United States v. Szakacs, Jeffrey ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-3932, 98-3963, 98-4299, 99-1532 & 99-2163
United States of America,
Plaintiff-Appellee,
v.
Jeffrey Szakacs, Daniel Spanley, John M. Neff,
Tyrone Noble and Brian Baloski,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 97 CR 155--James T. Moody, Judge.
Argued November 11, 1999--Decided May 2, 2000
Before Bauer, Easterbrook and Kanne, Circuit Judges.
Kanne, Circuit Judge. Five defendants who
planned and attempted to carry out a robbery of
a major Indiana gun store appeal their sentences
for convictions on one count of conspiracy to
steal firearms from a licensed firearms dealer.
The five, Jeffrey Szakacs, Daniel Spanley, John
M. Neff, Tyrone Noble and Brian Baloski, were
among a group of seven men who planned to rob
Fetla’s Trading Co., a gun and sporting goods
store in Valparaiso, Indiana. Because of the
local police’s quick response, the attempt was
foiled and the seven were arrested before they
made it to the store. All were indicted and
eventually pleaded guilty. The district court
sentenced Szakacs, Spanley and Baloski to thirty
months in prison, Neff to thirty-three months and
Noble to eighty-four months. The defendants now
appeal the calculation of their sentences under
the United States Sentencing Guidelines. We
affirm the upward adjustment of the defendants’
sentences for offenses involving fifty or more
firearms, but because the phrase "another felony
offense" was applied incorrectly, we vacate that
four-level upward adjustment.
I. History
The defendants, members of the Gangster
Disciples street gang, gathered in the afternoon
of November 6, 1997, at a fast-food restaurant in
Crown Point, Indiana, and decided to meet later
at the Schererville apartment of John Neff. Early
that evening, the defendants met at Neff’s
apartment and agreed to burglarize Fetla’s gun
shop by cutting a hole in the wall, as their
leader, Tyrone Noble, had done successfully at
another Indiana gun shop a few days earlier.
Fetla’s stocks a large number of firearms, many
of them in locked display cases or cabled
together, making the transportation of large
numbers of weapons relatively easy for a group of
men with trucks and burglary equipment. On the
night of the planned burglary, Fetla’s had a
stock of more than 1,000 firearms, most of them
locked in glass display cases. The store also had
shopping carts available for customers and
backpacks for sale, which could have been used to
carry the weapons. The defendants planned to take
"big cases" of guns and "grab everything they
could" with the intention of arming their gang
for a street war.
The group decided to use two trucks for the
burglary. Noble, James Blanton and Baloski first
would drive in a black pickup truck to East
Chicago, Indiana, to get tools needed for the
burglary. The others, including Neff, Christopher
Hicks,/1 Spanley and Szakacs, would drive a red
pickup truck to the rendezvous point, a Speedway
gas station in Valparaiso, to wait for Noble and
the others. During the ride from Schererville to
Valparaiso, one of the defendants in the red
truck aimed a Smith & Wesson 9mm semiautomatic
handgun out the window and fired it into an open
field. The reason for this is not clear.
A Valparaiso police officer patrolling the area
noticed the occupied red truck waiting in the
parking lot of the gas station that was closed at
that time. He became suspicious, and as he turned
his car around to investigate, the truck drove
away from the station. The officer chased the
truck, pulled it over and interrogated the four
men. Apparently suspicious of their stories, the
officer directed the men to get out of the truck,
searched it and found the 9mm gun. The men were
arrested and gave confessions leading to the
execution of a search warrant on Neff’s apartment
the following morning. The occupants of the
second truck, seeing their confederates’ truck on
the side of the road rather than at the Speedway
gas station, called off the heist and returned to
Neff’s apartment. Police arrested the remaining
three men in the morning when they searched
Neff’s home.
II. Analysis
The defendants challenge the district court’s
application of the Sentencing Guidelines. First,
they claim that the court erred in finding that
the robbery involved fifty or more firearms,
which merits a six-level enhancement under sec.
