United States v. Stinson ( 2020 )

United States Court of Appeals
For the First Circuit
No. 18-1386
UNITED STATES,
Appellee,
v.
Travis J. Stinson,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Howard, Chief Judge,
Thompson and Barron, Circuit Judges.
Elizabeth A. Billowitz, on brief for Appellant
Renée M. Bunker, Assistant U.S. Attorney, Appellate
Chief, and Halsey B. Frank, United States Attorney, on brief for
Appellee
October 23, 2020
HOWARD, Chief Judge. Travis Stinson appeals the length
of his sentence for firearms-related convictions, claiming that
the district court improperly applied an excess of sentencing
enhancements to a common set of facts. We affirm the sentence.
Background
On July 21, 2017, Stinson pled guilty to one count of
aiding and abetting the theft of sixteen firearms from a licensed
firearms dealer, in violation of 18 U.S.C. §§ 2, 922(u); and one
count of possession of a firearm by a felon, in violation of 18
U.S.C. § 922(g)(1). Because Stinson pled guilty, we "draw the
facts from the change-of-plea colloquy, the uncontested portions
of the presentence investigation report [ ], and the transcript of
the disposition hearing." United States v. Heindenstrom, 946 F.3d
57, 59 (1st Cir. 2019) (quoting United States v. Narváez-Soto, 773
F.3d 282, 284 (1st Cir. 2014)).
On October 12, 2016, Stinson was involved in
burglarizing and stealing sixteen firearms from JG Pawn Shop in
Bangor, Maine. On the day of the burglary, Stinson recruited two
others to assist him in the crimes, promising to pay one of them
in heroin. That night, the trio drove to the area of the pawnshop,
and the accomplice to whom Stinson had promised the drugs broke in
and committed the thefts. After the thefts, the trio used heroin
together and twice changed vehicles. Stinson then drove with his
two accomplices "to New Hampshire and Massachusetts, where the
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firearms were traded for drugs." As promised, Stinson gave the
drugs to the accomplice who had burglarized the pawnshop. That
accomplice then gave drugs to the other accomplice.
Two days later, Maine authorities arrested and detained
Stinson on related charges. Several months later, while Stinson
was still in state custody, he appeared in federal district court
and entered a guilty plea to an information charging the two
federal firearms counts. Sentencing was scheduled, and, in due
course, a probation and pretrial services officer prepared a
presentence investigation report (PSR).
The PSR proceeded through several common steps under the
United States Sentencing Guidelines -- only one of which is
challenged on appeal -- first setting a base offense level and
then applying a number of enhancements to determine an adjusted
offense level, then recommending a reduction for acceptance of
responsibility to arrive at a total offense level of 27. Stinson's
criminal history score established a criminal history category of
VI.
Relevant to this appeal are two sentencing enhancements
from the guidelines. One of the enhancements resulted in a four-
level increase in the adjusted offense level for trafficking
firearms. See U.S.S.G. §2K2.1(b)(5). The other enhancement
applied by the PSR was an "other-felony-offense" enhancement,
which resulted in a four-level increase in the adjusted offense
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level; this enhancement was recommended on the basis that Stinson
used or possessed the firearms in connection with another felony
offense, and transferred the firearms with knowledge, intent, or
reason to believe that they would be used or possessed in
connection with another felony offense. See U.S.S.G.
§2K2.1(b)(6)(B). To support this enhancement, the PSR cited two
facts: (1) Stinson obtained the firearms during the burglary of JG
Pawn Shop and (2) he traded the firearms for heroin.
At sentencing, the district court accepted the guideline
calculations as set forth in the PSR, rejecting an argument by
Stinson's counsel that applying the other-felony-offense
enhancement in U.S.S.G. §2K2.1(b)(6)(B) constituted impermissible
double counting. The sentencing judge noted that the recommended
guideline range for a total offense level of 27 and a criminal
history category of VI was 130 to 162 months. Had the judge
accepted Stinson's argument and not applied one of the four-level
enhancements, Stinson's total offense level would have been 23 and
his recommended sentencing range 92 to 115 months of imprisonment.
See U.S.S.G. ch. 5, pt. A (sentencing table). After hearing from
Stinson and his family members, hearing the prosecution's
recommendation of a below-guidelines sentence of 120 months, and
crediting the 17 months Stinson had spent in state custody, the
court sentenced Stinson to 90 months imprisonment and a term of
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supervised release of three years. Stinson timely appealed his
sentence.
