United States v. Moon

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   opinion should not be published and is not precedent except under the limited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.




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