2K2.1(b)(1). We review for clear error a
sentencing court’s findings of fact, reversing
only if "after considering all of the evidence,
the reviewing court is left with the definite and
firm conviction that a mistake has been
committed." See United States v. Wyatt, 102 F.3d
241, 246 (7th Cir. 1996) (internal citation
omitted). Second, the defendants collectively
claim that the sentencing court erred in
interpreting the phrase "another felony offense"
in sec. 2K2.1(b)(5). We review de novo a
sentencing judge’s resolution of a question of
law. See United States v. McClanahan, 136 F.3d
1146, 1149 (7th Cir. 1998). Finally, Noble
individually challenges the use of hearsay
evidence at his sentencing hearing. Whether
hearsay contains the indicia of reliability
necessary to be used in a courtroom is a trial
court decision that we review only for abuse of
discretion. See United States v. Hall, 165 F.3d
1095, 1108 (7th Cir. 1999); United States v.
Sinclair, 74 F.3d 753, 758-59 (7th Cir. 1996).
A. Number of Firearms
Defendants convicted of conspiracy are sentenced
according to Guidelines sec. 2X1.1, which directs
the court to apply the base-offense level and any
adjustments from the guideline for the
substantive offense underlying the conspiracy, in
this case sec. 2K2.1. U.S. Sentencing Guidelines
Manual sec.sec. 2X1.1, 2K2.1. Section 2K2.1(b)(1)
enhances the defendants’ sentences by six levels
if the offense involved "50 or more firearms."
U.S.S.G. sec. 2K2.1(b)(1). Because the defendants
here were arrested before they ever set foot on
Fetla’s property, they argue that the number of
firearms "involved" is too speculative to support
an enhancement of their sentences. They cite
Application Note 9 to sec. 2X1.1 for support:
"But the only specific offense characteristics
from the guideline for the substantive offense
that apply are those that are determined to have
been specifically intended or actually occurred.
Speculative specific offense characteristics will
not be applied." The example provided by the
Sentencing Commission suggests that in the
"conspiratorial stage of planning an armed bank
robbery," the offense would not include the
possibility of "obtaining a large sum of money,"
because that "would be speculative." Id.
The analogy between this crime and the
hypothetical bank robbery in the example
overlooks some key distinctions. In the example,
the culprits were apprehended in the
"conspiratorial stage of planning" in which the
attendant circumstances of the proposed crime,
such as the amount of money or other valuables in
the vault, may not even be known. The
conspirators’ ability to carry out the crime, or
even to carry away many bags of money, might be
limited by the number of henchmen that could be
rounded up for the heist. They may not have a
target selected or know whether they intend to
steal cash from the vault or valuables from safe
deposit boxes. To rely on this type of unanswered
question seems too speculative for purposes of
enhancing the sentences.
The district court cited United States v.
Vasquez, 791 F. Supp. 348, 352-54 (E.D.N.Y. 1992),
as an example of impermissible speculation. In
that case, the defendants were arrested en route
to a planned robbery of an armored car in which
they hoped to get $5,000,000. The court refused
to enhance the sentence to reflect the $5,000,000
value because "there was a failure of proof as to
the amount the conspirators ’intended’ to steal
. . . since there was no evidence of what was or
would be in the van." Id. at 353. This aptly
illustrates the degree of uncertainty that we
believe would run afoul of the Guidelines. To the
defendants’ knowledge, the armored car may have
been empty, it may have contained a hundred
lottery tickets or $5,000,000. Without some proof
both of their intent and the attendant
circumstances of the crime, the $5,000,000 is
speculation, not reasonable certainty.
