United States v. Butler ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4328
QUANTAE BUTLER, a/k/a Quantae
Crosby,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, Chief District Judge.
(CR-01-471-ALL)
Submitted: October 23, 2002
Decided: November 7, 2002
Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
Stanley H. Needleman, Baltimore, Maryland, for Appellant. Thomas
M. DiBiagio, United States Attorney, Lisa M. Griffin, Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
2 UNITED STATES v. BUTLER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Quantae Butler appeals his convictions and sentences for one count
of being a felon in possession of a firearm and one count of being a
felon in possession of ammunition, in violation of 18 U.S.C.
§ 922(g)(1) (2000). On appeal, he asserts that the district court erred
by "double counting" certain convictions for purposes of calculating
his offense level and criminal history, by improperly including juve-
nile convictions in determining his criminal history category, and by
failing to vacate one of his convictions as violative of the Double
Jeopardy Clause.
I.
In interpreting the sentencing guidelines, double counting is per-
mitted unless specifically disallowed. United States v. Williams, 954
F.2d 204, 207 (4th Cir. 1992). Both sections 2K2.1(a)(2) and 4A1.1
of the U.S. Sentencing Guidelines Manual (2000) contemplate that
prior felony convictions will be used to determine both a defendant’s
base offense level and his criminal history category. See USSG
§ 2K2.1, comment. (n.15). Thus, the district court properly followed
the Guidelines’ directives. See United States v. Crawford, 18 F.3d
1173, 1180-81 (4th Cir. 1994) (permitting "triple counting" under the
Guidelines); see also United States v. Alessandroni, 982 F.2d 419,
422-23 (10th Cir. 1992); United States v. Wyckoff, 918 F.2d 925, 927
(11th Cir. 1990).
II.
Butler next argues that two convictions, committed when he was
under eighteen, should not have been used to compute his criminal
history. While the Guidelines limit the use of certain juvenile convic-
tions for calculating criminal history, the mere fact that a conviction
UNITED STATES v. BUTLER 3
resulted from a crime committed before the defendant reached the age
of eighteen will not automatically remove the conviction from consid-
eration. See United States v. Mason, 284 F.3d 555, 558-59 (4th Cir.
2002). Because it is undisputed that the challenged convictions were
adult convictions1 and resulted in sentences over one year and one
month, the convictions were properly included in the calculation of
Butler’s criminal history. See USSG § 4A1.2(d)(1).
III.
Finally, Butler argues that he should not have been convicted on
both counts or sentenced to separate prison terms for his firearm and
ammunition convictions. The Government concedes error in this
regard. Because simultaneous possession of a firearm and of ammuni-
tion is but one offense,2 United States v. Keen, 96 F.3d 425, 433-34
(9th Cir. 1996), as amended, 104 F.3d 1111 (9th Cir. 1997); United
States v. Hall, 77 F.3d 398, 402 (11th Cir. 1996), we remand the case
for entry of judgment on only Count 1 or Count 2 and for sentencing
and a special assessment as to only one of the two counts. We affirm
the remaining conviction and sentence. We dispense with oral argu-
ment, because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
1
"A conviction for an offense committed prior to age eighteen is an
adult conviction if it is classified as an adult conviction under the laws
of the jurisdiction in which the defendant was convicted." USSG
§ 4B1.2, comment. (n.1). The Government claims that both disputed con-
victions were adult convictions. Butler does not address the issue. In
addition, the PSR categorized those convictions as adult convictions, and
Butler did not object.
2
Butler possessed a loaded gun when apprehended by the police.