14‐2383‐cr
United States v. Liddon Young
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2015
No. 14‐2383‐cr
UNITED STATES OF AMERICA,
Appellee,
v.
LIDDON YOUNG,
Defendant‐Appellant.
________
Appeal from the United States District Court
for the Western District of New York
________
SUBMITTED: DECEMBER 7, 2015
DECIDED: JANUARY 29, 2016
________
Before: CABRANES, PARKER, and LOHIER, Circuit Judges.
________
On appeal from a July 1, 2014 judgment of the United States
District Court for the Western District of New York (Frank P. Geraci,
Jr., Judge) sentencing defendant‐appellant Liddon Young principally
to a term of imprisonment of fifteen years. We AFFIRM the
sentence insofar as it rests on the District Court’s rejection of
Young’s arguments for a downward departure and a variance, but
insofar as the sentence rests on the District Court’s application of
sentencing enhancements under U.S.S.G. § 2K2.1(b)(6)(B) and
U.S.S.G. § 3C1.1 and its denial of a sentencing adjustment under
U.S.S.G. § 3E1.1, we REMAND for resentencing consistent with this
opinion.
Judge LOHIER concurs in part and concurs in the judgment in
part in a separate opinion.
________
David C. Pilato, LaDuca Law Firm, Rochester,
NY, for Defendant‐Appellant.
Stephan J. Baczynski and Joseph J. Karaszewski,
Assistant United States Attorneys, for William J.
Hochul, Jr., United States Attorney for the
Western District of New York, Buffalo, NY, for
Appellee.
________
JOSÉ A. CABRANES, Circuit Judge:
The principal question presented is whether, in the
circumstances of this case, the imposition of sentencing
enhancements under both U.S.S.G. § 2K2.1(b)(5) and U.S.S.G.
§ 2K2.1(b)(6)(B) based on the same underlying conduct—
transferring firearms with reason to believe they would be used in
2
felony offenses—constituted “double‐counting” clearly prohibited
by the United States Sentencing Commission (the “Sentencing
Commission”).
Defendant‐appellant Liddon Young contends that imposing
both sentencing enhancements did constitute such prohibited
double‐counting, and on that basis appeals a July 1, 2014 judgment
of the United States District Court for the Western District of New
York (Frank P. Geraci, Jr., Judge) sentencing him principally to a term
of imprisonment of fifteen years. Young further argues that the
District Court erred by applying a sentencing enhancement for
obstruction of justice under U.S.S.G. § 3C1.1, refusing to apply an
adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1,
failing to consider his arguments in support of a downward
departure and a variance, and imposing a substantively
unreasonable sentence.
We find no error in the District Court’s decision not to
expressly discuss and reject Young’s arguments for a downward
departure and a variance. We conclude, however, that the District
Court’s application of the sentencing adjustments was in error.
Specifically, on the facts presented here, the District Court’s
imposition of a sentencing enhancement under § 2K2.1(b)(6)(B)
constituted “double‐counting” clearly prohibited by the Sentencing
Commission, and its rulings on adjustments under § 3C1.1 and
§ 3E1.1 were not supported by the requisite factual findings. Thus,
without reaching Young’s substantive‐unreasonableness argument,
we AFFIRM his sentence insofar as it rests on the District Court’s
3
rejection of his arguments for a downward departure and a
variance; insofar as the sentence rests on the District Court’s
application of sentencing enhancements under U.S.S.G.
§ 2K2.1(b)(6)(B) and U.S.S.G. § 3C1.1 and its denial of an adjustment
under U.S.S.G. § 3E1.1, we REMAND for resentencing consistent
with this opinion.
BACKGROUND
On May 14, 2013, Young was indicted for his role in a scheme
that involved the unlawful distribution of firearms. Without the
benefit of a plea agreement, he entered a plea of guilty to three
firearms violations.1
Prior to sentencing, a probation officer interviewed Young to
assist in preparing a presentence report. In discussing his offense
conduct, Young told the probation officer that he never sold guns to
known drug dealers and had no reason to think that the guns he
distributed would be used in connection with felony offenses. He
also told the probation officer that he never dealt in firearms before
meeting an individual named Paul Davis in 2012. The probation
officer concluded that Young was likely being untruthful on both
points.
1 Specifically, Conspiracy to Engage in the Business of Dealing Firearms
without a License (18 U.S.C. § 371); Unlawful Dealing in Firearms (18 U.S.C. §§
922(a)(1)(A) & 924(a)(1)(D)); and Selling Firearms to a Person Knowing or
Having Reasonable Cause to Believe that Such Person Is a Felon (18 U.S.C.
§§ 922(d)(1) & 924(a)(2)).
4
The District Court held a hearing to determine whether Young
had lied to the probation officer about his conduct. At the hearing,
Davis testified that he met Young in 2012, at which time Young was
already engaged in the illegal sale of firearms. According to Davis,
he and Young developed a business relationship. The two would
meet in Atlanta, where Young would sell guns to Davis, eight to ten
at a time. Davis would bring the guns to Rochester to sell them.
Davis made up to four such trips. Between Davis’s trips and direct
sales to other customers, Young sent between twenty‐five and fifty
guns—including AK‐47s, MAC‐10s, and TEC‐9s—to Rochester.
According to Davis, he and Young discussed their customers
early in their relationship. When Davis made his first trip
northward, Young inquired about who might purchase the guns in
Rochester. Davis told Young he planned to sell to two “cocaine and
marijuana dealers.” Young told Davis to be careful.
Young also spoke with Davis about Young’s preexisting
customers. He disclosed that he was selling firearms to his cousin, a
Rochester cocaine dealer named “Reggie” or “Reginald.” At one
point, Young gave Davis three firearms to deliver to this cousin.