The concept of reasonable certainty does not
permit speculation, but it also does not require
absolute certainty. The Guidelines, while
cautioning strongly against speculative findings,
emphasize the need to consider intended conduct
as well as completed conduct. In the same
application note quoted by the defendants, the
Guidelines remind the court that "[i]n an
attempted theft, the value of the items that the
defendant attempted to steal would be
considered." U.S.S.G. sec. 2X1.1 application note
2. Furthermore, the firearms guideline tells the
court to "count only those firearms that were
unlawfully sought to be obtained." U.S.S.G. sec.
2K2.1 application note 9. Without speculating,
the sentencing court may accept evidence that a
defendant intended a specific target of a crime
and then assess the actual value of that target,
such as a plan to steal the Mona Lisa. The court
may not assess the value of all paintings in the
Louvre if there was no evidence that the burglar
intended to take any particular painting or even
knew what the museum contained. The latter is
speculation supported only by wish and chance,
while the former is a reasoned attempt to assess
the value of the burglar’s target.
The trial court found that the evidence showed
the seven defendants specifically intended to
steal fifty or more firearms. The Guidelines
require that the evidence of intended conduct be
"established with reasonable certainty," a
standard that does not invite mathematical
precision. U.S.S.G. sec. 2X1.1(a). Where we find
support in the record for the district court’s
finding, we cannot say that it is clearly
erroneous. See United States v. Maggi, 44 F.3d
478, 484 (7th Cir. 1995).
Here, there was evidence of the defendants’
intent, their ability to carry out the crime and
the contents of the store. The conspiracy
included seven men who had two trucks and
burglary tools, along with access to shopping
carts and carrying bags. According to their own
testimony, they planned to steal enough guns so
that they could keep two each and sell some
others with the ultimate intention of arming the
members of their street gang. Fetla’s manager,
Brian Lobody, testified that the store contained
more than 1,000 guns, including hundreds of
handguns that could be carried easily to the
trucks. Most telling, in his statement following
arrest, Szakacs told federal agents:
[W]e were supposed to . . . back the van up [to
the loading docking] you know, turn the lights
off, . . . open up the back door and just start
loading. You know how they have the big cases of
the handguns? . . . We are supposed to carry
those out and put them into the van. And we were
suppose to load all that . . . whatever bullets
we can get, clips we can get, shotguns, rifles,
we are supposed to grab everything that we could.
To qualify for the six-level enhancement, the
seven defendants needed to carry only an armload
of guns each, yet their plan was to grab
everything that they could lay their hands on and
load up the trucks. This is more than the
evidence needed to establish with reasonable
certainty that the conspiracy involved fifty or
more firearms. The district court’s enhancement
in this regard is correct.
B. Use of a Firearm
1. The Stolen Firearms
The defendants’ sentences also were enhanced
four levels under sec. 2K2.1 because "the
defendant used or possessed any firearm or
ammunition in connection with another felony
offense," the other felony offense being the
state law crime of conspiracy to commit burglary.
U.S.S.G. sec. 2K2.1. The government contends that
any federal offense (in this case, conspiracy to
steal firearms from a licensed dealer) which
includes conduct that can be characterized as a
state law offense (here, conspiracy to commit
burglary) qualifies for the enhancement. What
makes this case difficult is that the state law
offense and the federal offense were essentially
the same crime. Burglary is the entering of a
building with the intent to commit a felony, see
Hossman v. State, 482 N.E.2d 1150, 1154 (Ind.
App. 1985), and the felony here of course was the
theft of firearms. This presents an issue of
first impression for this Court: Does a state law
crime that occurs simultaneously with a federal
weapons crime qualify as "another felony offense"
for purposes of the enhancement under sec.
2K2.1(b)(5)?
Although new to us, the issue has been
addressed by the Fifth and Sixth Circuits with
divided results. See United States v. McDonald,
165 F.3d 1032, 1036-37 (6th Cir. 1999); United
States v. Sanders, 162 F.3d 396, 399-402 (6th
Cir. 1998); United States v. Armstead, 114 F.3d
504, 511-13 (5th Cir. 1997). In Armstead, the
first case to be decided, the defendants broke
into a pawn shop that was licensed to sell
firearms and stole nineteen guns. The defendants
pleaded guilty to stealing firearms from a
licensed dealer, but were also charged by the
State of Texas with burglary. The sentencing
judge applied the four-level enhancement for
possessing a firearm in connection with another
felony based on the state burglary charge.
