U.S. v. Friend, 02-1366.

• Decision Date: 16 September 2002
• Docket Number: No. 02-1366.,02-1366.
• Parties: UNITED STATES of America, Appellee, v. Charles FRIEND, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

303 F.3d 921

UNITED STATES of America, Appellee, v. Charles FRIEND, Appellant.

No. 02-1366.

United States Court of Appeals, Eighth Circuit.

Submitted: September 10, 2002.

Filed: September 16, 2002.

Noah K. Wood, Springfield, MO, for Appellant.

Steven N. Snyder, Assistant U.S. Attorney, Fort Smith, AR, for Appellee.

Before BOWMAN, LAY, and MURPHY, Circuit Judges.

PER CURIAM.

The District Court¹ convicted Charles Friend of one count of attempting to injure a federal building in violation of 18 U.S.C. §§ 7(3) and 1363 (1994 & Supp.), with the sentence determined pursuant to United States Sentencing Guidelines (U.S.S.G.) § 2B1.3 (1995). Friend was also convicted of two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (1994 & Supp.), with the appropriate sentences determined pursuant to U.S.S.G. § 2K2.1 (1996). Friend appeals his sentence, arguing that Amendment 599 of the Guidelines prohibited enhancement under § 2K2.1(b). Holding that Amendment 599 applies only to 18 U.S.C. § 924(c) (2000 & Supp.) convictions, and not to § 922(g) convictions, we affirm the District Court's sentence.

Had the Sentencing Commission not published Amendment 599, both parties would agree that U.S.S.G. § 2K2.1 governs sentencing for felon-in-possession convictions pursuant to 18 U.S.C. § 922(g), while U.S.S.G. § 2K2.4 governs sentencing for convictions pursuant to 18 U.S.C. § 924(c). The controversy in this case is whether Amendment 599, which states that its purpose is to clarify U.S.S.G. § 2K2.4, actually creates an exception to § 2K2.1 merely by making reference to 18 U.S.C. § 922(g) in its explanation. The first sentence of Amendment 599's stated rationale provides our answer.

Amendment 599, which amends Note 2 of the Application Notes to the Commentary to § 2K2.4, attempts "to clarify under what circumstances defendant's sentence for violations of 18 U.S.C. § 924(c) in conjunction with convictions for other offenses may receive weapons enhancements ... for those other offenses." U.S.S.G. Manual, Supp. to App. C at 71 (2001). This language makes clear that Amendment 599 applies only to 18 U.S.C. § 924(c) convictions. See United States v. Diaz, 248 F.3d 1065, 1106-07 (11th Cir.2001) ("The first sentence of the new application note 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."); Velasquez v. United States, 161 F.Supp.2d 60, 62 (D.R.I.2001) (holding Amendment 599 irrelevant because defendant's § 924(c) violation vacated).

Amendment 599 explains that, in order to avoid double-counting, an enhancement that might seem to be appropriate under § 2K2.1(b) could be inappropriate for a sentence under § 2K2.4. The rationale is that the conduct that triggered the § 2K2.1(b) enhancements is related to the conduct that forms the basis for the 18 U.S.C. § 924(c) conviction. For sentencing purposes, that conduct should not be counted twice. In explaining this principle, Amendment 599 offers an example where the Guidelines do not permit double-counting of conduct involving weapons: "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." U.S.S.G. Manual, Supp. to App. C at 71. An armed robbery conviction would be subject to U.S.S.G. § 2B3.1, which contains enhancements for weapons, so applying § 2K2.1(b)(5) would be double-counting. Defendant now argues that his case is the same as the Amendment 599 example, and, therefore, § 2K2.1(b)(5) enhancements are impermissible.

Defendant's conviction for attempting to injure a federal building, however, is not an underlying offense to his 18 U.S.C. § 922(g) convictions. Friend shot at the federal building on March 5, 1996. His possession-of-firearms violations occurred on February 19 and March 12, 1996. They are...