United States v. Trevor Kunze ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2923
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Trevor Terrance Kunze,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: September 23, 2019
Filed: December 17, 2019
[Unpublished]
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Before LOKEN, COLLOTON, and KOBES, Circuit Judges.
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PER CURIAM.
Trevor Kunze pleaded guilty to one count of unlawful possession of a firearm
as a previously convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district
court1 varied downward from the advisory guideline range of 63 to 78 months’
imprisonment, and sentenced Kunze to 50 months in prison. Kunze appeals, arguing
that the district court committed procedural error by applying a four-level increase
under the guidelines for possessing a firearm in connection with another felony
offense. Under Kunze’s calculation, the advisory guideline range would have been
41 to 51 months’ imprisonment. We conclude that there was no error and therefore
affirm.
In calculating Kunze’s advisory guideline range, the district court applied a
four-level increase under USSG § 2K2.1(b)(6)(B) on the ground that Kunze
“possessed any firearm . . . in connection with another felony offense.” The other
felony offense was “carrying weapons” in violation of Iowa Code § 724.4. That
provision proscribes going armed with a dangerous weapon concealed on or about the
person, and going armed with a pistol or revolver or any loaded firearm, whether
concealed or not, within the limits of any city. The offense is punishable by up to two
years’ imprisonment, see Iowa Code § 903.1(2), and thus qualifies as a felony within
the meaning of the guideline. USSG § 2K2.1, comment. (n.1). Because police found
Kunze carrying a loaded pistol concealed in his clothing while inside a liquor store
in Davenport, Iowa, the court found that he possessed the firearm in connection with
a violation of Iowa Code § 724.4.
Kunze complains that the increase under § 2K2.1(b)(6)(B) amounts to
impermissible double counting because he was doomed automatically to commit the
Iowa offense of carrying weapons by committing the federal felon-in-possession
offense. This argument is foreclosed by United States v. Walker, 771 F.3d 449 (8th
Cir. 2014). Walker held that § 2K2.1(b)(6)(B) was applicable under comparable
circumstances, because impermissible double counting precludes a guideline increase
1
The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
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only when the defendant could not have committed the underlying federal offense
without also violating the state statute that the district court used to support the
increase. Id. at 452-53; see United States v. Jackson, 633 F.3d 703, 707 (8th Cir.
2011). A defendant who possesses a firearm as a felon is not automatically doomed
to violate the Iowa statute on carrying weapons, because the Iowa law requires proof
that a defendant did more than merely possess a firearm. In view of Walker, the
district court properly applied the four-level increase.
The judgment of the district court is affirmed.
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