The Fifth Circuit cited two reasons to affirm.
First, it pointed out that the phrase "used or
possessed the firearm . . . in connection with a
crime of violence" in a different Guidelines
provision, see U.S.S.G. sec. 4B1.4(b)(3)(A),
permits an enhancement when a firearm is used in
a contemporaneous crime of violence. See
Armstead, 114 F.3d at 512-13 (citing United
States v. Guerrero, 5 F.3d 868 (5th Cir. 1993)).
Guerrero, however, does not shed much light here.
In Guerrero, the defendant was charged with
possessing a stolen firearm and possession of a
firearm by a felon based on weapons the defendant
procured during a burglary, which is a crime of
violence. 5 F.3d at 869. The court held that "’in
connection with’ does not necessarily exclude
possessing the firearms as fruits of the crime
the possessor is contemporaneously committing."
Id. at 872.
We do not necessarily disagree with that
reasoning, but the issue for us is what
constitutes another crime, not whether the
firearm offense was connected to the state law
crime. The outcome in Guerrero might be very
different if sec. 4B1.4(b)(3)(A) read "in
connection with another crime of violence," in
which case counting the instant crime of violence
again as a state law crime would be duplicative.
We are concerned with the impermissible double
counting of offense characteristics by the
concurrent description of them as state law
crimes, a danger not raised by guidelines that
direct the court to look at "connected" crimes.
Therefore, we find this rationale to be
unpersuasive.
The second reason given by the Armstead court
was that "[n]othing in the Guidelines suggests
that contemporaneous crimes cannot be considered
when enhancing a sentence." Armstead, 114 F.3d at
513. To the extent "contemporaneous" means
"existing or occurring during the same time," we
agree. Webster’s III New International Dictionary
491 (3d ed. 1986). In fact, we have regularly
upheld sentences for multiple crimes that
occurred during the same period of time. See,
e.g., United States v. Payton, 198 F.3d 980 (7th
Cir. 1999) (upholding sentence enhancement under
sec. 2K2.1(b)(5) for contemporaneous crimes of
being a felon in possession of a firearm and
possession of a shotgun with intent to use it in
a robbery). Contemporaneous cannot mean the same
crime, however, without denuding the word
"another" of all meaning. Something in the
Guidelines--the word "another"--does suggest that
same offense conduct cannot be characterized as
both a federal crime and a state crime, and in
that respect we disagree with the Armstead court.
The Fifth Circuit expressed an additional policy
justification for its holding. Amendment 374 to
the Guidelines says that the "firearms statutes
often are used as a device to enable the federal
court to exercise jurisdiction over offenses that
otherwise could be prosecuted only under state
law." Id. at 513 (quoting U.S.S.G. app. C.,
amend. 374). This purportedly "reflects the
concern for public safety which the Guidelines
sought to achieve." Id. It is unclear how a
jurisdictional hook reflects a concern for public
safety more than any other statute does, but
regardless, that insight does not support the
conclusion that both the jurisdictional tool and
the state law offense were intended to be
punished federally. More naturally, the hook
allows federal prosecutors the justification to
reach criminal conduct that otherwise would be
solely the responsibility of state prosecutors.
It does not necessarily require the double
counting of offense conduct as both federal and
state crimes given the use of the word "another"
in the guideline.
Since Armstead, the Sixth Circuit has twice
addressed this issue and expressly disagreed with
the Fifth Circuit’s holding. In Sanders, the
defendant pleaded guilty to being a convicted
felon in possession of firearms and knowingly
transporting stolen firearms. Sanders, 162 F.3d
at 397. Sanders and two co-defendants burglarized
a pawn shop and stole seventy-three firearms. His
sentence was enhanced four levels pursuant to
sec. 2K2.1(b)(5) because the burglary could have
been charged as a state law offense. Id. at 400.
