Case: 17-11473 Date Filed: 06/27/2018 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11473
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cr-20359-KMW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CURTIS BUCKINGHAM JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 27, 2018)
Before TJOFLAT, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 17-11473 Date Filed: 06/27/2018 Page: 2 of 6
Curtis Buckingham Johnson appeals his 90-month total sentence for 1 count
of conspiracy to possess with intent to distribute controlled substances within
1,000 feet of a school, in violation of 21 U.S.C. § 846, 1 count of possession of a
firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i), and 1 count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Johnson argues that the district court erred in
calculating his base offense level because he did not possess the qualifying firearm.
Johnson also argues that the district court improperly applied two sentence
enhancements because he did not have possession of between three and seven
firearms, nor stolen firearms. Further, Johnson argues that application of the
enhancement for the number of firearms resulted in impermissible double
counting.
I. Base Offense Level
For Sentencing Guidelines issues, we review purely legal questions de novo,
a district court’s factual findings for clear error, and, in most cases, a district
court’s application of the guidelines to the facts with “due deference.” United
States v. Rothenberg,
610 F.3d 621, 624 (11th Cir. 2010). “Due deference” is
tantamount to clear error review.
Id. “For a finding to be clearly erroneous, we
must be left with a definite and firm conviction that a mistake has been
committed.”
Id. (quotation marks omitted).
2
Case: 17-11473 Date Filed: 06/27/2018 Page: 3 of 6
The Sentencing Guidelines prescribe a base offense level of 20 for a
defendant who committed an offense involving a semiautomatic firearm as a
prohibited person. U.S.S.G. § 2K2.1(a)(4)(B)(i)(I), (a)(4)(B)(ii)(I). We have held
that a defendant’s possession of a firearm “may be actual or constructive, joint or
sole.” United States v. Gunn,
369 F.3d 1229, 1234 (11th Cir. 2004) (addressing
possession of a firearm under 18 U.S.C. § 924(c)). A defendant’s presence near a
firearm or mere association with someone else who possesses a firearm is
insufficient to prove constructive possession. United States v. Perez,
661 F.3d 568,
576 (11th Cir. 2011). But “[t]he firearm need not be on or near the defendant’s
person in order to amount to knowing possession.”
Id. (internal quotation
omitted). To show constructive possession, the government need only prove that
the defendant (1) was aware of the firearm’s presence and (2) had the ability and
intent to later exercise dominion and control over that firearm.
Id. Intention to
exercise dominion and control may be shown where the defendant participates in a
joint criminal venture in which a firearm is intended to play a central part, “even if
the defendant never intended to use the firearm himself.”
Id.
Conspirators are liable for the reasonably foreseeable acts of their
co-conspirators in furtherance of the conspiracy, and we have held that this rule of
liability applies when sentencing a defendant for possession and use of a firearm.
United States v. Aduwo,
64 F.3d 626, 629–30 (11th Cir. 1995) (applying
3
Case: 17-11473 Date Filed: 06/27/2018 Page: 4 of 6
co-conspirator liability to a defendant sentenced under § 2K2.1(c)). In analyzing a
different sentencing guideline, we have held that it was not clearly improbable that
there was a connection between drug trafficking and firearms where the guns were
found in the location out of which drugs were sold and part of the “high risk
activity” of selling drugs may entail protecting oneself, proceeds, and inventory.
United States v. Fields,
408 F.3d 1356, 1359 (11th Cir. 2005).
Although Johnson argues that he could not have foreseen Coleman’s
possession of firearms, Johnson admitted to possessing all the firearms, including
those recovered from Coleman’s room in his plea colloquy. Further, Johnson
concedes possession for one of the firearms and participated in a joint criminal
venture of drug trafficking. Thus, Johnson has admitted the conduct underlying
the sentence enhancements, and the district court did not clearly err in finding that
Johnson constructively possessed the firearms that led to his calculated base
offense level and two sentence enhancements.
II. Double Counting
We review de novo a double counting claim. United States v. Cubero,
754
F.3d 888, 892 (11th Cir. 2014). “Impermissible double counting occurs only 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.”
Id. at 894 (internal quotation omitted). We
4
Case: 17-11473 Date Filed: 06/27/2018 Page: 5 of 6
presume that the Sentencing Commission intended separate guideline sections to
apply cumulatively, unless specifically directed otherwise.
Id.
Section 2K2.1 provides for a two-level enhancement for an offense
involving between three and seven firearms and a two-level enhancement if the
offense involved any stolen firearm. § 2K2.1(b)(1)(A), (b)(4). Amendment 599 of
the Guidelines provides that, when a defendant is being sentenced for both
violation of 18 U.S.C. § 924(c) and the underlying offense, no weapons
enhancement for the underlying offense should be applied. U.S.S.G. App. C,
Amend. 599; U.S.S.G. § 2K2.4, comment. (n.4). Amendment 599 is inapplicable
where the underlying offense that received the enhancements is different from the
offense forming the basis of a § 924(c) conviction. United States v. Pringle,
350
F.3d 1172, 1180–81 (11th Cir. 2003).
The district court did not engage in double counting by applying
enhancements for the number of firearms and stolen nature of the firearms because
the enhancements were not already accounted for in the base offense level
guideline. The base offense level of 20 only accounted for Johnson’s possession of
a firearm as a prohibited person. It did not take into account the number of
firearms possessed or the possibility that some of the firearms may have been
stolen, so there was no double counting. Further, Amendment 599 is not an
applicable provision because Johnson did not receive a sentence based on the
5
Case: 17-11473 Date Filed: 06/27/2018 Page: 6 of 6
underlying offense of conspiracy to distribute drugs; rather, he received a sentence
based on being a felon in possession of a firearm and the mandatory minimum
required by 18 U.S.C. § 924(c)(1)(A).
Thus, we affirm.
AFFIRMED.
6
