U.S. v. Brown, No. 01-16881.

• Decision Date: 05 June 2003
• Docket Number: No. 01-16881.
• Citation: 332 F.3d 1341
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Don Newcombe BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

332 F.3d 1341

UNITED STATES of America, Plaintiff-Appellee, v. Don Newcombe BROWN, Defendant-Appellant.

No. 01-16881.

United States Court of Appeals, Eleventh Circuit.

June 5, 2003.

Joseph L. Ledford, Charlotte, NC, for Defendant-Appellant.

Thomas Aloysius Devlin, Jr., Atlanta, GA, for Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before ANDERSON, BIRCH and BARKETT, 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 possession of a firearm, in violation of 18 U.S.C. § 922(g). We 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 impermissible result. For that reason, we REVERSE the district court's denial of Don Newcombe Brown's motion for modification of his original sentence pursuant to 18 U.S.C. § 3582(c)(2).

I. BACKGROUND

In a five-count indictment, Brown was charged in Count 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 concealment of twenty-six stolen firearms, in violation of 18 U.S.C. § 922(j); in Count Three with possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k); in Count Four with attempting to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; and in Count Five with using and carrying thirty-five firearms during and in relation to the drug trafficking offense alleged in Count Four, in violation of 18 U.S.C. § 924(c).

Pursuant to a negotiated plea agreement, Brown pled guilty to Counts One and Five of the indictment. The district 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 connection with another felony (based on Count Four, possession with 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 incarceration on Count One, followed by a mandatory consecutive term of sixty (60) months on Count Five, to be followed by three years supervised release.

Brown filed a motion to modify his sentence, pursuant to 18 U.S.C. § 3582(c)(2), based on Amendment 599 to the Sentencing Guidelines. 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, which is now properly before us.

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 guidelines, for abuse of discretion. 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, 135 L.Ed.2d 392 (1996).

The issue is whether Amendment 599 and the current version 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 with another felony offense to Brown's § 922(g) conviction for being a felon in possession of a firearm, when he was also sentenced for his § 924(c) conviction for using or 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" because 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 felony drug trafficking crime.

When a defendant is convicted under § 922(g) of being a felon in possession of a firearm, the applicable sentencing guideline is § 2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition). Section 2K2.1(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 defendant is convicted under § 924(c), for possessing a firearm in relation to a drug crime, the relevant sentencing guideline is § 2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation 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 § 2K2.4 provides certain instances when specific offense characteristics regarding explosives or firearms are not to be applied to the base offense level for other convictions.¹

Prior to Amendment 599, the relevant portion 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 underlying offense, any specific offense characteristic for the possession, use or discharge of an explosive or firearm ... is not to be applied in respect to the guideline for the underlying offense." 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 § 2K2.1(b)(5) enhancement.² We followed our precedent in United States v. 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 purposes of sentencing a § 924(c) violation and applying § 2K2.4 Application Note 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.3d 229 (6th Cir. 1994)). Accordingly, we held that § 2K2.4 Application Note 2 did not apply because a § 922(g) conviction was not an "underlying offense" within the definition of the note and, therefore, the § 2K2.1(c)(1) cross-referencing enhancement was not double counting the conduct punished by the § 924(c) consecutive sentence. Flennory, 145 F.3d at 1269.

Effective November 2000, Amendment 599⁴ to the Sentencing Guidelines changed the language of Application Note 2, which now provides, in pertinent part:

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

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 enhancements 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) would 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 offense, do not apply any specific offense characteristics for possession... of ... [a] firearm when determining the sentence for the underlying offense." U.S.S.G. § 2K2.4 comment. (n. 2) (emphasis added). This language remains unchanged from the prior Application Note 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 underlying offense."...