The Sixth Circuit reversed, holding that the
"Guidelines do not authorize a major four-level
increase under the instant facts simply because
the state could also have brought a prosecution
for the one and the same burglary." Id.
The court offered three reasons for rejecting
Armstead. First, reading the guideline to allow
a state law offense based on the exact same
offense conduct to count as a "another felony
offense" renders "the word ’another’ . . .
superfluous, and of no significance to the
application of that provision." Id. Since almost
all federal crimes can also be characterized as
state crimes, the government’s reading of
’another felony offense’ would permit the
"automatic application of this significant 4
level Guideline enhancement." Id.
Second, the Sixth Circuit looked to Application
Note 18 to sec. 2K2.1(b)(5). That provision
states, "’another felony offense’ and ’another
offense’ refer to offenses other than explosive
or firearms possession or trafficking offenses."
U.S.S.G. sec. 2K2.1(b)(5) application note 18.
The probative value of this note is equivocal.
Burglary is not necessarily a "firearms
possession or trafficking offense;" burglary is
the breaking into and entering a building to
commit a felony. However, the felony in this
burglary was the theft of weapons, which arguably
makes the burglary a "possession or trafficking
offense" in the general sense that the note uses
the phrase. The note refers to "possession and
trafficking offenses" and not to specific
statutory provisions, which suggests a level of
generality in the phrase to indicate that
breaking into and entering a building to steal
weapons would be one of the "possession and
trafficking offenses" excluded from "another
felony offense."
Third, the Guidelines differentiate between
base-offense levels and specific-offense
characteristics, and courts should not adjust a
sentence upward based on factors already
reflected in the base-offense level. Since the
Guidelines already account for the theft
behavior, see U.S.S.G. sec. 2K2.1 (covering
"unlawful receipt, possession, or transportation
of firearms"), the Sixth Circuit "declines to
adjust Defendant’s offense level upward by four
levels for contemporaneous conduct already
included in the Guideline calculation." Id. at
402. Because almost every weapons crime could
also be charged as a state law offense,
Armstead’s reading of the guideline would lead to
a routine four-level enhancement and defeat the
purpose behind the structure to the Guidelines.
See also McDonald, 165 F.3d at 1037 (holding that
an enhancement for stealing firearms during the
burglary of a pawn shop would constitute double
counting and "would thus be contrary to the
guideline’s underlying purpose.").
The Sixth Circuit did not close the door on all
enhancements based on purported state law crimes,
only crimes that truly constituted double
counting. The court held that state law crimes
that occur contemporaneously to federal weapons
crimes could support enhancements under sec.
2K2.1(b)(5) if there was "a finding of a
separation of time between the offense of
conviction and the other felony offense, or a
distinction of conduct between that occurring in
the offense of conviction and the other felony
offense." Sanders, 162 F.3d at 400. Thus, a
defendant who steals a firearm and then engages
in a shootout with police, robs the liquor store
down the street or files the serial number off
the firearm, could receive an enhancement for
"another felony" because the conduct violates
either a state or federal law.
In fact, this has been the way this Court has
applied sec. 2K2.1(b)(5). All six published cases
applying the phrase "another felony offense" have
involved crimes separated in time or by a
"distinction of conduct." See Payton, 1999 WL
1101622, at *2 (upholding enhancement for
possession of shotgun and intent to use the
weapon in a robbery); United States v. Santoro,
159 F.3d 318, 319-20 (7th Cir. 1998) (possession
of a firearm by a felon and transferring a
firearm with knowledge it would be used in drug
trafficking); United States v. Patterson, 97 F.3d
192, 195 (7th Cir. 1996) (possession of a firearm
by a fugitive and drug trafficking); United
States v. Gilmore, 60 F.3d 392, 394 (7th Cir.
