United States v. Don Newcombe Brown

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR TH E ELEV ENTH C IRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 5, 2003
No. 01-16881 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 95-00330-CR -1-1

UNI TED STA TES OF A MER ICA,

Plaintiff- Appe llee,

versus

DON NEW COM BE B ROW N,

Defen dant-A ppellant.

________________________

Appeal from the United States District Court
for the N orthern District o f Geor gia
_________________________

(June 5, 2003)

Before AN DERS ON, BIR CH and B ARKE TT, Circuit Judges.

BIRCH, Circuit Judge:
 In this appeal, we examine the sentencing of a defendant who pled guilty on

two counts: using or carrying a firearm “during and in relation to any crime of

violence or drug trafficking crime,” in violation of 18 U.S.C. § 924(c), and being a

felon in p ossessio n of a fire arm, in v iolation o f 18 U .S.C. § 9 22(g). W e find, in

that circumstance, that the retroactively applicable Amendment 599 to the

Sentencing Guidelines prohibits enhancing the sentence for the felon-in-possession

count with the U.S.S.G. § 2K2.1(b)(5) specific offense characteristic for using a

firearm in connection to another felony. In the view of the Sentencing

Commission, to apply that enhancement on the § 922(g) count while also imposing

a sentence on the § 924(c) count would punish substantially the same conduct

twice, an imp ermissible result. F or that reason, w e REV ERSE the district court’s

denial of Don Newcombe Brow n’s motion for modification of his original sentence

pursuant to 18 U.S.C. § 3582(c)(2).

I. BACKGROUND

In a five- count in dictmen t, Brow n was c harged in Cou nt One with

possession of thirty-five (35) handguns after having previously been convicted of a

felony, in violation of 18 U.S.C. §922(g); in Count Two with possession and

concealm ent of tw enty-six s tolen firea rms, in v iolation o f 18 U .S.C. § 9 22(j); in

Coun t Three w ith posse ssion of a firearm with an obliterated serial num ber, in

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violation of 18 U .S.C. § 9 22(k); in Coun t Four w ith attemp ting to po ssess w ith

intent to d istribute co caine, in v iolation o f 21 U.S.C. § 8 46; and in Cou nt Five w ith

using and carrying thirty-five firearms during and in relation to the drug trafficking

offense alleged in Coun t Four, in violation of 18 U .S.C. § 9 24(c).

Pursuant to a negotiated plea agreement, Brown pled guilty to Counts One

and Five of the indictment. The d istrict court calculated the Adjusted Offense

Level for Count One (possession of a firearm by convicted felon) to include a four-

level enhancement, pursuant to U.S.S.G. § 2K2.1(b)(5), for possession of a firearm

in conn ection w ith anoth er felony (based o n Count Fou r, posses sion w ith intent to

distribute cocaine). Brown did not object to the 2K2.1(b)(5) adjustment at

sentencing. Brown was sentenced to one hundred twenty (120) months

incarcera tion on C ount O ne, follow ed by a m andator y consec utive term of sixty

(60) m onths o n Cou nt Five, to be follow ed by thr ee years su pervised release.

Brow n filed a m otion to m odify his sentence , pursua nt to 18 U .S.C. §

3582( c)(2), ba sed on A mendm ent 599 to the Se ntencing Guide lines. On 20

November 2001, the district court heard and considered the motion. At the

hearing, the district court denied Brown’s motion to modify his sentence, reasoning

that Amendment 599 did not apply. Brown thereafter filed a timely notice of

appeal, w hich is no w pro perly bef ore us.

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 II. DISCUSSION

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 sentencing

guidelin es, for ab use of d iscretion. United States v. Vautier, 144 F .3d 756 , 759 n.3

(1998). “A district court by definition abuses its discretion when it makes an error

of law.” Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035, 2047 (1996).

