[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APRIL 28, 2003
No. 02-16013 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00012-CR-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID ADAMS,
a.k.a. Michael Lamone Adams, etc.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 28, 2003)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
David Adams appeals the ninety-two-month sentence he received after he
pled guilty to possession of a stolen firearm in violation of 18 U.S.C. § 922(j). He
asserts that the district court’s application of U.S.S.G. § 2K2.1(b)(4), which
provides for a two-level enhancement for offenses involving stolen firearms,
constitutes impermissible double counting. His challenge to the application of
subsection (b)(4) presents a matter of first impression in this Circuit, but seven of
our sister circuits have addressed the issue. After reviewing the sentencing
guidelines, we join the majority of our sister circuits in holding that the application
of the two-level enhancement under subsection (b)(4) is appropriate unless the
defendant’s base offense level is determined under subsection (a)(7).
BACKGROUND
Adams pled guilty to possession of a stolen firearm after police officers
discovered a loaded semiautomatic pistol, which had been reported stolen, during
a consensual search of his vehicle. At his sentencing hearing, the district court
determined that his base offense level was twenty-four, because he previously
“sustain[ed] at least two felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). Additionally, the district
court applied a two-level enhancement pursuant to subsection (b)(4), because the
firearm was stolen. Thereupon, Adams challenged the application of subsection
(b)(4), arguing that because he was charged with possession of a stolen firearm,
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enhancing the offense level based solely upon the stolen nature of the firearm
constituted impermissible double counting. The district court rejected his
challenge and sentenced him to a prison term of ninety-two months. This appeal
followed.
DISCUSSION
We review the district court’s application of the sentencing guidelines de
novo. See United States v. Jackson, 276 F.3d 1231, 1233 (11th Cir. 2001).
Although we never addressed whether the application of the two-level
enhancement under subsection (b)(4) constitutes double counting when the
offense of conviction involves a stolen firearm, several of our sister circuits have
addressed that issue and found that the enhancement is appropriate when a
defendant’s base offense level is not determined under subsection (a)(7). See
United States v. Goff, 314 F.3d 1248, 1249–50 (10th Cir. 2003); United States v.
Raleigh, 278 F.3d 563, 566–67 (6th Cir.), cert. denied, __ U.S. __, 122 S. Ct. 2343
(2002); United States v. Shepardson, 196 F.3d 306, 311–14 (2d Cir. 1999); United
States v. Hawkins, 181 F.3d 911, 911–13 (8th Cir. 1999); United States v. Brown,
169 F.3d 89, 93 (1st Cir. 1999); United States v. Luna, 165 F.3d 316, 322–23 (5th
Cir. 1999); United States v. Turnipseed, 159 F.3d 383, 385–86 (9th Cir. 1998).
We agree with the reasoning of our sister circuits and find that the district court’s
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application of subsection (b)(4) to enhance Adams’s sentence did not constitute
impermissible double counting. Our conclusion is based upon the plain language
of the sentencing guidelines.
When, as here, a “defendant committed any part of the . . . offense [of
conviction] subsequent to sustaining at least two felony convictions of either a
crime of violence or a controlled substance offense,” the sentencing guidelines
instruct the district court to use a base offense level of twenty-four under
subsection (a)(2). U.S.S.G. § 2K2.1(a)(2). “If any firearm was stolen,” the
sentencing guidelines also instruct the district court to apply a two-level
enhancement. Id. § 2K2.1(b)(4). The two-level enhancement, however, cannot be
applied
[i]f the only offense to which §2K2.1 applies is 18 U.S.C. § 922(i),
(j), or (u), or 18 U.S.C. § 924(l) or (m) (offenses involving a stolen
firearm or stolen ammunition) and the base offense level is
determined under subsection (a)(7) . . . . This is because the base
offense level takes into account that the firearm or ammunition was
stolen.
Id. § 2K2.1, cmt. n.12.
Although the sentencing guidelines create an exception for defendants
whose base offense level is determined under subsection (a)(7), no such exception
is created for defendants whose base offense level is determined under subsection
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(a)(2). Indeed, subsection (a)(2), unlike subsection (a)(7), is not exempted,
because it does not take into account whether the offense of conviction involved a
stolen firearm. Subsection (a)(2) is meant to account only for a defendant’s past
criminal history; whether the firearm involved was stolen is irrelevant to the
district court’s determination that a defendant’s prior felony convictions warrant a
base offense level of twenty-four. As such, the sentencing guidelines “clearly
permit[] the [district] court to enhance an offense by two levels under subsection
(b)(4) if the base offense is not calculated under . . . § 2K2.1(a)(7).” Turnipseed,
159 F.3d at 386 (internal quotation marks omitted).
Thus, when the district court determined Adams’s base offense level under
subsection (a)(2), it accounted for his past felony convictions, but not the fact that
the firearm found in his vehicle was stolen. Consequently, the application of
subsection (b)(4) was necessary to account for the fact that the firearm was stolen,
and, thus, the district court correctly applied the two-level enhancement.
CONCLUSION
Accordingly, we AFFIRM.
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