[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 23, 2006
No. 06-11696 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20679-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ZAVI L. KING,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 23, 2006)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Zavi L. King appeals his 98-month total sentence imposed for:
(1) possession with intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (Count One); (2) distribution of cocaine base within 1,000 feet of a
playground, in violation of 21 U.S.C. §§ 841(a)(1), 860(a) (Count Two);
(3) possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (Count Three); and (4) possession of a firearm in relation to and in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)
(Count Four).
On appeal, King argues that the district court erred when it sentenced him
based on two related gun counts while effectively discarding the two related drug
counts, based on its interpretation of U.S.S.G. §§ 3D1.1 through 3D1.3 that such a
grouping was required. King explains that the issue of “closely related counts” is
relevant in his case because the drug amount to which he stipulated was .3 grams
of cocaine base so that his base offense level pursuant to the Drug Quantity Table
would be 14 with a two-level adjustment for possession with intent distribute
within 1,000 feet of a playground. King acknowledges that Count Four may not be
grouped with any other count, but asserts that the court erred by abandoning the
drug counts (Counts One and Two) and sentencing him pursuant to both Count
Three and Count Four because these two counts resulted in the highest sentence.
King argues that nothing in the guideline range mandated that Count Three could
2
not be grouped with Count Four as a closely related count.
King also argues that, pursuant to United States v. Booker, 543 U.S. 220,
125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the court erred in believing that it was
mandated by the guidelines to group the counts of conviction as suggested by the
advisory presentence investigation report (“PSI”). We reject this latter argument
because we have held “that Booker does not render application of individual
guideline provisions advisory because the district court remains obligated correctly
to calculate the Guidelines range pursuant to 18 U.S.C. § 3553(f)(1).” United
States v. Brehm, 442 F.3d 1291, 1300 (11th Cir. 2006).
Thus, the only issue before us on appeal is whether King’s guidelines
sentence was properly calculated pursuant to U.S.S.G. § 3D1 and we review de
novo a district court’s decisions regarding grouping. United States v. Williams,
340 F.3d 1231, 1244 (11th Cir. 2003).
Guideline § 3D1.1 directs a sentencing court to group closely related
convictions according to the rules in § 3D1.2, calculating an offense level for the
group by applying the rules in § 3D1.3. United States. v. Marseille, 377 F.3d
1249, 1254 (11th Cir. 2004). Guideline § 3D1.2 provides that, in general, counts
involving substantially the same harm shall be grouped together into a single
group. U.S.S.G. § 3D1.2. Counts embody substantially the same harm within the
3
meaning of the rule when, inter alia, “one of the counts embodies conduct that is
treated as a specific offense characteristic in, or other adjustments to, the guideline
applicable to another of the counts.” U.S.S.G. § 3D1.2(c). “The Guidelines then
direct the court to determine the offense level for the grouped convictions by
determining which conviction carries the greatest offense level.” Marseille, 377
F.3d at 1254; see also U.S.S.G. § 3D1.3(a). Moreover, § 3D1.1(b)(1) specifically
excludes from the application of § 3D1.2 “[a]ny count for which the statute (A)
specifies a term of imprisonment to be imposed; and (B) requires that such term of
imprisonment be imposed to run consecutively to any other term of
imprisonment.” U.S.S.G. § 3D1.1(b)(1).
The guidelines applicable to each of the four counts are: (1) § 2D1.1(a)(c),
(c)(13) for Count One, possession with intent to distribute cocaine base in violation
of 21 U.S.C. 841(a)(1), resulting in a base offense level of 14; (2) § 2D1.2(a)(1) for
Count Two, distribution of cocaine base within 1,000 feet of a playground in
violation of 21 U.S.C. §§ 841(a)(1) and 860(a), resulting in enhancing the § 2D1.1
base offense level in Count One by 2 levels; (3) § 2K2.1(a)(4)(A) for Count Three,
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1),
resulting in a base offense level of 20; and (4) § 2K2.4(b) for Count Four,
possession of a firearm in relation to and in furtherance of a drug trafficking crime
4
in violation of 18 U.S.C. § 924(c)(1)(A), resulting in a consecutive 60-month
sentence. See U.S.S.G. §§ 2D1.1(a)(c), (c)(13), 2D1.2(a)(1), 2K2.1(a)(4)(A),
2K2.4(b); 18 U.S.C. § 924(c)(1)(A).
Comment 4 of § 2K2.4 addresses how § 2K2.4 (Count Four) relates to §
2K2.1 (Count Three) by explaining that:
If the explosive or weapon that was possessed, brandished, used, or
discharged in the course of the underlying offense also results in a
conviction that would subject the defendant to an enhancement under
§ 2K1.3(b)(3) (pertaining to possession of explosive material in
connection with another felony offense) or § 2K2.1(b)(5) (pertaining
to possession of any firearm or ammunition in connection with
another felony offense), do not apply that enhancement. A sentence
under this guideline accounts for the conduct covered by these
enhancements because of the relatedness of that conduct to the
conduct that forms the basis for the conviction under 18 U.S.C.
844(h), 924(c) or 929(a). For example, if in addition to a conviction
for an underlying offense of armed bank robbery, the defendant was
convicted of being a felon in possession under 18 U.S.C. 922(g), the
enhancement under § 2K2.1(b)(5) would not apply.
U.S.S.G. § 2K2.4 comment. (n.4).
In the instant case, the district court did not err by grouping Counts One and
Two, the drug counts, with Count Three, felon in possession of a firearm. King
acknowledges that Count Four must run consecutively to all other counts and
§ 3D1.1(b)(1) specifically excludes Count Four from grouping based on Count
Four “specif[ing] a term of imprisonment to be imposed and . . . requir[ing] that
such term of imprisonment be imposed to run consecutively to any other term of
5
imprisonment.” Thus, the guidelines require that Count Four stand alone.
Moreover, comment 4 of § 2K2.4 specifically denotes which subsections of
§ 2K2.1 may not be applied when determining a guidelines range that includes
§ 2K2.4 and subsection (a)(4)(A) of § 2K2.1 is not one of the subsections
specifically excluded by comment 4. Lastly, Count Three was properly added to
Counts One and Two because Count Three embodies conduct that is treated as a
specific offense characteristic or other adjustment to that group.
AFFIRMED.
6