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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10705
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-00393-AT-JFK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEFFREY SCOTT TRUITT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 6, 2017)
Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
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Jeffrey Scott Truitt appeals his 106-month sentence, imposed after he pled
guilty to a number of drug and firearm offenses. On appeal, Truitt argues that the
application of both a four level enhancement to his Sentencing Guidelines offense
level for firearm trafficking and a four level enhancement for possession of
firearms in connection with another felony constitutes impermissible double
counting. After careful review, and for the reasons set forth below, we affirm the
district court’s decision.
I.
Truitt pled guilty to six federal offenses, including possession of an
unregistered destructive device (Count 1), an unregistered firearm (Count 2), a
stolen firearm (Count 3), methamphetamine (Count 4), and a firearm by an
unlawful user of a controlled substance (Count 5). He also pled guilty to theft of
firearms from a licensee (Count 6).
Before his sentencing hearing, the probation office prepared a presentence
investigation report (“PSI”), which reported the details of the investigation of
Truitt’s criminal activity. In conjunction with the arrest of a man named Mario
Rodriguez-Aviles, agents from the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (“ATF”) recovered 11 firearms. Agents traced some of these firearms
to Mainstreet Guns & Range, where Truitt worked, and determined the firearms to
be either missing without record or reported as sold to Truitt. As a result of this
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information, agents executed a search warrant on Truitt’s residence, where they
recovered, among other things, methamphetamine, an unregistered destructive
device, and a variety of firearms and ammunition. Police arrested Truitt as a result
of the search.
After Truitt’s arrest, ATF agents interviewed Jason Evans, an inmate
incarcerated in Georgia who reported that he had sold methamphetamine to Truitt
on multiple occasions and that several of these transactions involved trading
firearms in exchange for methamphetamine. Evans also told agents that he
obtained approximately 15 to 20 firearms from Truitt and gave the firearms to
Rodriguez-Aviles in exchange for credit against his drug debt.
The probation officer calculated a base offense level of 20, pursuant to
U.S.S.G. § 2K2.1, for the firearms offenses, which were grouped together for
guidelines calculation purposes. In this calculation, as relevant here, Truitt
received a four level enhancement pursuant to U.S.S.G § 2K2.1(b)(5) because he
engaged in trafficking of firearms and a four level enhancement pursuant to
U.S.S.G. § 2K2.1(b)(6)(B) for possession of a firearm or ammunition in
connection with another felony.
Truitt objected to the § 2K2.1(b)(6)(B) enhancement, arguing that its
application constituted impermissible double counting because the basis for this
enhancement already was covered by the § 2K2.1(b)(5) trafficking enhancement.
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The district court overruled Truitt’s objection, finding that the government carried
its burden of showing that there was no impermissible double counting because the
enhancements under §§ 2K2.1(b)(5) and (6)(B) represented two separate harms,
firearm trafficking and facilitation of drug offenses.
With these two enhancements, Truitt’s total offense level was 34. That,
combined with a criminal history category of I, yielded a guidelines range of 151
to 188 months’ imprisonment. The district court sentenced Truitt to 106 months of
imprisonment followed by three years of supervised release. This is Truitt’s
appeal.
II.
We review de novo a claim that the district court engaged in impermissible
double counting. United States v. Matos-Rodriguez, 188 F.3d 1300, 1310 (11th
Cir. 1999). For the reasons that follow, we conclude that the district court’s
application of both the U.S.S.G. § 2K2.1(b)(5) and § 2K2.1(b)(6)(B) enhancements
to Truitt’s guidelines range did not constitute impermissible double counting.
“Impermissible double counting occurs only when one part of the Guidelines
is applied to increase a defendant’s punishment on account of a kind of harm that
has already been fully accounted for by application of another part of the
Guidelines.” United States v. Dudley, 463 F.3d 1221, 1226-27 (11th Cir. 2006)
(internal quotation marks omitted). “We presume that the Sentencing
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Commission,” which promulgates the guidelines, “intended separate guidelines
sections to apply cumulatively unless specifically directed otherwise.” Id. at 1227
(internal quotation marks omitted). “Double counting a factor during sentencing is
permitted if the Sentencing Commission . . . intended that result and each guideline
section in question concerns conceptually separate notions relating to sentencing.”