An individual named Reggie Bullock—the drug‐dealing
cousin “Reggie” known to Davis—also testified. He told the Court,
contrary to Davis’s testimony, that Young had never provided him
with a gun. But he also testified that he was a cocaine dealer and
that he had once seen Young sell three guns, including a TEC‐9, to a
person Young knew to be Bullock’s primary source of drugs. Young
5
also took the stand, testifying that he never sold to anyone he knew
to be a drug dealer and had not engaged in trafficking prior to
meeting Davis.
Following the hearing, Judge Geraci articulated factual
findings on the record. He recognized that all three witnesses had
reason to fabricate testimony. But he credited Davis’s statement that
Young had provided him with guns to deliver to Young’s cousin
Reggie, a drug dealer. He also credited Davis’s testimony that
Young had been engaged in firearms dealing before the two met.
Judge Geraci declined to credit Young’s testimony that he did not
know Reggie Bullock to be in the drug business. Based on the
testimony described above and his credibility determinations, Judge
Geraci concluded that Young had had reason to believe that the
weapons he transferred would be used or possessed in connection
with other felony offenses. He also concluded that Young had lied
to the probation officer who prepared the presentence report
“regarding his knowledge, intent or reason to believe that the
weapons he sold would be used in connection with another felony
offense” and in telling the officer that he had not illegally sold
firearms prior to meeting Davis. Judge Geraci accordingly imposed
sentencing enhancements under U.S.S.G. §§ 2K2.1(b)(6)(B) (for
transferring a firearm with reason to believe it would be used in
connection with another felony)2 and 3C1.1 (for obstruction of
2 U.S.S.G. § 2K2.1(b)(6)(B) provides: “If the defendant—(B) used or
possessed any firearm or ammunition in connection with another felony offense;
or possessed or transferred any firearm or ammunition with knowledge, intent,
6
justice).3 He also ruled that, in light of his application of the
obstruction enhancement, an adjustment for acceptance of
responsibility under U.S.S.G. § 3E1.1 was unavailable.
These rulings, combined with Young’s base offense level of 22,
two enhancements Young does not challenge on appeal,4 and a
criminal history category of III, initially yielded a United States
Sentencing Guidelines (“Guidelines”) calculation of 292–365 months.
The bottom of this range, however, exceeded the 20‐year statutory
maximum; thus, Young’s Guidelines sentence was 20 years. See
United States v. Dorvee, 616 F.3d 174, 180‐81 (2d Cir. 2010).
Prior to sentencing, Young requested that the District Court
(1) depart downward because his criminal‐history category
significantly overrepresented the seriousness of his criminal past,
and (2) vary from the Guidelines range based on such factors as his
or reason to believe that it would be used or possessed in connection with
another felony offense, increase [the offense level] by 4 levels.” U.S. Sentencing
Guidelines Manual § 2K2.1(b)(6)(B) (U.S. Sentencing Comm’n 2013) (“2013
U.S.S.G.”).
3 U.S.S.G. § 3C1.1 provides: “If (1) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the administration of justice with
respect to the investigation, prosecution, or sentencing of the instant offense of
conviction, and (2) the obstructive conduct related to (A) the defendant’s offense
of conviction and any relevant conduct; or (B) a closely related offense, increase
the offense level by 2 levels.” 2013 U.S.S.G. § 3C1.1.
4 These enhancements were imposed under U.S.S.G. §§ 2K2.1(b)(1)(C)
(offense involving between 25 and 99 firearms) and 2K2.1(b)(5) (trafficking of
firearms).
7
difficult upbringing, his close relationship with his family, and the
need to avoid unwarranted disparities in sentencing.5 The Court did
Title 18, United States Code, Section 3553 provides:
5
(a) Factors to be considered in imposing a sentence.—The court
shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph
(2) of this subsection. The court, in determining the particular
sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for
the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the
defendant; and
(D) to provide the defendant with needed educational
or vocational training, medical care, or other
correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for—
(A) the applicable category of offense committed by the
applicable category of defendant as set forth in the
guidelines—
(i) issued by the Sentencing Commission pursuant
to section 994(a)(1) of title 28, United States Code,
subject to any amendments made to such
guidelines by act of Congress (regardless of
whether such amendments have yet to be
incorporated by the Sentencing Commission into
amendments issued under section 994(p) of title
28); and
8
not explicitly address the arguments made in connection with these
requests and sentenced Young principally to a term of fifteen years’
imprisonment.
On appeal, Young argues that the District Court erred by (1)
imposing a sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B)
(the “other‐felony‐offense enhancement”); (2) imposing a sentencing
(ii) that, except as provided in section 3742(g), are
in effect on the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised
release, the applicable guidelines or policy statements
issued by the Sentencing Commission pursuant to
section 994(a)(3) of title 28, United States Code, taking
into account any amendments made to such guidelines
or policy statements by act of Congress (regardless of
whether such amendments have yet to be incorporated
by the Sentencing Commission into amendments
issued under section 994(p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to
section 994(a)(2) of title 28, United States Code, subject
to any amendments made to such policy statement by
act of Congress (regardless of whether such
amendments have yet to be incorporated by the
Sentencing Commission into amendments issued
under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in
effect on the date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities
among defendants with similar records who have been
found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the
offense.
9
enhancement under U.S.S.G. § 3C1.1 (the “obstruction
enhancement”); (3) declining to apply a sentencing adjustment
under U.S.S.G. § 3E1.1 (the “acceptance‐of‐responsibility
adjustment”); (4) failing to explicitly address Young’s arguments in
support of a downward departure and a downward variance; and
(5) imposing a substantively unreasonable sentence.
