United States v. Sulif Wilkins ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-4026
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Sulif I. Wilkins
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: September 18, 2017
Filed: April 12, 2018
[Unpublished]
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Before SMITH, Chief Judge, MELLOY and GRUENDER, Circuit Judges.
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PER CURIAM.
Defendant Sulif I. Wilkins pleaded guilty to one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appeals his
sentence, raising three separate challenges to the district court’s1 application of the
United States Sentencing Guidelines. We affirm.
Wilkins’s girlfriend reported that he had assaulted her, fired shots in her
direction, and threatened to shoot her mother and siblings. Officers recovered a bullet
from the drywall of her apartment. Approximately two weeks later, officers
approached Wilkins regarding an unrelated homicide investigation. They directed
him to get on the ground. Officers reported that Wilkins reached under his shirt and
pulled what appeared to be a firearm from near his waistband. He then leaned into
the driver’s side of a vehicle and reached towards the bottom of the driver’s seat
before fleeing. Officers pursued and captured him. Officers then looked into the
vehicle and could see the handle of a firearm extending from under the driver’s seat.
Officers retrieved the firearm, identifying it as a .40-caliber semiautomatic handgun
loaded with fifteen rounds in the magazine and one in the chamber.
Wilkins was arrested and charged with one count of being a felon in possession
of a firearm and one count of possessing a stolen firearm. He pleaded guilty to the
first count, and the second count was dismissed. The district court sentenced him to
120 months’ imprisonment, the statutory maximum.
As a first point of error, Wilkins argues the district court erroneously classified
his prior Missouri conviction for second degree robbery, Missouri Revised Statutes
§ 569.030 (2006), as a “crime of violence” under U.S.S.G. § 2K2.1(a)(2). The district
court properly classified the prior conviction. See United States v. Swopes, No. 16-
1797, slip op., 2018 WL 1525825, — F.3d — (8th Cir. Mar. 29, 2018) (en banc)
(holding § 569.030 qualifies as a “violent felony” under 18 U.S.C. § 924(e)); see also
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
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United States v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011) (interpreting “crime of
violence” and “violent felony” synonymously).
As a second point of error, Wilkins argues the district court erroneously applied
a two-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(4)(A) based on a finding
that the gun at issue in the present offense was stolen. We need not address the
substance of this claim because the district court specifically noted that it would not
have changed the overall sentence even had this enhancement not applied. See
United States v. Martinez, 821 F.3d 984, 988–89 (8th Cir. 2016) (error is harmless
“where the district court specifies the resolution of a particular issue did not affect the
ultimate determination of a sentence, such as when the district court indicates it
would have alternatively imposed the same sentence even if a lower guideline range
applied” (citations omitted)).
As the third point of error, Wilkins presents a two-pronged argument
challenging the application of U.S.S.G. § 2K2.1(b)(6)(B) based on the district court’s
determination that he possessed the firearm in connection with another felony
offense. According to Wilkins, the district court’s finding was clearly erroneous, and,
in any event, application of this Guideline resulted in impermissible “double-
counting.”
The district court determined Wilkins had committed a felony under Missouri
Revised Statutes § 571.030.1(1) by carrying a concealed firearm. Unobjected-to
paragraphs of the presentence investigation report contain factual averments
establishing this violation. See United States v. Killen, 761 F.3d 945, 949 (8th Cir.
2014) (“[T]he court may accept the facts as true and rely on the unobjected-to facts
in determining whether to impose an enhancement.” (quoting United States v.
Douglas, 646 F.3d 1134, 1137 (8th Cir. 2011))). The district court’s finding was not
clearly erroneous.
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“[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.” United States
v. Chapman, 614 F.3d 810, 812 (8th Cir. 2010) (quoting United States v.
Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997)). Illegally carrying a concealed
firearm in violation of Missouri law requires the proof of different elements than the
underlying § 922(g) offense in this case. Applying U.S.S.G. § 2K2.1(b)(6)(B) based
upon the cited Missouri offense, therefore, punishes a different harm than that
accounted for in the Guideline’s base offense level for § 922(g). See United States
v. Jackson, 633 F.3d 703, 705–07 (8th Cir. 2011); see also United States v. Long, 563
F. App’x 498, 499–500 (8th Cir. 2014) (per curiam).
We affirm the judgment of the district court.
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