United States v. Bryan Burnett

United States Court of Appeals
For the Eighth Circuit
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No. 18-1989
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Bryan Lamon Burnett
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: April 15, 2019
Filed: June 14, 2019
[Unpublished]
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Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
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PER CURIAM.
Appellant Bryan Burnett pled guilty to one count of being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1
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The Honorable John A. Jarvey, Chief Judge, United States District Court for
the Southern District of Iowa.
sentenced Burnett to 84 months imprisonment. Burnett appeals, arguing that, in
calculating the Sentencing Guidelines range, the district court erred in imposing a
four-level offense-level enhancement pursuant to United States Sentencing
Guidelines, Guidelines Manual § 2K2.1(b)(6)(B) for possession of the firearm in
connection with another felony offense. Having jurisdiction under 28 U.S.C. § 1291,
we affirm.
Burnett’s conviction arises from his conduct following a car accident in
Davenport, Iowa. Officers responded to a report of an accident and discovered a
revolver in the nearby bushes. Burnett, the driver of one of the cars involved in the
accident, later admitted to possessing the firearm. He was subsequently charged with
and pled guilty to being a felon in possession of a firearm.
At sentencing, the district court increased the base offense level by four levels,
pursuant to § 2K2.1(b)(6)(B). Under this section, “[i]f the defendant . . . used or
possessed any firearm . . . in connection with another felony offense; or possessed or
transferred any firearm . . . with knowledge, intent, or reason to believe that it would
be used or possessed in connection with another felony offense,” the offense level
increases four levels. The Guidelines define “another felony offense” as “any federal,
state, or local offense . . . punishable by imprisonment for a term exceeding one year,
regardless of whether a criminal charge was brought, or a conviction obtained.”
USSG § 2K2.1, comment. (n.14(C)). The district court concluded that Burnett’s
conduct in possessing the firearm also violated Iowa Code § 724.4(1), which
provides, “a person who goes armed with a dangerous weapon concealed on or about
the person, or . . . any loaded firearm of any kind, whether concealed or not, or who
knowingly carries or transports in a vehicle a pistol or revolver, commits an
aggravated misdemeanor.” The district court therefore determined that Burnett
possessed the firearm “in connection with another felony offense” and applied the
four-level enhancement.
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“We review the district court’s construction and application of the sentencing
guidelines de novo, and we review its factual findings regarding enhancements for
clear error.” United States v. Houston, 920 F.3d 1168, 1174 (8th Cir. 2019). Burnett
asserts that the application of the enhancement was in error because the “other felony
offense,” carrying weapons in violation of Iowa Code § 724.4(1), was unavoidably
based on the same conduct as the underlying felon-in-possession-of-a-firearm charge
and constituted impermissible double counting. United States v. Chapman, 614 F.3d
810, 812 (8th Cir. 2010) (“Generally speaking, [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[.]” (first alteration in original) (internal quotation marks omitted)).
But, as Burnett acknowledges, in United States v. Walker, 771 F.3d 449 (8th Cir.
2014), we rejected the same argument that the § 2K2.1(b)(6)(B) enhancement could
not apply where the other felony offense, carrying weapons under Iowa law, was
based on the same conduct as the charged offense:
[The defendant] was not doomed to automatically commit the additional
felony when he violated 18 U.S.C. § 922(g) by possessing a firearm as
a felon. Iowa Code § 724.4(1), unlike 18 U.S.C. § 922(g), requires
proof that the defendant went armed “with a dangerous weapon
concealed on or about the person,” or went armed with a handgun
“within the limits of any city,” or “knowingly carrie[d] or transport[ed]
[a handgun] in a vehicle.” Thus, § 724.4(1) does not fall within the
narrow Note 14(C) exclusion for “the . . . firearms possession . . .
offense,” and applying the four-level enhancement in U.S.S.G.
§ 2K2.1(b)(6) does not implicate the “double counting” concerns
underlying our decision in [United States v.] Lindquist, 421 F.3d [751],
756 [(8th Cir. 2005)].
Id. at 452-53 (second through sixth alterations in original) (citations omitted).
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We are bound by this decision of a prior panel of our Court. See Mader v. United
States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc). Thus, we reject Burnett’s
argument that the district court erroneously applied the four-level enhancement.
Accordingly, we affirm.
GRASZ, Circuit Judge, concurring.
I concur in the court’s opinion as this appeal is governed by United States v.
Walker, 771 F.3d 449 (8th Cir. 2014). I continue to believe Walker was wrongly
decided for the reasons stated in my concurrence in United States v. Stuckey, 729 F.
App’x 494, 495-96 (8th Cir. 2018) (unpublished), as the enhancement constitutes
impermissible double-counting.
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