
punished by § 924(c) itself.”). Therefore, we reject Ward’s
claim as meritless.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Ward’s conviction and ninety-month sentence.
This court requires that counsel inform Ward, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Ward requests that a petition be filed, but
counsel believes that such a petition would be frivolous,
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Ward. We dispense with oral argument because the
facts and legal conclusions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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