The issu e is whe ther Am endme nt 599 a nd the cu rrent ver sion of U .S.S.G . §

2K2.4 preclude the application of a § 2K2.1(b)(5) four-level enhancement for

possession of a firearm in connection w ith another felony offense to Brow n’s §

922(g) conviction for being a felon in possession of a firearm, wh en he was also

sentence d for his § 924( c) conv iction for using o r carrying firearms during and in

relation to a drug trafficking offense. Brown argues that the § 2K2.1(b)(5)

enhancement to his § 922 (g) conviction is “double counting” becau se he also

received a consecutive sentence for his § 924(c) conviction, which in effect

punished him for the same conduct -- possession of a firearm during and in relation

to a felon y drug tr afficking crime.

When a defendant is convicted under § 922(g) of being a felon in possession

of a firear m, the ap plicable se ntencing guidelin e is § 2K 2.1 (U nlawfu l Receipt,

Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions

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Involving Firearms or A mmunition). Section 2K 2.1(a) contains several base

offense levels and requires that the greatest applicable base offense level be

applied. A § 922(g) conviction warrants a base offense level of 20 under §

2K2.1(a)(4)(A), which applies if “the defendant committed any part of the instant

offense subsequent to sustaining one felony conviction of either a crime of

violence or a controlled substance offense.” In addition, § 2K2.1(b) provides

specific offense characteristics, which enhance the offense level for the covered

offenses. Section 2K2.1(b)(5) increases the offense level by 4 “[i]f the defendant

used or possessed any firearm or ammunition in connection with another felony

offense; or possessed or transferred any firearm with knowledge, intent, or reason

to believe that it would be used or possessed in connection with another felony

offense.”

When a defend ant is con victed un der § 92 4(c), for possess ing a firea rm in

relation to a drug crime, the relevant sentencing guideline is § 2K2.4 (Use of

Firearm , Armo r-Piercin g Am munitio n, or Ex plosive D uring o r in Relatio n to

Certain Crimes), which provides that the statutory sixty-month consecutive

sentence must be imposed. U.S.S.G. § 2K2.4(a). Application Note 2 of the

Commentary to § 2 K2.4 provides certain instances w hen specific offense

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characteristics regarding explosives or firearms are not to be app lied to the base

offense level for other convictions. 1

Prior to Amen dment 5 99, the re levant po rtion of U .S.S.G . § 2K2 .4

Application Note 2 provided that “[w]here a sentence under this section is imposed

in conjunction with a sentence for an u nderlying offense, any specific offense

character istic for the possess ion, use o r dischar ge of an explosiv e or firear m . . . is

not to be applied in respect to the guid eline for th e under lying off ense.” U .S.S.G . §

2K2.4 comment. (n.2) (1998). In United States v. Flennory, we interpreted the

term “underlying offense” to mean “crime of violence” or “drug trafficking

offense,” the two explicit bases for a § 924(c) conviction. 145 F.3d 1264, 1268-69

(11th Cir. 1998). In Flennory, the defendant was convicted under § 922(g) and §

924(c) and received an enhancement derived from cross-referencing under §

2K2.1(c)(1), which was applied because it would result in a greater sentence than

the § 2K 2.1(b)( 5) enha ncemen t.2 We followed our precedent in United States v.

1
In the 2002 Sentencing Guidelines, Application Note 2 was changed to what is now
Application Note 4. For purposes of simplicity, we will continue to refer to it as Application
Note 2, as it was argued by the parties and considered by the district court.
2
Section 2K2.1(c)(1) cross-references to § 2X1.1 “[i]f the defendant used or possessed
any firearm . . . in connection with the commission . . . of another offense . . . [and] . . . the
resulting offense level [under § 2X1.1 (Attempt, Solicitation, Conspiracy)] is greater than that
determined [under § 2K2.1].” U.S.S.G. § 2K2.1(c)(1).

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Paredes, 139 F.3d 840 (11th Cir. 1998), 3 and refused to expand the definition of

underlying offense beyond “crime of violence” or “drug trafficking offense” for

purpo ses of sen tencing a § 924( c) violatio n and ap plying § 2K2.4 Applic ation N ote

2. Id. at 1268-69 (citing United States v. Sanders, 982 F.2d 4 (1st Cir. 1992), and

declining to follow United States v. Vincent, 20 F.3 d 229 ( 6th Cir. 1 994)).

