United States v. Kenny Hawkins ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-3318
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Kenny Hawkins, *
*
Appellant. *
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Submitted: March 9, 1999
Filed: June 28, 1999
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Before RICHARD S. ARNOLD and HANSEN, Circuit Judges, and STROM,1 District
Judge.
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HANSEN, Circuit Judge.
On July 9, 1997, Kenny Hawkins, Tommy Berry, Antwon Bell, and a juvenile
burglarized Sharp's Gun Store in Gray Summit, Missouri. A grand jury indicted
Hawkins on charges of stealing approximately 28 firearms from a federally licensed
firearms dealer, in violation of 18 U.S.C. §§ 924(m) and 2 (1994 & Supp. II 1996).
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The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska, sitting by designation.
Hawkins pleaded guilty and the district court2 sentenced him to 57 months of
imprisonment followed by three years of supervised release. In addition, the district
court ordered Hawkins to pay restitution. In relevant part, the district court determined
Hawkins' sentence by first calculating his base offense level under U.S. Sentencing
Guidelines Manual § 2K2.1(a)(6) (1997) because he is a person prohibited from
possessing a firearm due to a prior felony conviction. The district court added two
offense levels for the specific offense characteristic under subsection (b)(4) that the
firearms were stolen.
Hawkins' only argument on appeal is that the district court impermissibly double
counted when it enhanced his offense level pursuant to subsection (b)(4). Hawkins
does not dispute that section 2K2.1 is the appropriate guideline for determining his
sentence. According to Hawkins, however, because the guns were not stolen prior to
his acquisition of them in the burglary, a two-level enhancement under subsection (b)(4)
is inappropriate. Hawkins' appeal presents a question of first impression in our circuit,
and we affirm.
"Double counting occurs when one part of the Guidelines is applied to increase
a defendant's punishment on account of a kind of harm that has already been fully
accounted for by application of another part of the Guidelines." United States v.
Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997) (internal quotations omitted). We
review de novo the question of whether impermissible double counting occurred in this
case. See id.
Hawkins' argument ignores the official commentary to USSG § 2K2.1.
Application Note 12 of the 1997 version of the Guidelines Manual provides, in relevant
part:
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The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
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If the only offense to which § 2K2.1 applies is 18 U.S.C. § 922(i), (j), or
(u), 18 U.S.C. § 924(j) or (k), or 26 U.S.C. § 5861(g) or (h) (offenses
involving a stolen firearm or stolen ammunition) and the base offense
level is determined under subsection (a)(7), do not apply the adjustment
in subsection (b)(4) unless the offense involved a firearm with an altered
or obliterated serial number. This is because the base offense level takes
into account that the firearm or ammunition was stolen.
USSG § 2K2.1, comment. (n.12). "Application Note 12 . . . explicitly, carefully and
thoroughly provides that in certain cases of convictions involving stolen or altered
firearms a defendant shall be spared from enhancement under § 2K2.1(b)(4) when his
base offense is determined under § 2K2.1(a)(7)." United States v. Luna, 165 F.3d 316,
326 (5th Cir. 1999) (Dennis, J., concurring), cert. denied, -- S. Ct. --, 1999 WL
231591(U.S. May 17, 1999) (No. 98-8898). By necessary implication, therefore, "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)." Id. Thus we agree with those
circuits concluding that a sentencing court may apply a two-level increase pursuant to
USSG § 2K2.1(b)(4) if the offense of conviction is not one of the offenses enumerated
in Note 12, or the base offense level is not calculated under § 2K2.1(a)(7). See United
States v. Brown, 169 F.3d 89, 93 (1st Cir. 1999); United States v. Turnipseed, 159
F.3d 383, 386 (9th Cir. 1998); United States v. Armstead, 114 F.3d 504, 509 (5th Cir.),
cert. denied, 118 S. Ct. 315 (1997); see also Luna, 165 F.3d at 326-27 (Dennis, J.,
concurring). But see United States v. Rowlett, 23 F.3d 300, 304-05 (10th Cir. 1994)
(concluding that the wording of subsection (b)(4) and Application Note 12 "leave no
doubt that the Guideline term 'stolen' refers to the preexisting condition of the relevant
firearms and ammunition involved in a crime"). Additionally, because Application
Note 12 does not violate the Constitution or a federal statute, nor does it reflect a
plainly erroneous reading of USSG § 2K2.1, it is binding upon this court. See Stinson
v. United States, 508 U.S. 36, 38 (1993) (holding that "commentary in the Guidelines
Manual that interprets or explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading
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of, that guideline"); United States v. Triplett, 104 F.3d 1074, 1081-82 (8th Cir.) (same),
cert. denied, 520 U.S. 1236 (1997), and cert. denied, 520 U.S. 1270 (1997).
Having concluded that Application Note 12 guides our inquiry, resolution of this
appeal is greatly simplified. Hawkins pleaded guilty to a violation of 18 U.S.C. §
924(m), which is not one of the offenses enumerated in Application Note 12.
Moreover, the district court set Hawkins' base offense level pursuant to subsection
(a)(6) (because he is a prohibited person), not subsection (a)(7). We conclude,
therefore, that the district court did not impermissibly double count in applying a two-
level enhancement pursuant to subsection (b)(4) because the firearms were stolen.
We are also persuaded that the structure of section 2K2.1 is such that applying
a two-level enhancement because the firearms were stolen does not amount to double
counting in this case. Section 2K2.1 is a general guideline that applies to a wide variety
of firearms violations. See Brown, 169 F.3d at 93. "It is not necessary that the
firearms involved were stolen for the defendant to be sentenced under § 2K2.1." Id.
In this case, it is undisputed that section 2K2.1 is the proper guideline for determining
Hawkins' sentence. It is also undisputed that Hawkins' base offense level is 14 because
he is a "prohibited person" within the meaning of USSG § 2K2.1(a)(6). Furthermore,
the district court concluded, and Hawkins agreed, that this base offense level does not
take into account the fact that Hawkins stole the firearms. (See Appellee's Add. at 16-
17.) Rather, subsection (a)(6) reflects the minimum base offense level for all prohibited
persons sentenced pursuant to section 2K2.1. Because "the stolen nature of the
firearm[s] was not considered in calculating [Hawkins'] base offense level, . . .
subsequently considering the stolen nature of the firearm[s] in applying subsection
(b)(4) was not 'double-counting.'" Brown, 169 F.3d at 93. Cf. Hipenbecker, 115 F.3d
at 583 (noting that there is no impermissible double counting "if (1) the Commission
intended the result and (2) each statutory section concerns conceptually separate
notions relating to sentencing").
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We conclude that the district court did not impermissibly double count in
applying a two-level increase to Hawkins' sentence because the firearms were stolen.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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