United States v. Juan Long , 563 F. App'x 498 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2557
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Juan L. Long
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: March 13, 2014
Filed: April 28, 2014
[Unpublished]
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Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
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PER CURIAM.
On June 3, 2012, Juan L. Long crashed his automobile into another vehicle.
Kansas City, Missouri police officers responded to the accident and discovered that
Long was intoxicated. An officer arrested Long for driving while intoxicated and,
while conducting a search incident to arrest, found a .25-caliber semiautomatic
firearm in Long’s pants pocket. Having been convicted previously of a felony for
domestic assault, Long pled guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). The district court1 sentenced Long to 30 months’
imprisonment. Before sentencing, the Government objected to the presentence
investigation report, contending that a four-level enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B) should apply because of Long’s contemporaneous unlawful use of
a weapon in violation of Missouri law. The district court applied the enhancement,
which Long now appeals. For the reasons set forth below, we affirm.
We review de novo the district court’s interpretation and application of the
sentencing guidelines. United States v. Jackson, 633 F.3d 703, 705 (8th Cir. 2011).
Section 2K2.1(b)(6)(B) requires a four-level enhancement if the defendant “used or
possessed any firearm or ammunition in connection with another felony offense.” Id.“Another felony offense” means “any Federal, state, or local offense, other than the
explosive or firearms possession or trafficking offense, punishable by imprisonment
for a term exceeding one year, regardless of whether a criminal charge was brought,
or a conviction obtained.” Id. cmt. (n. 14(C)). “In connection with” means that the
enhancement applies if “the firearm or ammunition facilitated, or had the potential of
facilitating, another felony offense.” Id. cmt. (n. 14(A)).
A person commits the Missouri offense of unlawful use of a weapon if he
knowingly carries concealed upon or about his person a firearm without a permit or
has a firearm readily capable of lethal use on his person while he is intoxicated. Mo.
Rev. Stat. §§ 571.030.1(1) & (5), 571.030.4. The offense is a felony, id. § 571.030.8,
and is punishable by up to four years’ imprisonment, id. § 558.011.1(4). Long does
not dispute the district court’s conclusion that he violated this Missouri statute.
Instead, he offers three legal arguments that his conduct does not support application
of § 2K2.1(b)(6)(B). We reject them each in turn.
1
The Honorable Gregory Kays, Chief Judge, United States District Court for
the Western District of Missouri.
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First, Long argues that the Missouri offense of unlawful use of a weapon is not
“another felony offense” within the meaning of § 2K2.1(b)(6)(B). He asserts that the
exclusionary clause in application note 14(C)—i.e., “other than the explosive or
firearms possession or trafficking offense”—bars application of the enhancement to
his Missouri offense. In other words, he contends that the enhancement does not
apply because the Missouri felony also is a firearms possession offense. We rejected
this argument in Jackson. “The phrase ‘the . . . firearms possession . . . offense’ in
application note 14(C) most plainly refers to the underlying offense of conviction—in
[this] case, possession of a firearm by a felon.” Id. at 706 (first and second alterations
in original). Therefore, we concluded that “the plain language of application note
14(C) excludes only the underlying firearms possession offense of conviction from
the definition of ‘another felony offense.’” Id. Because the Missouri offense is not
Long’s underlying offense of conviction, the enhancement properly applies to the
Missouri offense.
Second, Long contends that application of § 2K2.1(b)(6)(B) constitutes
impermissible double counting. We rejected this argument in Jackson as well. 633
F.3d at 708. “[D]ouble counting occurs 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 707(quoting United States v. Chapman, 614 F.3d 810, 812 (8th Cir. 2010)). We
concluded that because the “Missouri unlawful use of a weapon offense found by the
district court here is distinct from the underlying federal felon-in-possession offense,”
Jackson’s double-counting argument necessarily failed. So too does Long’s
argument. The Missouri offense requires a showing that Long carried a concealed
firearm without a permit or that he carried a firearm while intoxicated. Long’s
underlying federal felon-in-possession offense requires neither concealment nor
intoxication. Conversely, his federal offense requires that Long was a previously
convicted felon, whereas the Missouri offense does not. Accordingly, while the
Missouri and federal offenses are both firearm-possession offenses, they account for
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different kinds of harm. The Missouri statute addresses the harms inherent in the
concealed carrying of firearms by individuals without permits as well as the carrying
of firearms by intoxicated individuals. Section 922(g)(1), by contrast, is concerned
with the harms presented by a convicted felon possessing firearms and ammunition.
As in Jackson, we conclude that application of § 2K2.1(b)(6)(B) “increases [Long’s]
punishment on account of conduct not accounted for by the base offense level found
in § 2K2.1(a).” Id. at 708. Therefore, no impermissible double counting has
occurred.
Finally, Long asserts that the district court should not have applied the
enhancement because his possession of the firearm did not “facilitate” the Missouri
offense so as to satisfy § 2K2.1(b)(6)(B)’s “in connection with” requirement. We
disagree for two reasons. First, prior panels of this court have held that defendants
violating § 922(g)(1) used or possessed a firearm “in connection with” a violation of
§ 571.030. See Jackson, 633 F.3d at 705-07; United States v. Moore, 424 F. App’x
585, 586 (8th Cir. 2011). Second, we observe that “facilitate” means to “promote,
help forward (an action, result, etc.).” The New Shorter Oxford English Dictionary
903 (4th ed. 1993); see also United States v. Marrufo, 661 F.3d 1204, 1207 (10th Cir.
2011) (“The plain and commonly understood meaning of ‘facilitate’ is to make
easier.”); Black’s Law Dictionary 627 (8th ed. 2004) (Facilitate: “To make the
commission of a crime easier.”). Of course, without possessing the firearm, it was
impossible for Long to violate the Missouri statute, and therefore, it is axiomatic that
Long’s possession of the firearm facilitated—i.e., promoted, helped forward, made
easier—his violation of Missouri law. Accordingly, the district court did not err in
concluding that Long possessed a firearm in connection with his violation of the
Missouri statute.
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For these reasons, we affirm Long’s sentence.2
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2
Long does not challenge the substantive reasonableness of his sentence. Thus,
we do not address that issue. See United States v. Brown, 550 F.3d 724, 729 n. 4 (8th
Cir. 2008).
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