1995) (possession of a firearm by a felon with
knowledge that they would be used to commit
"another felony offense"); United States v.
Messino, 55 F.3d 1241, 1255-56 (7th Cir. 1995)
(possession of a firearm by a felon and
unlawfully transferring firearms with knowledge
that they would be used to commit crimes); United
States v. Rogers, 46 F.3d 31, 32 (7th Cir. 1995)
(possession of a firearm by a felon with reason
to believe it would be used in another felony
offense). While these cases did not involve
enhancements for state law crimes that were part
and parcel of the federal weapons offense, as the
case at bar does, they do illustrate a much less
strained interpretation of sec. 2K2.1(b)(5) than
that proposed by the government. Our reading of
this section today merely reinforces the
straightforward application of the enhancement
that has been used in this circuit for several
years and rejects the approach represented by the
Armstead court./2
The government proposes an elements-based test
that would allow the application of the upward
adjustment for every federal weapons violation
that overlaps with a state law crime so long as
the state crime has at least one element
different from the federal crime. Burglary, which
requires the illegal entry into a building, could
be used to enhance theft of firearms, which does
not require illegal entry, according to this
position. The government does not cite any
authority supporting the adoption of this test,
but simply relies on Armstead. However, even
Armstead did not propose an elements test. While
we do not believe this to be an irrational
approach, the language of the Guidelines does not
compel this reading. More importantly, this test
fails to address the key weakness noted by the
Sanders court. Because nearly every federal
weapons offense could be simultaneously charged
as a state crime, allowing the state crime to
count as "another felony offense" renders that
term superfluous; it could just as easily read
"any felony offense." We do not lightly render a
statute’s language a dead letter, and we decline
to do so today.
2. The Test-Fired Firearm
The probation office and the district court
offered an alternate reading of sec. 2K2.1(b)(5),
which counts the firearm that the defendants
test-fired on the way to the rendezvous, rather
than the weapons they conspired to steal, as the
weapon used "in connection with another felony."
However, the government rejected this
interpretation, and the government argued (as
discussed in the preceding section) that only the
weapons that were the object of the firearms
conspiracy count toward the sec. 2K2.1(b)(5)
adjustment. We accept the government’s position,
and following the reasoning in Sanders, we will
vacate the four-level sentence enhancement for
use of a weapon in another felony offense.
C. Noble’s Sentencing
Defendant Noble, the supposed "governor" of this
Gangster Disciples troop, appeals the use of
hearsay testimony at his sentencing hearing.
Specifically, he challenges the district court’s
decision to permit a federal agent to testify
based on her knowledge of other crimes in which
Noble had been involved. The agent gleaned much
of this information from written summaries of
police investigations and interviews with co-
defendants who were not present in court. Noble
did not object to this testimony at sentencing,
so we review only for plain error. See United
States v. Olano, 507 U.S. 725, 731 (1993). The
Supreme Court has noted that plain errors must be
both plain and errant, see id. at 731, but more
than that, they must affect substantial rights,
see Fed. R. Crim. P. Rule 52(b), and "seriously
affect the fairness, integrity or public
reputation of judicial proceedings." Olano, 507
U.S. at 732.
At the sentencing hearing, Bureau of Alcohol,
Tobacco and Firearms Special Agent Cynthia
Carroll testified about Noble’s participation in
another theft of firearms from an Indiana
firearms dealer, this one in Merrillville, a town
near Schererville. Carroll had personally
interviewed the Merrillville store’s licensee and
reviewed the co-defendants’ statements, which
were against their own interest, and police
reports regarding that crime. Noble was given
advance notice that the government intended to
use this hearsay evidence and a full opportunity
to cross-examine Carroll, which we have indicated
is important to promoting the fairness of the
proceeding. See United States v. Johnson, 997
F.2d 248, 254 (7th Cir. 1993).