Accordingly, we held that § 2K2.4 Application Note 2 did not apply because a §

922(g ) convic tion wa s not an “u nderlyin g offen se” with in the def inition of the note

and, ther efore, the § 2K2 .1(c)(1) cross-re ferencin g enhan cement w as not do uble

countin g the con duct pu nished b y the § 92 4(c) con secutive s entence. Flennory,

145 F.3d at 1269.

Effective November 2000, Amendment 599 4 to the Sentencing Guidelines

change d the lang uage of Applic ation N ote 2, w hich no w pro vides, in p ertinent p art:

If a sentence under this guideline is imposed in conjunction with a
sentence for an underlying offen se, do not apply any specific offense
characteristic for possession, brandishing, use, or discharge of an

3
The facts in Paredes are nearly identical to the facts in the case before us. We refused
to deem a § 922(g) conviction an underlying offense to a § 924(c) conviction even though the §
922(g) sentence was arrived at by grouping the § 922(g) conviction with the other robbery
convictions. Paredes, 139 F.3d at 846 (“‘[T]he grouping process does not call for
redetermination of the offense level applicable to each crime. Thus, the ‘underlying offense’
must be the crime during which, by using the gun, the defendant violated § 924(c).’”) (quoting
United States v. Mrazek, 998 F.2d 453, 455 (7th Cir. 1993)). Flennory fully incorporated
Paredes in its legal analysis. Flennory, 145 F.3d at 1268-69.
4
Amendment 599 is retroactive pursuant to U.S.S.G. § 1B1.10, and, if it applies, warrants
a reduction of Brown’s sentence under § 3582(b)(2).

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 explosive or firearm when determining the sentence for the underlying
offense. A sentence under this guideline 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
Cond uct). . . .

If the . . . weapon that was possessed . . . in the course of the
underlying offense also results in a conviction that would subject the
defendant to an enhancement under . . . § 2K2.1(b)(5) . . ., do not
apply that enhancement. A sentence under this guideline accounts for
the conduct covered by these en hancements because of the relatedness
of that conduct to the conduct that forms the basis for the conviction
under . . . § 924(c). 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) w ould not apply.

We acknowledge the unambiguous language of the first sentence of

Application Note 2: “If a sentence under this guideline is imposed in conjunction

with a sentence for an underlying o ffense, do not apply any specific offense

characteristics for possession . . . of . . . [a] firearm when determining the sentence

for the underlying offense.” U.S.S .G. § 2K 2.4 com ment. (n .2) (emp hasis add ed).

This lan guage r emains u nchang ed from the prior Application N ote 2. United

States v. Diaz, 248 F.3d 1065, 1106-07 (11th Cir. 2001) (“The first sentence of the

new application now reinforces what courts have always known – when a

defendant is convicted of a § 924(c) violation and an underlying offense, the

defendant’s possession of a weapon cannot be used to enhance the level of the

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underlying offense.”) (emphasis in original) (recognizing that the amended

language now includ ed relevant conduct of jointly undertaken crim inal activity,

thus an enhancement based upon a co-defendant’s weapon possession was

prohib ited).

By amending Application Note 2, the Sentencing Commission sought to “(1)

avoid unwarranted disparity and duplicative punishment; and (2) conform

application of guideline weapon enhancements with general guideline principles.”

Amend. 599, Reason for Amendm ent, U.S.S.G. App. C at 72. As acknowledged

by the S entencin g Com mission , we pre viously in terpreted the term n arrow ly to

mean “crime of violence” or “drug trafficking offense,” the two explicit bases for a

§ 924( c) conv iction. See Flennory, 145 F.3d at 1268-69. The United States Court

of Ap peals for the Sixth Circuit, o n the oth er hand , broadly interprete d the term to

include a § 922( g) conv iction as an underly ing offe nse. See United States v.

Smith, 196 F.3d 676, 679-82 (6th Cir. 1999). The Reason for Amendment noted

the conflicting case law between circuits regarding the interpretation of

“underlying offense” and ostensibly passed Amendment 599 to reconcile the

conflict. 5 It is not clear from the language contained in the first paragraph of

5
The commission did not give a clear indication that the Sixth Circuit Smith decision
was the correct interpretation of “underlying offense,” but merely identified the conflict between
the circuits. Amend. 599, Reason for Amendment, U.S.S.G. App. C at 72.