Standard of Review
In reviewing the "procedural reasonableness of a
sentence, we afford de novo review to the sentencing court's
interpretation and application of the sentencing guidelines, assay
the court's factfinding for clear error, and evaluate its judgment
calls for abuse of discretion." United States v. Ruiz-Huertas,
792 F.3d 223, 226 (1st Cir. 2015). However, if a party fails to
preserve claims of error in the district court, we review the
unpreserved claims for plain error only. See id.
The parties dispute whether Stinson adequately preserved
his arguments, but we need not resolve that issue, because the
outcome is the same under de novo or plain error review. See
United States v. Delgado-Flores, 777 F.3d 529, 529 (1st Cir. 2015).
Therefore, we will assume arguendo that Stinson preserved his
arguments on appeal and apply de novo review. See United States
v. Ubiles-Rosario, 867 F.3d 277, 285 (1st Cir. 2017).
Analysis
We have repeatedly held that a court may apply different
enhancements based on the same nucleus of operative facts if the
enhancements target "discrete concerns." United States v. Fiume,
708 F.3d 59, 61 (1st Cir. 2013) (quoting United States v. Lilly,
13 F.3d 15, 19 (1st Cir. 1994)). In this sense, double counting
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is "less sinister than the name implies," United States v. Zapata,
1 F.3d 46, 47 (1st Cir. 1993), and is more appropriately thought
of as "multiple use" of the same underlying fact. Fiume, 708 F.3d
at 61 n.2. We are reluctant to forbid multiple use of a fact
unless the Sentencing Commission has explicitly forbidden it or
there is a compelling basis for reading into the guidelines such
a prohibition. Id. at 62 n.3 (collecting examples of Commentary
instructing against application of certain enhancements when same
aspect of relevant fact is used in other sentencing calculations);
see also United States v. Chiaradio, 684 F.3d 265, 283 (1st Cir.
2012).
The trafficking enhancement set out in Section
2K2.1(b)(5) states: "If the defendant engaged in the trafficking
of firearms, increase by 4 levels." Application Note 13 to Section
2K2.1 explains that Section 2K2.1(b)(5) interacts with other
subsections in the following manner:
Interaction with Other Subsections.--In a case
in which three or more firearms were both
possessed and trafficked, apply both
subsections (b)(1) and (b)(5). If the
defendant used or transferred one of such
firearms in connection with another felony
offense (i.e., an offense other than a
firearms possession or trafficking offense) an
enhancement under subsection (b)(6)(B) also
would apply.
U.S.S.G. §2K2.1, cmt. n.13.
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In turn, the other-felony-offense enhancement set out in
Section 2K2.1(b)(6)(B) states: "If the defendant . . . used or
possessed any firearm or ammunition in connection with another
felony offense; or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to believe that it
would be used or possessed in connection with another felony
offense, increase by 4 levels." Section 2K2.1's Application Note
14 explains that Subsection (b)(6)(B) applies even when the "other
offense" is burglary:
Application When Other Offense is Burglary or
Drug Offense.--Subsections (b)(6)(B) and
(c)(1) apply (i) in a case in which a defendant
who, during the course of a burglary, finds
and takes a firearm, even if the defendant did
not engage in any other conduct with that
firearm during the course of the burglary; and
(ii) in the case of a drug trafficking offense
in which a firearm is found in close proximity
to drugs, drug-manufacturing materials, or
drug paraphernalia. In these cases,
application of subsections (b)(6)(B) and, if
the firearm was cited in the offense of
conviction, (c)(1) is warranted because the
presence of the firearm has the potential of
facilitating another felony offense or another
offense, respectively.
U.S.S.G. §2K2.1, cmt. n.14.
Stinson's counsel conceded at the sentencing hearing
that he could not find anything in the guidelines proscribing
simultaneous application of the trafficking and other-felony-
offense enhancements. We also find no such prohibition.