The admission of the particular hearsay evidence
at Noble’s sentencing was neither errant nor
seriously affected the fairness of the proceeding
since all indications were that the evidence was
reliable and corroborated. The Sentencing
Guidelines expressly permit the use of hearsay
evidence that has "sufficient indicia of
reliability to support its probable accuracy."
U.S.S.G. sec. 6A1.3; see United States v. Burke,
148 F.3d 832, 836 (7th Cir. 1998); United States
v. Anaya, 32 F.3d 308, 311 (7th Cir. 1994);
United States v. Morales, 994 F.3d 386, 389 (7th
Cir. 1993). We have previously allowed written
summaries of an agent’s interviews with witnesses
and the defendant to be used at sentencing, see
United States v. Gerstein, 104 F.3d 973, 978 (7th
Cir. 1997), as well as an agent’s testimony based
on police reports and other forms of out-of-court
testimony. See United States v. Francis, 39 F.3d
803, 806, 809-11 (7th Cir. 1994).
Statements against penal interest have long been
considered reliable enough for use at trial under
the Federal Rules of Evidence, see Fed. R. Evid.
804(b)(3), so we cannot say that they are too
unreliable for use at sentencing when the Federal
Rules do not apply. Furthermore, the statements
do not stand alone; they are corroborated by
police reports and Carroll’s own interview with
the licensee of the Merrillville store. Finally,
there has been no indication nor even an
assertion at sentencing or on appeal that the
hearsay was in any way inaccurate or misleading.
Therefore, it was not plain error to allow
Carroll to testify based on this information.
Noble also argues that enhancing his sentence
based on three different specific offense
elements constituted "impermissible double
counting." Noble received sentence enhancements
pursuant to U.S.S.G. sec.sec. 2K2.1(b)(1), 2K2.1
(b)(4) and 2K2.1(b)(5). This section requires
enhancements for intending to steal fifty or more
firearms, possessing firearms with stolen serial
numbers and using a firearm in connection with
another offense, respectively. As the government
correctly notes, the Guidelines indicate that
enhancements for specific offense characteristics
"are cumulative (added together) unless the
guideline specifies that only the greater (or
greatest) is to be used." U.S.S.G. sec. 1B1.2
application note 4. Nothing in sec. 2K2.1
suggests that only the greatest of the three
enhancements should be used, and this court can
see no reason why that would be so. The facts
supporting each adjustment are not the same, and
impermissible double counting exists only when
two enhancements are premised on "identical
facts." See United States v. Haines, 32 F.3d 290,
293 (7th Cir. 1994). Here the facts relate to
Noble’s intent to steal a certain number of
firearms, possession of (different) firearms that
had stolen serial numbers and using a (still
different) weapon in connection with the offense.
This reflects three different descriptions of
different offense conduct, not a different
description of the same offense conduct.
III. Conclusion
For the foregoing reasons, we affirm the upward
adjustment of the defendants’ sentences for
crimes involving fifty or more weapons, but
vacate the four-level increase for using a weapon
in connection with another felony offense. The
cases are remanded to the district court for re-
sentencing consistent with this opinion.
/1 Christopher Hicks and James Blanton were indicted
with the five appellants and pleaded guilty, but
did not appeal their sentences.
/2 The Guidelines grouping rules, see U.S.S.G. sec.
3D1.2, provide additional aid in determining the
Sentencing Commission’s definition of "another
offense." Offenses that have the same harm and
victim are supposed to be grouped on the theory
that this kind of overlap should not result in
double counting for purposes of punishment. See
United States v. Dawson, 1 F.3d 457, 461-64 (7th
Cir. 1993); United States v. Bruder, 945 F.2d
167, 170-71 (7th Cir. 1991). This implies that an
offense that would be grouped (if all were under
federal law) cannot be treated as "another
offense" with a four-level increase. The state
law burglary offense would undoubtedly be grouped
under the criteria of sec. 3D1.2, strongly
suggesting that it should not be counted as
another offense for purposes of sec. 2K2.1.