There was no error in the District Court’s decision not to
expressly discuss and reject Young’s arguments for a downward
departure and a variance. Nothing in the record suggests that Judge
Geraci misunderstood his authority to depart downward, and in
imposing the sentence he plainly considered the relevant factors
under 18 U.S.C. § 3553(a). We conclude, however, that the District
Court erred in imposing the other‐felony‐offense and obstruction
enhancements and in declining to apply the acceptance‐of‐
responsibility adjustment. On this basis we vacate and remand for
resentencing. In light of this disposition, we need not and do not
reach Young’s argument that his sentence is substantively
unreasonable.
DISCUSSION
We review sentences “under a deferential abuse‐of‐discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007). “We must
first ensure that the district court committed no significant
procedural error, such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting a
10
sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” United States v. Tutty, 612 F.3d 128,
130–31 (2d Cir. 2010) (internal quotation marks omitted). “Although
a district court . . . is not required to impose the now‐advisory
Guidelines‐recommended sentence, the court is nonetheless
normally required to calculate the sentencing range that the
Guidelines recommend.” United States v. Carr, 557 F.3d 93, 103 (2d
Cir. 2009).
We also review sentences for substantive reasonableness,
“reversing only when the trial court’s sentence cannot be located
within the range of permissible decisions.” Tutty, 612 F.3d at 131
(internal quotation marks omitted). “In reviewing the substantive
reasonableness of a sentence, we take into account the totality of the
circumstances, giving due deference to the sentencing judge’s
exercise of discretion, and bearing in mind the institutional
advantages of district courts.” United States v. Chu, 714 F.3d 742, 746
(2d Cir. 2013) (internal quotation marks omitted). We “do not
presume that a Guidelines sentence is necessarily substantively
reasonable.” United States v. Messina, 806 F.3d 55, 66 (2d Cir. 2015).
If a sentence is tainted with procedural error, “we may
remand to the district court for resentencing without proceeding to a
substantive review of the original sentence, or, where circumstances
warrant, we may review for both procedural error and substantive
unreasonableness in the course of the same appeal.” Tutty, 612 F.3d
at 131 (internal citations omitted).
11
I. Requests for Downward Departure & Variance
Young requested that the District Court depart downward
because his criminal‐history category overrepresented the
seriousness of his criminal past, see 2013 U.S.S.G. § 4A1.3(b)(1), and
that the Court vary from the Guidelines range based on a number of
factors relevant under § 3553(a). He contends that the District Court
erred by not formally ruling on his requests and failing to discuss
his arguments during sentencing. We disagree.
A district court’s decision not to depart downward is “within
the court’s broad discretion and rarely reviewed on appeal.” United
States v. Scott, 387 F.3d 139, 143 (2d Cir. 2004). “A district court is
not obliged to give reasons for refusing to depart,” and, where a
defendant has not shown a violation of law or misapplication of the
Guidelines, refusal to depart warrants vacatur only if the defendant
“point[s] to clear evidence of a substantial risk that the judge
misapprehended the scope of his departure authority.” Id. (internal
quotation marks omitted). “A district court’s silence concerning its
refusal to depart downward, generally, does not support an
inference that the district court misapprehended its scope of
authority.” Id. In this case, Young offers no reason why we should
suppose that the District Court misunderstood its authority to
depart, and we do not think it did. The Court was merely silent on
the point.
Nor need a district judge imposing a sentence recite every
§ 3553(a) argument advanced by a defendant. Rather, we presume
12
that the judge properly considered the sentencing factors even in the
absence of protracted discussion pertaining to each of the factors
and all of the defendant’s contentions. United States v. Brown, 514
F.3d 256, 264 (2d Cir. 2008); United States v. Fernandez, 443 F.3d 19, 30
(2d Cir. 2006), abrogated on other grounds by Rita v. United States, 551
U.S. 338 (2007). Here, Young identifies nothing in the record
suggesting that Judge Geraci failed to consider the § 3553(a) factors
or his arguments in support of a variance, and indeed the record
shows that Judge Geraci appropriately discharged his obligations
under § 3553(a). See, e.g., App. 374 (discussing the factors
enumerated in § 3553(a)). We accordingly reject this argument.
II. U.S.S.G. § 2K2.1(b)(6)(B) (Other Felony Offense
Enhancement)
Section 2K2.1(b)(6)(B) provides for a four‐point enhancement
if the defendant “[u]sed or possessed any firearm or ammunition in
connection with another felony offense; or possessed or transferred
any firearm or ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in connection with
another felony offense.” 2013 U.S.S.G. § 2K2.1(b)(6)(B). Young
challenges the application of this enhancement on three separate
grounds. He argues, first, that the District Court clearly erred in
crediting Davis’s testimony that Young gave him a gun to deliver to
Young’s cousin, a drug dealer named Reggie; second, that even if
that testimony were credited, the evidence adduced at the hearing
did not support a reasonable inference that Young had reason to
believe the firearms he distributed would be used in connection with
13
other felonies; and third, that applying the enhancement constituted
impermissible “double‐counting.”
Young’s first argument is easily dispatched. The District
Court’s decision to credit Davis’s testimony, even in the face of
contrary testimony from Bullock, is “entitled to substantial
deference.” United States v. Norman, 776 F.3d 67, 78 (2d Cir. 2015). It
was reasonable not to believe the testimony from Bullock, who had
cause to lie about having received guns from Young. Indeed, Young
himself suggests elsewhere in his brief that Bullock’s testimony was
not credible. We have no reason to disturb the District Court’s
credibility determination.6
Young’s second argument is no more convincing than his first.
The District Court specifically found that Young unlawfully sold a
large number of unusually dangerous weapons—AK‐47s and TEC‐
9s—to people he knew to be drug dealers. That is sufficient to
support an inference that he had reason to believe the guns would
be used in connection with other felonies. See United States v. Martin,
78 F.3d 808, 811–12 (2d Cir. 1996) (affirming application of
enhancement based on defendant’s sale of a large number of easily
concealable handguns in “unusual circumstances”).
