Case: 20-51057 Document: 00515951579 Page: 1 Date Filed: 07/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 26, 2021
No. 20-51057
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Brian Moon,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:20-CR-149-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Brian Moon pleaded guilty to maintaining a drug-involved premises in
violation of 21 U.S.C. § 856(a)(1). The district court sentenced Moon to a
within-guidelines term of 30 months of imprisonment and three years of
supervised release. On appeal, Moon challenges the court’s application of
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-51057 Document: 00515951579 Page: 2 Date Filed: 07/26/2021
No. 20-51057
the two-level sentencing enhancement under Sentencing Guideline
§ 2D1.1(b)(12) for maintaining a drug premises. He contends that imposing
the enhancement constituted impermissible double-counting, asserting that
the act of maintaining a drug premises is already factored into the base offense
level for violating § 856(a)(1).
Where, as here, a potential guidelines calculation error has been
preserved, this court reviews the district court’s interpretation of the
Guidelines de novo and its factual findings for clear error. See United States
v. Fernandez, 770 F.3d 340, 342-44 (5th Cir. 2014). A district court’s
decision to impose the § 2D1.1(b)(12) enhancement for maintaining a drug
premises is a factual finding reviewed for clear error. United States
v. Guzman-Reyes, 853 F.3d 260, 263 (5th Cir. 2017). However, whether the
imposition of the maintaining-a-drug-premises enhancement constitutes
impermissible double counting is an application of the Guidelines reviewed
de novo. See United States v. Jones, 145 F.3d 736, 737 (5th Cir. 1998).
Double counting is prohibited only if the particular Guidelines at issue
specifically forbid it. United States v. Jimenez-Elvirez, 862 F.3d 527, 541 (5th
Cir. 2017) (internal quotation marks and citation omitted); accord United
States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999). Neither Guideline § 2D1.1
nor § 2D1.8 expressly prohibits double counting.
AFFIRMED.
2