United States v. Frank Waters, Jr. , 306 F. App'x 348 ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1447
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Frank Waters, Jr., *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: December 8, 2008
Filed: January 13, 2009
___________
Before MELLOY and BENTON, Circuit Judges, and DOTY,1 District Judge.
___________
PER CURIAM.
Frank Waters, Jr., pled guilty to one count of Possession of a Stolen Firearm,
18 U.S.C. § 922(j). The district court2 sentenced him to 112 months and eight days
imprisonment. Waters appeals, claiming sentencing error. Jurisdiction being proper
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court affirms.
1
The Honorable David S. Doty, United States Senior District Judge for the
District of Minnesota.
2
The Honorable Stephen N. Limbaugh, Sr., United States District Judge for the
Eastern District of Missouri, now retired.
Waters burglarized a home, stealing numerous firearms. The presentence
investigation report determined that his total offense level was 29 based upon: 1) a
base offense level of 24 under U.S.S.G. § 2K2.1(a)(2); 2) a two-level increase for the
number of firearms; 3) a two-level increase for possessing stolen firearms; 4) a four-
level increase for firearm possession in connection with another felony – burglary; and
5) a three-level deduction for acceptance of responsibility. Waters’s guideline range
was 140 to 175 months, but under U.S.SG. § 5G1.1(c)(1), his range became 120
months due to the statutory maximum. See 18 U.S.C. § 924(a)(2) (maximum sentence
under 18 U.S.C. § 922(j) is 10 years). Waters was sentenced to 112 months and eight
days imprisonment, after credit for nearly eight months of time served on a state
conviction for the same conduct.
Waters argues that his sentence was unreasonable because the court’s two-level
increase under U.S.S.G. § 2K2.1(b)(4) for possessing stolen firearms is already
incorporated in the base offense level for violating § 922(j). This court reviews de
novo the district court’s construction and application of the Sentencing Guidelines,
and reviews for clear error any factual findings regarding enhancements. United
States v. Wintermute, 443 F.3d 993, 1004 (8th Cir. 2006). This court reviews
sentencing decisions for an abuse of discretion. See United States v. Garcia, 512 F.3d
1004, 1006 (8th Cir. 2008), citing Gall v. United States, 128 S. Ct. 586, 597 (2007).
A sentence within the guidelines range is presumptively reasonable on appeal. Id.,
citing Rita v. United States, 127 S. Ct. 2456, 2462 (2007).
Waters does not dispute that U.S.S.G. § 2K2.1(b)(4) was properly applied. An
enhancement under § 2K2.1(b)(4) does not impermissibly “double count” by applying
a two-level increase to a defendant’s sentence because the firearms were stolen. See
United States v. Hawkins, 181 F.3d 911, 912 (8th Cir. 1999) (“By necessary
implication . . . two levels must be added if any firearm was stolen or had an altered
serial number, unless the base level is determined under subsection (a)(7).”) (internal
quotation omitted); see also United States v. Kenney, 283 F.3d 934, 938 (8th Cir. 2002)
(holding that the district court “did not impermissibly double count” in applying a
-2-
two-level enhancement under § 2K2.1(b)(4) where defendant possessed stolen
firearms).
Waters also claims that the four-level enhancement under U.S.S.G. §
2K2.1(b)(6) for possessing firearms in connection with a burglary over-represents the
seriousness of the offense. This court has upheld the enhancement where firearms
were stolen during a burglary. See id. (affirming a sentence applying a four-level
enhancement for the burglary of firearms). The district court did not abuse its
discretion when sentencing Waters.
The judgment of the district court is affirmed.
______________________________
-3-