6 Young raises the same clear‐error argument in connection with his
challenges to application of the obstruction enhancement and non‐application of
the acceptance‐of‐responsibility adjustment. Because the District Court’s rulings
concerning those adjustments turned on the same credibility determinations
discussed above, we also reject Young’s clear‐error argument in those contexts.
14
Young’s final argument, however, has merit. He contends
that applying the other‐felony‐offense enhancement constituted
impermissible “double‐counting” because the District Court also
applied a four‐level enhancement under U.S.S.G. § 2K2.1(b)(5) for
“trafficking” in firearms. He is correct.7
7 Our concurring colleague suggests that an “obstacle” stands in the way
of our reviewing Young’s double‐counting argument: “Young never advanced
this analysis on appeal or before the District Court, and the Government has had
no opportunity to rebut it.” Concurring Op. 3.
We think that Young has adequately presented his double‐counting
argument on appeal. See, e.g., Defendant’s Br. 32 (arguing that application of
both §§ 2K2.1(b)(5) and 2K2.1(b)(6)(B) based on defendant’s transfer of “several
guns to individuals who he had reason to believe would use them unlawfully
. . . . amounts to impermissible double counting”); Defendant’s Reply Br. 7
(relying on United States v. Johns, 732 F.3d 736 (7th Cir. 2013), in which the
Seventh Circuit interpreted Application Note 13(D) to § 2K2.1 to hold that
application of both enhancements constituted improper double‐counting). We
can agree with the concurrence that this argument might have been advanced
somewhat more cogently; just the same, we are not at liberty to ignore it.
As for our concurring colleague’s observation that Young does not
appear to have advanced this analysis below, we do not disagree. We have
found nothing in the record indicating that Young argued double‐counting
before the District Court. The government, for its part, does not say whether he
did or did not, because the government does not respond to Young’s double‐
counting argument at all. Accordingly, even if Young did not present this
argument below, the government has “waived waiver.” See United States v.
Quiroz, 22 F.3d 489, 491 (2d Cir. 1994) (internal quotation marks omitted).
Of course, this is an imperfect state of affairs: neither party (it appears)
argued this issue before the District Court, and only one of them has argued it
here. We benefit greatly when, as typically occurs, questions are passed on
below and fully aired on appeal. But the government’s failure to brief either
forfeiture or double‐counting, though it makes our task more difficult, does not
relieve us of our duty to perform it.
15
Simple “double‐counting”—applying more than one
Guidelines enhancement based on the same conduct—is
unobjectionable, and indeed commonplace. United States v. Maloney,
406 F.3d 149, 152–53 (2d Cir. 2005). But double‐counting is
impermissible if the Guidelines instruct against it. Id.; see United
States v. Morris, 350 F.3d 32, 37 (2d Cir. 2003) (rejecting double‐
counting argument because the defendant “offered nothing in the
Sentencing Guidelines or relevant statutes reflecting an intent to
preclude the double counting the District Court employed”).
We conclude that the relevant Guidelines provisions and
Application Notes indicate that the Sentencing Commission
intended to preclude application of the other‐felony‐offense
enhancement in the circumstances of this case. When a defendant
receives a sentencing enhancement for “trafficking” in firearms
under § 2K2.1(b)(5), Application Note 13(D) to § 2K2.1 prohibits
imposition of an enhancement under § 2K2.1(b)(6)(B) based on the
defendant’s transfer of a firearm with reason to believe it will be
used in another felony offense.
We begin with the text of § 2K2.1(b)(6)(B). The other‐felony‐
offense enhancement applies if a defendant “used or possessed any
firearm or ammunition in connection with another felony offense; or
possessed or transferred any firearm or ammunition with
knowledge, intent, or reason to believe that it would be used or
possessed in connection with another felony offense.” 2013 U.S.S.G.
§ 2K2.1(b)(6)(B). The provision thus consists of two clauses, each of
which describes a different set of circumstances. The first clause—
16
the in‐connection‐with clause—concerns defendants who use or
possess firearms in connection with another felony offense. The
second—the reason‐to‐believe clause—concerns defendants who
possess firearms, or transfer them to others, with knowledge, intent,
or reason to believe that they will be used or possessed in
connection with another felony offense. The District Court
concluded that this second clause applied to Young’s conduct: it
found that he had knowledge, intent, and reason to believe that the
weapons he transferred would be used in connection with other
felonies (i.e., drug trafficking).
Young also received a four‐level enhancement under U.S.S.G.
§ 2K2.1(b)(5), which applies if “the defendant engaged in the
trafficking of firearms.” 2013 U.S.S.G. § 2K2.1(b)(5). Application
Note 13(A) to § 2K2.1 describes what is meant by “trafficking of
firearms,” explaining that the enhancement applies if a defendant:
(i) transported, transferred, or otherwise disposed of
two or more firearms to another individual, or
received two or more firearms with the intent to
transport, transfer, or otherwise dispose of
firearms to another individual; and
(ii) knew or had reason to believe that such conduct
would result in the transport, transfer, or disposal
of a firearm to an individual—
(I) whose possession or receipt of the
firearm would be unlawful; or
(II) who intended to use or dispose of the
firearm unlawfully.
17
Application Note 13(D) describes the interaction of the
“trafficking” enhancement with the other‐felony‐offense
enhancement. It states that if the “trafficking” enhancement applies,
the other‐felony‐offense enhancement also applies “[i]f the
defendant used or transferred one of such firearms in connection with
another felony offense (i.e., an offense other than a firearms possession
or trafficking offense).” 2013 U.S.S.G. § 2K2.1, Application Note
13(D) (emphasis supplied).