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Stinson correctly observes that Application Note 13
requires application of the other-felony-offense enhancement if,
in a case in which three or more firearms were trafficked, a
defendant "used or transferred" a firearm in connection with
another felony. Stinson did not use or transfer the firearms
during the course of the burglary; he only possessed them. But
Section 2K2.1(b)(6)(B) itself states that it applies when a
defendant "used or possessed" a firearm in connection with another
felony offense. And Application Note 14 clarifies that the other-
felony-offense enhancement applies in the case of a burglary when
a defendant "finds and takes a firearm, even if the defendant did
not engage in any other conduct with that firearm during the course
of the burglary." Application Note 14 therefore addresses the
very facts of this case. The two sentencing enhancements can
operate independently of one another, even if Application Note 13
provides guidance about how judges should apply both Section
2K2.1(b)(5) and Section 2K2.1(b)(6)(B) when the defendant's crime
triggers both enhancements.
We lack any explicit instruction not to apply the other-
felony-offense enhancement when the other offense is burglary and
the defendant did not use or transfer the firearm during the
burglary. That an Application Note describes one set of
circumstances in which an enhancement may be applied does not mean
the enhancement is available only in those specific circumstances.
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See, e.g., United States v. Brake, 904 F.3d 97, 101-02 (1st Cir.
2018) (finding no impermissible multiple use in application of
stolen firearm enhancement and other-felony-offense enhancement
supported by acquisition of firearms during burglary). Stinson's
reading of Application Note 13 would have us disregard the plain
text of Section 2K2.1(b)(6)(B) in favor of a stretched
interpretation of guideline commentary. This we cannot do. See
Stinson v. United States, 508 U.S. 36, 38 (1993) ("[C]ommentary in
the Guidelines Manual that interprets or explains a guideline is
authoritative unless it . . . is inconsistent with, or a plainly
erroneous reading of, that guideline."). Additionally, "[a]n
application note and a guideline are inconsistent only when
'following one will result in violating the dictates of the
other.'" United States v. Piper, 35 F.3d 611, 617 (1st Cir. 1994)
(quoting Stinson, 508 U.S. at 43). Application Note 13 does not
forbid applying the other-felony-offense enhancement in this case,
nor does it violate the guideline it interprets.
Stinson further asks us to consider holdings from the
Second and Fifth Circuits vacating sentences due to misapplication
of Section 2K2.1(b)(6)(B). In the Second Circuit case, United
States v. Young, 811 F.3d 592 (2d Cir. 2016), the defendant
received a Section 2K2.1(b)(5) enhancement for trafficking in
firearms and a Section 2K2.1(b)(6)(B) enhancement for possessing
or transferring firearms to others with knowledge, intent, or
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reason to believe they will be used or possessed in connection
with another felony offense. See id. at 601. The Second Circuit
read Application Note 13 as prohibiting the application of both
the trafficking enhancement and the other-felony-offense
enhancement (where the other qualifying offense is the same
trafficking) because of the Note's language excluding "firearms
possession or trafficking offense[s]" as qualifying offenses. Id.
at 602 (quoting U.S.S.G. §2K2.1, cmt. n.13). The Fifth Circuit's
decision in United States v. Guzman, 623 F. App'x 151 (5th Cir.
2015) likewise found that the Section 2K2.1(b)(6)(B) other-felony-
offense enhancement for "exporting firearms without a license" and
the trafficking enhancement could not both apply when based on the
same trafficking offense. Id. at 152, 155-156.
Though well-reasoned, neither Young nor Guzman involved
a burglary offense as the other-felony-offense for enhancement
purposes. There is no text in the guidelines or Application Notes
forbidding application of Section 2K2.1(b)(6)(B) here. To the
contrary, Application Note 13 explains that with a trafficking
enhancement under Section 2K2.1(b)(5), an other-felony-offense
enhancement under Section 2K2.1(b)(6)(B) would apply; and further,
Application Note 14 explains that the other-felony-offense
enhancement under Section 2K2.1(b)(6)(B) would apply when the
other offense is burglary, "even if the defendant did not engage
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in any other conduct with that firearm during the course of the
burglary." U.S.S.G. §2K2.1, cmt. n.14.
Therefore, we hold that applying the other-felony-
offense enhancement supported by Stinson's burglary offense was
appropriate. See also United States v. Shelton, 905 F.3d 1026,
1034-35 (7th Cir. 2018) (upholding other-felony-offense
enhancement along with trafficking enhancement where other felony
offense was burglary).
Conclusion
For the above reasons, Stinson's sentence is affirmed.
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