United States v. Ryan Daniel Lee ( 2003 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-1313
    ___________
    United States of America,              *
    *
    Appellee,                  *
    * Appeal from the United States
    v.                               * District Court for the
    * District of Nebraska.
    Ryan Daniel Lee,                       *
    *
    Appellant.                 *
    ___________
    Submitted: October 20, 2003
    Filed: December 8, 2003 (Corrected 12/22/03)
    ___________
    Before RILEY, BEAM, and SMITH, Circuit Judges.
    ___________
    RILEY, Circuit Judge.
    Ryan Daniel Lee (Lee) appeals his sentence for possession of an unregistered
    sawed-off shotgun in violation of 
    26 U.S.C. § 5861
    (d) (2000). The Presentence
    Report recommended a two-level enhancement pursuant to section 2K2.1(b)(3) of the
    United States Sentencing Guidelines (U.S.S.G.) for possession of a “destructive
    device,”1 and Lee filed an objection to the enhancement. The district court2
    1
    The term “destructive device” is defined in 
    26 U.S.C. § 5845
    (f). The parties
    do not dispute that the weapon possessed by Lee, an unregistered sawed-off Marlin
    Model 60G .410 caliber shotgun, meets the statutory definition of “destructive
    concluded our decision in United States v. Rohwedder, 
    243 F.3d 423
     (8th Cir. 2001),
    involving an identical challenge to a sentencing enhancement pursuant to section
    2K2.1(b)(3) (possession of a destructive device), controlled the case. The district
    court overruled Lee’s objection, and sentenced Lee to 24 months imprisonment. We
    affirm.
    Lee argues imposition of the “destructive device” enhancement constitutes
    impermissible double counting in violation of the Double Jeopardy Clause. U.S.
    Const. amend. V. Lee contends possession of a short-barreled shotgun is precisely
    the harm targeted in the “destructive device” enhancement and is fully accounted for
    in section 2K2.1(a)(5), which establishes a base offense level of 18. Lee also
    contends our earlier holding in Rohwedder is distinguishable because, unlike Lee,
    Rohwedder had a prior felony conviction. See U.S.S.G. § 2K2.1(a)(3).
    We review de novo a district court’s application of the Sentencing Guidelines,
    including the issue of double counting. United States v. Kenney, 
    283 F.3d 934
    , 936
    (8th Cir. 2002). In Rohwedder, the defendant pled guilty to being a felon in
    possession of a firearm, but denied knowing the shotgun was shortened. The district
    court found, and our court affirmed, Rohwedder knew the weapon was a sawed-off
    shotgun. Rohwedder, 
    243 F.3d at 425-26
    . At sentencing, the district court applied
    both subsections 2K2.1(a)(3) and (b)(3). By applying both subsections, Rohwedder
    argued, the district court engaged in impermissible double counting.
    On appeal, we explained “[d]ouble counting occurs when one part of the
    Guidelines is applied to increase a defendant’s punishment on account of a kind of
    device.” The district court found the shotgun was a “destructive device” within the
    meaning of 
    26 U.S.C. § 5845
    (f). We see no error in that finding.
    2
    The Honorable Thomas M. Shanahan, United States District Judge for the
    District of Nebraska.
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    harm that has already been fully accounted for by application of another part of the
    Guidelines.” 
    Id. at 426-27
     (quoting United States v. Hipenbecker, 
    115 F.3d 581
    , 583
    (8th Cir. 1997)). We further explained, where “the Sentencing Commission intended
    that result and each section concerns conceptually separate notions relating to
    sentencing,” double counting may be permissible. Id. at 427. Applying the two-part
    test in Rohwedder, we determined the Sentencing Commission intended both
    subsections 2K2.1(a)(3) and (b)(3) should be applied to defendants whose offense
    involved a destructive device, the sawed-off shotgun. Id. We also determined both
    parts are conceptually separate, with part (a) setting forth the base offense level for
    certain firearm crimes, and part (b) setting forth specific offense characteristics
    enhancing the base offense level. Id. We then explained that “[s]ubsection (b)(3)
    involves a specific definition of destructive device and applies regardless of the base
    offense level applicable to a particular defendant,” and concluded the district court
    correctly applied the sentencing enhancement. Id.
    In this case, the Sentencing Commission’s intention that both subsections
    should apply is evident in Commentary Note 11 to section 2K2.1, which explains:
    A defendant whose offense involves a destructive device receives both
    the base offense level from the subsection applicable to a firearm listed
    in 
    26 U.S.C. § 5845
    (a) (e.g., subsection . . . (a)(3) . . .), and a two-level
    enhancement under subsection (b)(3). Such devices pose a considerably
    greater risk to the public welfare than other National Firearms Act
    weapons.
    U.S.S.G. § 2K2.1, cmt. n.11.
    Our conclusion in Rohwedder that “these sections are sufficiently conceptually
    separate,” Rohwedder, 
    243 F.3d at 427
    , persuades us Lee’s sentence was properly
    enhanced pursuant to section 2K2.1(b)(3). Furthermore, our declaration in
    Rohwedder that the (b)(3) enhancement applies “regardless of the base offense level
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    applicable to a particular defendant,” 
    id.,
     defeats Lee’s attempt to distinguish the case.
    Rohwedder’s prior felony conviction earned him a higher base offense level pursuant
    to section 2K2.1(a)(3), but Rohwedder’s prior felony conviction does not otherwise
    distinguish the reasoning in Rohwedder. We therefore affirm Lee’s sentence.
    ______________________________
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