These provisions, read together, preclude application of the
other‐felony‐offense enhancement to Young. The District Court
found that Young had knowledge, intent, and reason to believe that
the guns he transferred would be used in connection with other
felonies. In the normal run of things, that is a valid reason to apply
the other‐felony‐offense enhancement. But when the “trafficking”
enhancement also applies, as it does in this case, Application Note
13(D) limits the application of the other‐felony‐offense enhancement
to those situations in which “the defendant used or transferred one
of such firearms in connection with another felony offense,”
incorporating language from the in‐connection‐with clause set forth
in § 2K2.1(b)(6)(B) (emphasis supplied). See note 2, ante. No
mention is made of situations—like this one—in which the
defendant transferred a firearm not in connection with another felony
offense, but with knowledge, intent, or reason to believe it would later be
used in connection with another felony offense, which would have
incorporated language from the reason‐to‐believe clause set forth in
§ 2K2.1(b)(6)(B).
18
The omission of such an application compels the conclusion
that the application of the other‐felony‐offense enhancement is
limited to the situations specifically addressed in Application Note
13(D). Put another way, by expressly mentioning one application of
the enhancement and conspicuously leaving out the other, the
Sentencing Commission said clearly—by negative implication, to be
sure, but clearly—that when the “trafficking” enhancement applies,
a sentence may be enhanced under the in‐connection‐with clause but
not under the reason‐to‐believe clause. See VKK Corp. v. Nat’l
Football League, 244 F.3d 114, 130 & n.12 (2d Cir. 2001) (“To express
or include one thing implies the exclusion of the other . . . .”
(alteration and internal quotation marks omitted)); United States v.
Ortega, 94 F.3d 764, 770‐71 (2d Cir. 1996) (relying in part on the
canon expressio unius est exclusio alterius to hold that a Guidelines
provision stating that “[p]rior sentences . . . are to be counted in the
criminal history score, including uncounseled misdemeanor
sentences where imprisonment was not imposed” implicitly excluded
from the criminal‐history computation uncounseled misdemeanor
sentences where imprisonment was imposed (emphasis in original)
(internal quotation marks omitted)). The Application Note’s text is,
in our view, very much the equivalent of that which the concurrence
concedes would prohibit double‐counting here: an “express[ ]
provi[sion] [stating] that an additional enhancement under §
2K2.1(b)(6) is permissible ‘only’ when trafficking occurs . . . in
connection with a felony.” Concurring Op. 4. Accordingly, we
conclude that transferring a firearm with knowledge, intent, or
reason to believe it will be used in connection with another felony
19
cannot support an enhancement in a case where the “trafficking”
enhancement also applies.
As is clear from the analysis above, however, transferring a
firearm in connection with another felony offense can support a
§ 2K2.1(b)(6)(B) enhancement in “trafficking” cases. One might
argue (particularly in view of the broad definition of “in connection
with” set out in Application Note 14(A)) that transferring a firearm
with knowledge, intent, or reason to believe it will be used in
connection with another felony, without more, can be characterized
as transferring a firearm in connection with that other felony. But it is
not plausible to read § 2K1.1 in that fashion. If the phrase “in
connection with another felony offense” in Application Note 13(D)
includes the concept of transferring a firearm with knowledge,
intent, or reason to believe it will be used in connection with another
felony offense, the phrase presumably embraces the same concept
where it is used in § 2K2.1(b)(6)(B). Mertens v. Hewitt Assocs., 508
U.S. 248, 260 (1993) (identical language appearing in two places in
the same statute should be given the same meaning in each
instance); United States v. Potes‐Castillo, 638 F.3d 106, 112 (2d Cir.
2011) (ordinary principles of statutory construction apply to
Guidelines provisions and their explanatory commentary). But if
that is so, the second, reason‐to‐believe clause in § 2K2.1(b)(6)(B)
does no work at all. The Sentencing Commission could have
reached the same substantive result by stopping after the first, in‐
connection‐with clause. We accordingly reject this reading of the
provision. See United States v. Aleynikov, 676 F.3d 71, 81 (2d Cir.
20
2012) (“[A] statute should be construed so that effect is given to all
its provisions, so that no part will be inoperative or superfluous,
void or insignificant.”).
Our construction of § 2K2.1 yields a sensible result in light of
the Sentencing Commission’s apparent concern (in this particular
instance) with double‐counting. The “trafficking” enhancement
applies in situations (among others) in which a defendant transfers
two or more firearms to another person with reason to believe that
that person intends to use the firearms unlawfully. 2013 U.S.S.G.
§ 2K2.1, Application Note 13(A). But for Application Note 13(D),
such conduct would also support application of the other‐felony‐
offense enhancement pursuant to the reason‐to‐believe clause,
provided the transferee intended to use the firearms not just
unlawfully but in connection with another felony. Thus,
Application Note 13(D) avoids the simultaneous application of two
provisions likely in many circumstances to punish the same
behavior.8
8 We acknowledge, as the concurrence emphasizes, that Application Note
13(D) is not perfectly tailored to address all double‐counting concerns that might
arise through application of the provisions in question. Plainly, the “trafficking”
enhancement and § 2K2.1(b)(6)(B)’s reason‐to‐believe clause are not coextensive
in the conduct to which they apply; the latter applies when a person “possesse[s]
or transfer[s] any firearm . . . with knowledge, intent, or reason to believe that it
[will] be used or possessed in connection with another felony offense,” 2013
U.S.S.G. § 2K2.1(b)(6)(B) (emphasis supplied), whereas the former can be
triggered by transfer of a firearm with reason to believe it will be possessed, used
or disposed of merely unlawfully. And Application Note 13(D) appears to permit
imposition of a “trafficking” enhancement in cases where the defendant also
21
In sum, we conclude that application of the other‐felony‐
offense enhancement to Young constituted impermissible double‐
counting. Accordingly, the District Court erred in imposing the
enhancement, and we must vacate and remand for resentencing.9
III. U.S.S.G. § 3C1.1 (Obstruction of Justice Enhancement)
Young next argues that the District Court erred in applying an
enhancement for obstruction of justice under U.S.S.G. § 3C1.1. We
agree.