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Application Note 2 whether a § 922(g) conviction for being a felon in possession

of the firearm used in the underlying offense should be precluded from receiving a

§ 2K2.2(b)(5) enhancement because it is an “underlying offense,” or relevant

conduct associated with the underlying offense, that is the basis for the § 924(c)

conviction.6

The answer to this question before us, however, need not turn on the

definition of “underlying offense” in Application Note 2. The amended language

of Application Note 2 continued beyond the revisions to the first paragraph and

added a second parag raph which, in our view , clearly applies here. Specifically,

the amendment language provides that if the weapon possessed “in the course of

the underlying offense also results in a conviction that would subject the defendant

to an enhancement under . . . § 2K2.1(b)(5) . . ., do not apply that enhancement.”

U.S.S.G. § 2K2.4 comment. (n.2) (2001) (emphasis added). The weapons

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Amendment 599 abrogated Flennory to the extent that the new application note
expanded the definition of underlying offense to include the relevant conduct punishable under
U.S.S.G. § 1B1.3. Diaz, 248 F.3d at 1107 (citing the amended language of § 2K2.4 Application
Note 2 to hold that “relevant conduct cannot be used to enhance the offense level of the
underlying offense.”). The Sentencing Commission cited Flennory in its Reason for Amendment
and explained that our narrow interpretation was underinclusive of the circumstances in which
the application note applies to prohibit double counting. Whether a felon in possession
conviction is relevant conduct to the underlying drug offense within the meaning of the
application note and § 1B1.3 is uncertain. The connection is rather attenuated because whether
Brown was a felon and subject to a conviction for possession of the weapon has no factual
connection to the drug trafficking offense, other than the contemporaneity. They are two
different wrongs. Nevertheless, this uncertainty is subsumed by the additional amendment
language and, therefore, we will not decide whether a § 922(g) conviction constitutes relevant
conduct within the meaning of Application Note 2.

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possessed by Brow n in the course of the underlying dru g trafficking offense

resulted in his conviction under § 922(g), therefore, the § 2K2.1(b)(5)

enhancement cannot be applied. Furthermore, the Reason for Amendment states

that, in addition to prohibiting weapons enhancements to the underlying offense,

“this amendment also expands the application note to clarify that offenders who

receive a s entence u nder § 2 K2.4 s hould n ot receive enhanc ements u nder . . . §

2K2.1(b)(5) . . with respect to any weapon . . . connected to the offense underlying

the count of conviction sentenced under § 2K2.4.” Amend. 599, Reason for

Amendment, U.S.S.G. App . C at 72 (emphasis added). The application note does

not, by its terms, require that the defendant also be convicted of the underlying

offense .

As stated in the Reason fo r Ame ndmen t, Amen dment 5 99 “is inten ded to

avoid the duplicative punishment that results when sentences are increased under

both the statutes and the guidelines for substantially the same harm.” Id.

(emph asis adde d). In oth er wor ds, the S entencin g Com mission has chosen to

equate the wrongs being punished by a § 2K2.1(b)(5) enhancement and a § 924(c)

sentence and require the election of one or the other. The commission perceives

the cond uct norm ally embr aced by a § 2K2 .1(b)(5 ) enhan cement to be suffic iently

punish ed by the § 924( c) senten ce and h as amen ded the s entencin g guide lines to

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prevent a defendant from being punished twice for “substantially the same harm.”

Id.

III. CONCLUSION

Pursuant to the unambiguous language of Amendment 599, the §

2K2.1(b )(5) enhan cement app lied to Brow n’s § 922(g ) conviction an d Brow n’s

conviction under § 924(c) punishes twice the same wrong of possessing a firearm

in connection with the underlying felony of drug trafficking. Amendment 599

explicitly prohibits the assessment of the § 2K2.1(b)(5) enhancement to the §

922(g) co nviction und er these circum stances. Acco rdingly, the district co urt’s

denial of Brown’s § 3582(c)(2) motion is REVERSED.

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