United States v. Samuel Harris

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4447
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL LAMONT HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:18-cr-00375-WO-1)
Submitted: May 29, 2020 Decided: July 31, 2020
Before GREGORY, Chief Judge, WILKINSON, Circuit Judge, and SHEDD, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS MCCLEARN LESTER DUFFY, PA, Greensboro,
North Carolina, for Appellant. Matthew G.T. Martin, United States Attorney, Anand P.
Ramaswamy, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Samuel Lamont Harris pled guilty, pursuant to a written plea agreement, to
possessing a stolen firearm, in violation of 18 U.S.C. §§ 922(j), 924(a)(2) (2018). On
appeal, Harris argues that his sentence is procedurally and substantively unreasonable
because, in calculating his Sentencing Guidelines range, the district court impermissibly
double counted by imposing two offense level enhancements based on the same underlying
conduct. We affirm.
We review a criminal sentence, “whether inside, just outside, or significantly
outside the Guidelines range,” for reasonableness “under a deferential abuse-of-discretion
standard.” Gall v. United States, 552 U.S. 38, 41 (2007); see United States v. Blue, 877
F.3d 513, 517 (4th Cir. 2017). This review requires consideration of both the procedural
and substantive reasonableness of the sentence. Gall, 552 U.S. at 51. In determining
procedural reasonableness, we examine, among other factors, whether the district court
properly calculated the defendant’s advisory Guidelines range, gave the parties an
opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)
(2018) factors, selected a sentence based on facts that were not clearly erroneous, and
sufficiently explained the selected sentence. Id. at 49-51. Only after determining that the
sentence is procedurally reasonable do we consider whether it is substantively reasonable,
“tak[ing] into account the totality of the circumstances.” Id. at 51.
In determining Harris’ Guidelines range, the district court established a base offense
level of 20 because Harris committed the offense after sustaining a felony conviction for a
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crime of violence. U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A) (2018). 1 The
court added a two-level enhancement because the firearm was stolen, USSG
§ 2K2.1(b)(4)(A); a four-level enhancement because Harris used the firearm in connection
with another felony offense, specifically, breaking and entering into a motor vehicle and
stealing the firearm in question, USSG § 2K2.1(b)(6)(B); and a three-level reduction for
acceptance of responsibility, USSG § 3E1.1, for a total offense level of 23. This offense
level, combined with Harris’ criminal history category of VI, resulted in an advisory
Guidelines range of 92 to 115 months’ imprisonment. USSG ch. 5, pt. A (sentencing
table). The court sentenced Harris to 84 months’ imprisonment.
Harris challenges the dual application of the § 2K2.1(b)(4)(A) enhancement because
the firearm was stolen and the § 2K2.1(b)(6)(B) enhancement for stealing the firearm,
arguing that he essentially was punished twice for the same conduct. We first note that,
individually, the enhancements were applied properly. Although Harris was convicted of
possessing a stolen firearm, the § 2K2.1(b)(4)(A) enhancement because the firearm was
stolen was proper because Harris’ base offense level was determined under
§ 2K2.1(a)(4)(A), which takes into account only that Harris committed a prohibited
transaction involving a firearm after sustaining a felony conviction for a crime of violence
or a controlled substance offense. Accordingly, Harris’ Guidelines range did not otherwise
account for the firearm being stolen. See USSG § 2K2.1 cmt. n.8(A) (prohibiting
§ 2K2.1(b)(4)(A) enhancement for § 922(j) conviction only when base offense level is
1
Harris has a prior conviction for carrying a firearm during a drug trafficking crime.
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determined under § 2K2.1(a)(7)). The § 2K2.1(b)(6)(B) enhancement also was proper
because Harris stole the firearm from an unlocked vehicle the morning of his arrest, and
the Guidelines provide that the enhancement applies “in a case in which a defendant who,
during the course of a burglary, finds and takes a firearm, even if the defendant did not
engage in any other conduct with that firearm during the course of the burglary.” USSG
§ 2K2.1 cmt. n.14(B).
Harris’ primary claim, however, is not that the individual enhancements were
unreasonable but that applying the enhancements together constituted impermissible
double counting. “Double counting occurs when a provision of the Guidelines is applied
to increase punishment on the basis of a consideration that has been accounted for by
application of another Guideline provision or by application of a statute.” United States v.
Dowell, 771 F.3d 162, 170 (4th Cir. 2014) (internal quotation marks omitted). “[T]here is
a presumption that double counting is proper where not expressly prohibited by the
[G]uidelines.” United States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010). The fact that
two provisions cover the same conduct “is not a sufficient basis to find impermissible
double-counting.” Dowell, 771 F.3d at 170.
We conclude that, here, the district court did not err. The Guidelines do not
expressly forbid the application of both enhancements, and there is nothing in the record
to overcome the presumption that double counting is proper in this instance. See United
States v. Schaal, 340 F.3d 196, 199 (4th Cir. 2003). Moreover, as we have explained,
applying both enhancements is permissible because they are “conceptually separate, as
evidenced by the fact that either can apply in the absence of the other.” Id.; see also United
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States v. Brake, 904 F.3d 97, 100, 102 (1st Cir.) (“[E]ven where they grow from the same
factual root, [the § 2K2.1(b)(4)(A) and § 2K2.1(b)(6)(B)] enhancements bear upon two
separate sentencing considerations” (brackets and internal quotation marks omitted)), cert.
denied, 139 S. Ct. 577 (2018). 2
Harris also asks this court to review the substantive reasonableness of his sentence.
However, he presents no evidence to rebut the presumption of substantive reasonableness,
and we discern none. See United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014)
(“Any sentence that is within or below a properly calculated Guidelines range is
presumptively [substantively] reasonable.”).
We therefore affirm the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
2
Despite Harris’ arguments to the contrary, Rehaif v. United States, 139 S. Ct. 2191(2019), and its progeny do not impact our analysis. Rehaif reaffirmed the precedent that
defendants are required “to possess a culpable mental state regarding each of the statutory
elements that criminalize otherwise innocent conduct.” 139 S. Ct. at 2195 (emphasis added
and internal quotation marks omitted). This principle does not apply to sentence
enhancements, which are imposed only after the defendant has been convicted of unlawful
conduct. See United States v. Taylor, 659 F.3d 339, 344 (4th Cir. 2011) (upholding lack
of scienter requirement for USSG § 2K2.1(b)(4) and noting that “[i]t is not unusual to
punish individuals for the unintended consequences of their unlawful acts” (internal
quotation marks omitted)). Finally, we conclude that the multiplicity doctrine does not
affect our analysis of the application of the § 2K2.1(b) enhancements.
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