Section 3C1.1 provides for a two‐level enhancement if “(1) the
defendant willfully obstructed or impeded, or attempted to obstruct
or impede, the administration of justice with respect to the . . .
sentencing of the instant offense of conviction, and (2) the
obstructive conduct related to (A) the defendant’s offense of
conviction and any relevant conduct; or (B) a closely related
receives an enhancement under U.S.S.G. § 2K2.1(b)(6)(A)—which provides for a
four‐level increase if the defendant “possesse[s] or transfer[s] any firearm or
ammunition with knowledge, intent, or reason to believe that it [will] be
transported out of the United States”—even though conduct supporting a §
2K2.1(b)(6)(A) enhancement might often support a “trafficking” enhancement as
well. But even if imperfectly tailored, Application Note 13(D) appears
reasonably calculated to address a legitimate concern about double‐counting and
produces a sensible result in furtherance of that end. This buttresses our reading
of the Guidelines’ text.
9 Though it is not clear to us that the record would support application of
the enhancement on the ground that Young “used or possessed a[ ] firearm . . . in
connection with another felony,” we do not foreclose the possibility that on
remand the District Court could make such a finding.
22
offense.” 2013 U.S.S.G. § 3C1.1. Covered conduct includes
“providing materially false information to a probation officer in
respect to a presentence . . . investigation.” 2013 U.S.S.G. § 3C1.1,
Application Note 4(H). It is “essential” that a court applying this
enhancement make “a finding that the defendant had the specific
intent to obstruct justice, i.e., that the defendant consciously acted
with the purpose of obstructing justice.” United States v. Brown, 321
F.3d 347, 351 (2d Cir. 2003) (internal quotation marks omitted). It is
not sufficient merely to find that the defendant made materially
false statements concerning his offense conduct. United States v.
Bradbury, 189 F.3d 200, 205 (2d Cir. 1999).
Here, the District Court found that Young made two
materially false statements to the probation officer: that he did not
know he was selling guns to drug dealers, and that he did not traffic
in guns before meeting Davis. On this basis it imposed the
enhancement. The government specifically requested that the Court
enter a finding that in making those false statements, Young “had
the intent to obstruct justice.” App. 358. Judge Geraci replied that
there was no need to “articulate [Young’s] motivation” in speaking
falsely—only to find that the statements “were materially false.”
App. 359. But there was such a need: material falsity is not enough
to support application of the enhancement. Bradbury, 189 F.3d at
205.
The government argues that a finding of specific intent to
obstruct justice is not necessary when a “defendant has clearly lied
in a statement made under oath.” United States v. Lincecum, 220 F.3d
23
77, 80 (2d Cir. 2000) (internal quotation marks omitted). When the
clearly false statement was made under oath, the court need only
“point to the obvious lie and find that the defendant knowingly
made a false statement on a material matter.” Id. (internal quotation
marks omitted). But here, the false statements the District Court
identified were not made under oath. They were made during an
interview with a probation officer. App. 356 (“[T]his Court finds
that there’s sufficient evidence that the defendant obstructed the
administration of justice by providing false statements to the
probation officer.”). Accordingly, the rule of Lincecum does not
apply.
We do not mean to imply, of course, that the District Court
could not have found on this record that Young specifically
intended to obstruct justice, or that the District Court could not have
imposed the enhancement based on Young’s sworn testimony
without making such a finding. But those determinations are for the
District Court in the first instance. We leave them for its
consideration on remand.
IV. U.S.S.G. § 3E1.1 (Acceptance of Responsibility
Enhancement)
Even without making a finding that Young specifically
intended to obstruct justice, the District Court could reasonably have
concluded that he was not entitled to an adjustment for acceptance
of responsibility under U.S.S.G. § 3E1.1. But in refusing to apply the
adjustment, the Court seems to have relied significantly, perhaps
exclusively, on Application Note 4 to § 3E1.1, which reads: “Conduct
24
resulting in an enhancement under § 3C1.1 (Obstructing or
Impeding the Administration of Justice) ordinarily indicates that the
defendant has not accepted responsibility for his criminal conduct.
There may, however, be extraordinary cases in which adjustments
under both [provisions] may apply.” 2013 U.S.S.G. § 3C1.1,
Application Note 4; see App. 356 (“Based upon the Court’s finding
that [Young] provided material[ly] false statement[s] to the
probation officer who was conducting the presentence investigation,
this is conduct that’s inconsistent with the defendant’s acceptance of
responsibility, and . . . the Court finds that there are no
extraordinary circumstances that would justify the defendant
receiving a three step reduction . . . .”).
Thus, it appears that the District Court, having imposed the
obstruction enhancement, declined to adjust downward for
acceptance of responsibility because no “extraordinary”
circumstances justified the application of both adjustments. In other
words, the Court’s ruling on the acceptance‐of‐responsibility
adjustment was premised on its ruling on the obstruction
enhancement. The latter having been made in error, the former
must fall with it, and application of the acceptance‐of‐responsibility
adjustment considered on remand.
V. Substantive Unreasonableness
Because we vacate Young’s sentence and remand for
resentencing on the basis of procedural error, we need not, and do
not, consider his substantive‐unreasonableness argument. See Tutty,
25
612 F.3d at 131 (“Where there is procedural error, we may remand to
the district court for resentencing without proceeding to a
substantive review of the original sentence . . . .”).
CONCLUSION
In sum, we hold that there was no error in the District Court’s
decision not to expressly discuss and reject Young’s arguments for a
downward departure and a variance. But we also hold that the
District Court’s application of the other‐felony‐offense enhancement
(U.S.S.G. § 2K2.1(b)(6)(B)) constituted impermissible double‐
counting clearly prohibited by the Guidelines, and that its rulings
concerning the obstruction enhancement (U.S.S.G. § 3C1.1) and the
acceptance‐of‐responsibility adjustment (U.S.S.G. § 3E1.1) were not
supported by the necessary factual findings. In light of these
holdings, we do not reach Young’s argument that his sentence was
substantively unreasonable. We thus REMAND for resentencing
consistent with this opinion.
