United States v. Logan Toomer ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-1535
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United States of America
Plaintiff - Appellee
v.
Logan Matthew Toomer
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: January 11, 2021
Filed: February 22, 2021
[Unpublished]
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Before LOKEN, GRASZ, and KOBES, Circuit Judges.
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PER CURIAM.
Logan Matthew Toomer and two others burglarized a residence in Springville,
Iowa, and stole numerous items, including roughly $50,000 in cash and multiple
firearms. While in possession of the stolen firearms, Toomer unlawfully used
methamphetamine. He pled guilty to possession of firearms by a drug user. See 18
U.S.C. §§ 922(g)(3), 924(a)(2). The district court1 imposed a sentence of 53 months
of imprisonment.
Toomer appeals, contending the district court improperly calculated his
United States Sentencing Guidelines Manual (“Guidelines” or “U.S.S.G.”) range by
double counting the same conduct when applying two separate enhancements. “We
review the district court’s application of the . . . [G]uidelines, including the
permissibility of double counting, de novo.” United States v. Kenney, 283 F.3d 934,
936 (8th Cir. 2002).
Here, the district court applied a two-level enhancement under U.S.S.G.
§ 2K2.1(b)(4)(A) and a four-level enhancement under U.S.S.G. §2K2.1(b)(6)(B).
The former applies when a defendant’s conduct involves a stolen firearm. The latter
applies when a defendant “used or possessed any firearm or ammunition in
connection with another felony offense[.]” According to Toomer, in this case, the
enhancements overlap because the other felony offense for purposes of
§ 2K2.1(b)(6)(B) was a state-law claim of burglary with theft as a necessary factual
predicate. Having accounted for the theft under § 2K2.1(b)(6)(B), Toomer
maintains it was improper to also enhance his sentence for theft of a firearm under
§ 2K2.1(b)(4)(A).
This is not the first time this issue has come before this court, and our
precedent forecloses Toomer’s argument. See United States v. Canamore, 916 F.3d
718, 721 (8th Cir. 2019) (rejecting an argument that application of both
enhancements constituted impermissible double counting because the issue was
decided in Kenney, 283 F.3d at 937, and United States v. Hedger, 354 F.3d 792, 795
(8th Cir. 2004)). Similar to this case, Kenney involved a felon-in-possession charge
related to a home burglary and theft of guns. 283 F.3d at 935. In rejecting a
1
The Honorable C.J. Williams, United States District Judge for the Northern
District of Iowa.
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challenge to the propriety of applying both enhancements, 2 we explained that
“[d]ouble counting may be permissible . . . in situations where (1) the Sentencing
Commission intended the result and (2) ‘each statutory section concerns
conceptually separate notions relating to sentencing.’” Id. at 937 (quoting United
States v. Rohwedder, 243 F.3d 423, 426–27 (8th Cir. 2001)). We determined the
Commission intended both enhancements “be applied to firearms possession
offenses involving an additional felony offense” such as burglary. Id. at 938.
Further, we reasoned the two enhancements were “conceptually separate,”
explaining § 2K2.1(b)(4) “punishes for mere possession,” while § 2K2.1(b)(6)
“punishes for the participation in another felony offense.” Id. Having satisfied both
prongs of the test, we held that application of both enhancements was not
impermissible double counting. Id. at 939.
Because Toomer fails to meaningfully distinguish Kenney and its progeny, we
must reject his argument on appeal. See Hedger, 354 F.3d at 795 (“[O]ne panel of
the court cannot reverse another panel.”) (quoting United States v. Perkins, 94 F.3d
429, 437 (8th Cir. 1996)). Accordingly, we affirm Toomer’s sentence.
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2
Until 2006, the Guidelines placed § 2K2.1(b)(6)(B)’s enhancement at
§ 2K2.1(b)(5). See Canamore, 916 F.3d at 721 n.3.
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