[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 31, 2006
No. 05-12306 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 94-00032-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH ANTHONY HAYES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 31, 2006)
Before PRYOR and FAY, Circuit Judges, and STEELE,* District Judge.
PER CURIAM:
*
The Honorable William H. Steele, United States District Court for the Southern District
of Alabama, sitting by designation.
Joseph Anthony Hayes appeals the order of the district court denying his
motion for reduction of sentence. 18 U.S.C. § 3582(c)(2). Hayes was convicted of
possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) (Count I),
possession of firearms during and in relation to that crime, 18 U.S.C. § 924(c)
(Count II), and possession of an unregistered firearm, 26 U.S.C. § 5861(d) (Count
III). The district court found that Amendment 599 of the United States Sentencing
Guidelines, which forecloses a firearms enhancement for criminals convicted of
possessing a firearm during and in relation to certain crimes, 18 U.S.C. § 924(c),
did not apply to Hayes. On appeal, the government concedes that the district court
erred. We reverse and remand.
I. BACKGROUND
In January 1994, Hayes participated in a scheme to rob a “stash house” of
20-30 kilograms of cocaine. An undercover agent with the Bureau of Alcohol,
Tobacco and Firearms posed as a disgruntled drug courier. Immediately before the
robbery, Hayes showed the agent a 9-mm. semi-automatic pistol, and represented
that he and his accomplices had a 12-gauge shotgun in one of the vehicles they
intended to use in the robbery. Hayes requested that the agent follow him as he left
to retrieve the shotgun, but before they reached it, the men were arrested. A 9-mm.
Ruger pistol was found in the car in which Hayes had been traveling, and an
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unregistered sawed-off shotgun was found in Hayes’s own car parked a few blocks
away.
Hayes was indicted and proceeded to trial, where a jury convicted him on all
counts. At his sentencing, the district court imposed concurrent sentences of 300
months of imprisonment on Count I and 120 months of imprisonment on Count III,
and a consecutive sentence of 60 months of imprisonment on Count II. The 9-mm.
pistols formed the basis of the charge in Count II. The district court used the
shotgun, which formed the basis of the charge in Count III, to enhance Hayes’s
offense level for Count I. See U.S.S.G. § 2D1.1(b)(1) (allowing a two-level
enhancement for possession of a dangerous weapon while trafficking).
On November 1, 2000, Amendment 599 of the Sentencing Guidelines
became effective and was made retroactive. Amendment 599 modified the
commentary to Sentencing Guideline 2K2.4, which applies to offenses involving
the use of a firearm during or in relation to certain crimes. The amendment
prevents an offense that underlies a section 924(c) offense from being enhanced by
a firearms specification:
If a sentence under this guideline is 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. A sentence under this guideline
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accounts for any explosive or weapon enhancement for
the underlying offense of conviction, including any such
enhancement that would apply based on conduct for
which the defendant is accountable under § 1B1.3
(Relevant Conduct). Do not apply any weapon
enhancement in the guideline for the underlying offense,
for example, if (a) a co-defendant, as part of the jointly
undertaken criminal activity, possessed a firearm
different from the one for which the defendant was
convicted under 18 U.S.C. § 924(c); or (B) in an ongoing
drug trafficking offense, the defendant possessed a
firearm other than the one for which the defendant was
convicted under 18 U.S.C. § 924(c).
Amendment 599.
Based on this amendment, Hayes filed a motion for reduction of sentence,
and argued that the firearms enhancement of the sentence for Count I was
precluded by his conviction on Count II for possessing a firearm during and in
relation to Count I. The district court summarily denied this motion. Hayes
appealed, and this Court remanded to the district court for an explanation of its
ruling. United States v. Hayes, No. 04-12611 (11th Cir. Dec. 20, 2004).
On remand, the district court stated that Amendment 599 precludes adding a
section 2D1.1(b) enhancement to the offense underlying a section 924(c) charge “if
(1) a co-defendant as part of the jointly undertaken criminal activity, possessed a
firearm different from the one for which the defendant was convicted under 18
U.S.C. § 924(c), or (2) in an ongoing drug trafficking offense, the defendant
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possessed a firearm other than the one for which the defendant was convicted
under 18 U.S.C. § 924(c).” Since Hayes “possessed another gun (the sawed off
shotgun charged in Count 3) that was not in the possession of either co-defendant,”
and since “the defendant’s drug trafficking conspiracy offense of conviction was
not ‘ongoing,’” the amendment did not apply.
II. STANDARD OF REVIEW
“We review a district court’s decision whether to reduce a sentence pursuant
to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the guidelines, for
abuse of discretion.” U.S. v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003)
(internal quote omitted). “A district court by definition abuses its discretion when
it makes an error of law.” Id. (internal quote omitted).
III. DISCUSSION
The government concedes on appeal that Amendment 599 applies to Hayes.
We agree. The amendment does not limit its application to the two situations
described by the district court, which are given only as examples of when the
amendment would apply. See Amendment 599 (“Do not apply any weapon
enhancement in the guideline for the underlying offense, for example, if (a) a co-
defendant...possessed a firearm different from the one for which the defendant was
convicted...; or (B) in an ongoing drug trafficking offense, the defendant possessed
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a firearm other than the one for which the defendant was convicted....” (Emphasis
added.)). The unambiguous language of the amendment provides a general rule to
be applied: “A sentence under this guideline accounts for any explosive or
weapons enhancement for the underlying offense of conviction[.]” Id. (emphasis
added).
The district court abused its discretion when it erroneously concluded that
Amendment 599 did not apply to Hayes. It is undisputed that Hayes’s sentence for
Count II fell under Sentencing Guideline 2K2.4, and the district court enhanced
Hayes’s sentence for the underlying crime in Count I. Amendment 599 applied in
this circumstance. On remand, the district court must recalculate Hayes’s sentence
under the amended guidelines and then determine, in the light of the sentencing
factors, 18 U.S.C. § 3553(a), whether to reduce Hayes’s sentence.
IV. CONCLUSION
The denial of Hayes’s motion for reduction of sentence is reversed, and this
action is remanded for future proceedings consistent with this opinion.
REVERSED and REMANDED.
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