26
1 LOHIER, Circuit Judge, concurring:
2 I agree with the majority’s resolution of virtually every issue on appeal,
3 including the challenged enhancement under United States Sentencing Guideline
4 § 3C1.1. Even the ultimate outcome reached by the majority on the double
5 counting issue under § 2K2.1(b)(5), § 2K2.1(b)(6)(B), and § 2K2.1’s Application
6 Note 13(D) is sensible. But I am not convinced that these provisions
7 unambiguously work in tandem to preclude application of the other‐felony‐
8 offense enhancement to Liddon Young as impermissible double counting.
9 Because the provisions, and the intended effect of Application Note 13(D) in
10 particular, are in my view ambiguous, I would invoke the rule of lenity to
11 uphold Young’s challenge to the enhancement. As to that issue, therefore, I
12 concur in the judgment.
13 I.
14 We have suggested that double counting is impermissible only when the
15 applicable Guideline or statute reflects an intent to preclude the application of
16 two or more enhancements in a single sentence. See United States v. Reyes, 557
17 F.3d 84, 87 (2d Cir. 2009) (“[D]efendant has not pointed to any passage of either
18 the Guidelines or a statute that reflects a legislative intent to preclude the
1
1 application of both the . . . enhancement and a[n] . . . adjustment in a single
2 sentence.”); United States v. Morris, 350 F.3d 32, 37 (2d Cir. 2003) (holding that
3 “[a]s long as the court does not augment a sentence in contravention of the
4 applicable statute or Sentencing Guideline, no forbidden double counting
5 occurs,” and concluding that “[d]efendant has offered nothing in the Sentencing
6 Guidelines or relevant statutes reflecting an intent to preclude the double
7 counting the District Court employed, and has therefore not shown any
8 impermissible double counting”) (quotation marks omitted); cf. United States v.
9 Vizcarra, 668 F.3d 516, 525‐27 (7th Cir. 2012) (summarizing Second Circuit
10 precedent as such); but see United States v. Maloney, 406 F.3d 149, 152 (2d Cir.
11 2005) (allowing double counting “where that is the result clearly intended by
12 Congress and the Sentencing Commission”). This presumption in favor of
13 double counting rests on the Commission’s general endorsement of the
14 cumulative application of multiple adjustments in Application Note 4(A) to
15 Guideline § 1B1.1.
16 The majority advances a narrow textual analysis of § 2K2.1(b)(5),
17 § 2K2.1(b)(6)(B), and Application Note 13(D) and concludes that the “application
18 of the other‐felony‐offense enhancement . . . constituted impermissible double‐
2
1 counting clearly prohibited by the Guidelines.” As the majority reads
2 Application Note 13(D), if § 2K2.1(b)(5) applies, then the application of
3 § 2K2.1(b)(6)(B) is plainly confined to those cases in which at least one of the
4 firearms was transferred directly “in connection with” another felony offense.
5 Under this view, the enhancement under § 2K2.1(b)(6)(B) does not apply when
6 the trafficker only has “reason to believe” that the firearms would facilitate
7 another felony offense and the tie between the trafficking and the separate felony
8 offense is weaker.
9 II.
10 As an initial matter, Young never advanced this analysis on appeal or
11 before the District Court, and the Government has had no opportunity to rebut it.
12 Setting that obstacle aside, however, there are three reasons to be somewhat
13 skeptical of the majority’s analysis.
14 A.
15 First, the language of Application Note 13(D) does not clearly limit the
16 application of § 2K2.1(b)(6)(B). Instead, the note refers exclusively to the “in
17 connection with” language that appears in § 2K2.1(b)(6) when explaining the
18 circumstances in which double counting must (or, as the application note phrases
3
1 it, “would”) occur. Had the application note further expressly provided that an
2 additional enhancement under § 2K2.1(b)(6) is permissible “only” when
3 trafficking occurs more directly in connection with a felony, that language would
4 plainly foreclose, as impermissible double counting, an additional enhancement
5 under the “reason to believe” prong of § 2K2.1(b)(6). But Application Note 13(D)
6 doesn’t expressly preclude double counting under the “reason to believe” prong
7 of § 2K2.1(b)(6)(B); it certainly doesn’t do so with the clarity that we’ve come to
8 demand before concluding that the Commission intended to preclude double
9 counting. See, e.g., United States v. Leung, 360 F.3d 62, 68‐69 (2d Cir. 2004)
10 (relying on an application note that “makes clear” the Commission’s intention
11 with express language indicating that it would “prevent[] ‘double counting’ of
12 offense behavior” (quoting U.S.S.G. § 3D1.2(c), cmt. n. 5)).
13 In fact, the immediately preceding sentence in Application Note 13(D)
14 appears to explicitly endorse double counting in a similar context. It instructs
15 sentencing judges to “apply both subsections (b)(1) and (b)(5)” “[i]n a case in
16 which three or more firearms were both possessed and trafficked.” Subsection
17 (b)(5) is the trafficking enhancement, while subsection (b)(1) applies “[i]f the
18 offense involved three or more firearms.” Following that sentence, it is entirely
4
1 possible that the Commission intended that both enhancements “also would
2 apply” (assuming their respective criteria are satisfied) in a case in which the
3 transfer of firearms facilitated another nonfirearms felony.
