United States Court of Appeals,
Eleventh Circuit.
No. 94-4549.
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Donald JUSTICE, Defendant-Appellant.
June 30, 1995.
Appeal from the United States District Court for the Southern
District of Florida. (No. 93-488-CR), James Lawrence King, Judge.
Before TJOFLAT, Chief Judge, HATCHETT and CARNES, Circuit Judges.
PER CURIAM:
Having been convicted on a guilty plea to one count of
possession of unregistered firearms, Donald Justice appeals his
sentence, which resulted from an application of §§ 2K2.1(a)(5) and
2K2.1(b)(3) of the United States Sentencing Guidelines. Pursuant
to § 2K2.1(a)(5), Justice initially was assigned a base offense
level of 18, because his "offense involved a firearm listed in 26
U.S.C. § 5845(a);" more specifically, his offense involved
grenades which are destructive devices, one of the several types of
firearms listed in § 5845(a). See U.S.S.G. § 2K2.1(a)(5) &
comment. (n. 5); 26 U.S.C. § 5845. Because grenades also fall
into the special firearms category of "destructive devices,"
pursuant to § 2K2.1(b)(3) Justice's base offense level was enhanced
another two points, resulting in a base offense level of 20.
Justice contends that the combined application of §§ 2K2.1(a)(5)
and 2K2.1(b)(3) constitutes impermissible double counting of his
offense conduct. We disagree.
The commentary accompanying § 2K2.1 directs a sentencing judge
to apply both subsections (a)(5) and (b)(3) when calculating the
sentence of a defendant whose offense involved a destructive
device. Application Note 11 explains:
"A defendant whose offense involves a destructive device
receives both the base offense level from the subsection
applicable to a firearm listed in 26 U.S.C. § 5845(a) (e.g.,
subsection ... (a)(3) ...), and a two-level enhancement under
subsection (b)(3). Such devices pose a considerably greater
risk to the public welfare than other National Firearms Act
weapons."
U.S.S.G. § 2K2.1, comment. (n. 11). The "commentary in the
Guidelines Manual that interprets or explains a guideline is
authoritative unless it violates the Constitution or a federal
statute, or is inconsistent with, or a plainly erroneous reading
of, that guideline." Stinson v. United States, --- U.S. ----, ----
, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993) (emphasis added).
Justice does not argue that Note 11 violates the Constitution or a
federal statute. Nor does he contest the fact that Note 11 clearly
comports with the plain language of § 2K2.1. Instead, he contends
that Note 11 conflicts with other guidelines and their commentary
which restrict double counting. Thus, Justice fails to address
what is the critical question under Stinson: whether a guideline's
commentary contradicts that guideline. Having conducted our own
review of the relevant guideline and commentary, we conclude that
Note 11 is not " "plainly erroneous or inconsistent with' " §
2K2.1. Accordingly, the application note controls our
determination of this case, see Stinson, --- U.S. at ----, 113
S.Ct. at 1920, and we reject Justice's contention.
AFFIRMED.