Id. (internal quotation marks omitted). Punishment of two different kinds of harms
based on the same conduct is permissible under the guidelines when “neither
enhancement fully accounts for both harms.” United States v. Asante, 782 F.3d
639, 648 (11th Cir. 2015) (internal quotation marks and alteration omitted).
Section 2K2.1(b)(5) dictates a four level enhancement if the defendant
engaged in the trafficking of firearms. U.S.S.G. § 2K2.1(b)(5). Section 2K2.1’s
Application Notes clarify that, in general, subsection (b)(5) applies if the defendant
transferred two or more firearms to another individual and “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.” Id.
§ 2K2.1 cmt. n.13(A). The Application Notes further state:
In a case in which three or more firearms were both possessed and
trafficked, apply both subsections (b)(1) and (b)(5). If 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) an enhancement under subsection (b)(6)(B) also
would apply.
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Id. cmt. n.13(D).
Section 2K2.1(b)(6)(B) allows a four level enhancement if the defendant
“used or possessed any firearm or ammunition in connection with another felony
offense,” or if the defendant “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.” U.S.S.G. § 2K2.1(b)(6)(B). The
Application Notes to this subsection state that, in general, § 2K2.1(b)(6)(B) applies
“if the firearm or ammunition facilitated, or had the potential of facilitating,
another felony offense.” Id. § 2K2.1 cmt. n.14(A); see United States v. Rhind, 289
F.3d 690, 695 (11th Cir. 2002) (noting that we give the phrase “in connection
with” another felony an “expansive interpretation”). Further, the Application
Notes define “another felony offense” in this context as “any federal, state, or local
offense, other than the explosive or firearms possession or trafficking offense,
punishable by imprisonment for a term exceeding one year regardless of whether”
there was a criminal charge or conviction. U.S.S.G. § 2K2.1 cmt. n.14(C). As
relevant to this appeal, Truitt pled guilty to possession of methamphetamine, which
constitutes a felony offense under state law. O.C.G.A. § 16-13-30 (providing that
offense of possession of a controlled substance is punishable by imprisonment for
more than one year).
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On appeal, Truitt does not contest the application of the trafficking
enhancement. Thus, the only question we must answer is whether the application
of both the trafficking enhancement and the “in connection with another felony”
enhancement constituted double counting. There is no indication from the
Sentencing Commission that it intended to forbid the application of both
enhancements, see Dudley, 463 F.3d at 1227; to the contrary, the Application
Notes expressly contemplate that both enhancements will apply where the
defendant used or transferred firearms in connection with a felony offense other
than firearms possession or trafficking. See U.S.S.G. § 2K2.1 cmt. n.13(D).
Truitt argues that there is double counting here because both enhancements
punished his trafficking of firearms, and the guidelines expressly exclude from the
definition of “another felony offense” any “firearms possession or trafficking
offense.” Id. We disagree. While the application of the § 2K2.1(b)(5)
enhancement punished Truitt’s transfer of firearms, the application of the
§ 2K2.1(b)(6)(B) enhancement punished his possession of methamphetamine,
which constitutes “another felony offense” under the guidelines. U.S.S.G. § 2K2.1
cmt. n.14(C); see O.C.G.A. § 16-13-30. Indeed, we previously held that the sale of
a firearm in exchange for drugs facilitates a drug offense and is therefore seen as
“in connection with” that offense under U.S.S.G. § 2K2.1. United States v.
Carillo-Ayala, 713 F.3d 82, 96 (11th Cir. 2013). As in Carillo-Ayala, Truitt’s
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possession of firearms was “in connection with another felony offense” within the
meaning of the guidelines. And the harms associated with possession of
methamphetamine are separate from those associated with trafficking of firearms
such that “neither enhancement fully accounts for both harms.” Asante, 782 F.3d
at 647-48 (internal quotation marks and alteration omitted). Accordingly, there
was no impermissible double counting, and we affirm the sentence the district
court imposed.
AFFIRMED.
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