4 Had the Commission actually intended to preclude double counting in this
5 context through Application Note 13(D), it presumably would have also referred
6 to subsection (b)(6)(A), which applies to a defendant who “transferred” a firearm
7 with “knowledge, intent, or reason to believe” that it would be transported out of
8 the United States, or continued to refer generally to subsection (b)(6), and not
9 amended the note to refer only to subsection (b)(6)(B). The Commission added
10 prong (A) to § 2K2.1(b)(6) in order to ensure that we treat that conduct in the
11 same way that we treat the conduct now described in the second clause of
12 subsection (b)(6)(B). See U.S. Sentencing Guidelines Manual app. C, amend. 753
13 (2011) (“Likewise, possessing or transferring a firearm with knowledge, intent, or
14 reason to believe that it would be transported out of the United States is conduct
15 sufficiently similar in seriousness to possessing or transferring a firearm with
16 knowledge, intent, or reason to believe that it would be used or possessed in
17 connection with another felony offense to warrant similar punishment.”). In
18 doing so, the Commission cited United States v. Juarez, 626 F.3d 246 (5th Cir.
5
1 2010), in which the Fifth Circuit affirmed the application of both § 2K2.1(b)(5)
2 and § 2K2.1(b)(6) enhancements to the same conduct, namely, the transfer of
3 firearms with reason to believe that they would be illegally smuggled into
4 Mexico. The Commission’s stated purpose in amending § 2K2.1(b)(6) and its
5 reliance on Juarez cast doubt on the majority’s suggestion that the Commission
6 intended that both § 2K2.1(b)(5) and § 2K2.1(b)(6)(A) would apply to a defendant
7 who transfers firearms with reason to believe that the firearms will be exported,
8 but that only § 2K2.1(b)(5) would apply to a defendant who transfers firearms
9 with reason to believe that the firearms will be used in connection with a felony
10 offense in the United States.
11 B.
12 The second reason to be skeptical of the majority’s analysis is that
13 § 2K2.1(b)(5) and § 2K2.1(b)(6)(B) (including the “reason to believe” clause of the
14 latter provision) tackle different harms. See Maloney, 406 F.3d at 153 (“[W]e
15 have consistently held that double counting is permissible in calculating a
16 Guidelines sentence where, as here, each of the multiple Guidelines sections
17 applicable to a single act serves a distinct purpose or represents a discrete
18 harm.”). The trafficking enhancement under § 2K2.1(b)(5) applies when a
6
1 defendant transfers two or more firearms with reason to believe that the firearms
2 would be used unlawfully, whether or not the unlawful use constitutes a felony.
3 Subsection (b)(6)(B) applies if at least one of these firearms is transferred directly
4 or indirectly in connection with a felony; to my mind, the conduct captured by
5 the subsection represents a greater harm and risk of harm than merely using a
6 firearm unlawfully. And I have trouble seeing how a gun trafficker who
7 transfers at least one firearm with “reason to believe” that it would be used in
8 connection with another felony offense is less culpable in any meaningful way
9 than a trafficker who does so directly in connection with another felony offense.
10 C.
11 Third, no court has adopted the majorityʹs interpretation of Application
12 Note 13(D). To the contrary, our sister circuits have affirmed the imposition of
13 both enhancements under what appear to be similar circumstances. See, e.g.,
14 United States v. Fields, 608 F. App’x 806 (11th Cir. 2015); United States v.
15 Stebbins, 523 F. App’x 1, 2 (1st Cir. 2013).
16 For these reasons, I would conclude that the two Guidelines provisions
17 and Application Note 13(D) neither clearly permit nor clearly preclude double
18 counting in this case.
7
1 III.
2 As I explained above, however, our precedent appears to presume that the
3 Commission intends to permit double counting in the absence of a clear bar. See,
4 e.g., Reyes, 557 F.3d at 87.
5 In the context of an application note that injects ambiguity, the
6 presumption is simply wrong‐headed insofar as it means that textual
7 ambiguity—which may in some cases, as here, overlap with the absence of a
8 “clear” bar against double counting—works to the disadvantage rather than
9 advantage of defendants at sentencing. Such a presumption runs counter to the
10 rule of lenity, which requires that we resolve any relevant ambiguity in Young’s
11 favor, not against him.1 See Robers v. United States, 134 S. Ct. 1854, 1859 (2014)
12 (“[T]he rule of lenity applies only if, after using the usual tools of statutory
1 We have assumed without directly concluding that the rule of lenity applies to
advisory (as opposed to mandatory) Guidelines after United States v. Booker, 543
U.S. 220, 259 (2005). See United States v. McGee, 553 F.3d 225, 229 (2d Cir. 2009)
(applying the rule of lenity, without analysis, to the advisory Guidelines, citing
United States v. Simpson, 319 F.3d 81, 86‐87 (2d Cir. 2002) (holding that the rule
of lenity applies to the mandatory Guidelines)); United States v. Rivera, 662 F.3d
166, 186 (2d Cir. 2011) (Katzmann, J., concurring) (assuming that the rule of lenity
applies to the advisory Guidelines). In my view, the rule of lenity continues to
play a vital role in the interpretation of the Guidelines, notwithstanding their
advisory nature, because sentencing judges remain procedurally bound to
calculate the Guidelines range. But see United States v. Wright, 607 F.3d 708,
716‐20 (11th Cir. 2010) (Pryor, J., concurring) (explaining why the rule of lenity
should not apply to the interpretation of advisory Guidelines).
8
1 construction, [the court is] left with a grievous ambiguity or uncertainty in the
2 statute.”) (quotation marks omitted). I would abandon the effort to divine the
3 absence of a clear bar to double counting under the Guidelines. Where, as here,
4 the text of the relevant Guidelines provisions and application note is unclear
5 about whether double counting is permitted, the rule of lenity should apply to
6 foreclose it. I would vacate the sentence and remand on that basis.
7 For this reason I concur in the judgment with respect to the majority’s
8 resolution of the double counting challenge, and I concur fully in its resolution of
9 all the other issues on appeal.
9