United States Court of Appeals For the First Circuit

No. 18-1386

UNITED STATES,

Appellee,

v.

Travis J. Stinson,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Howard, Chief Judge, Thompson and Barron, Circuit Judges.

Elizabeth A. Billowitz, on brief for Appellant Renée M. Bunker, Assistant U.S. Attorney, Appellate Chief, and Halsey B. Frank, United States Attorney, on brief for Appellee

October 23, 2020 HOWARD, Chief Judge. Travis Stinson appeals the length

of his sentence for firearms-related convictions, claiming that

the district court improperly applied an excess of sentencing

enhancements to a common set of facts. We affirm the sentence.

Background

On July 21, 2017, Stinson pled guilty to one count of

aiding and abetting the theft of sixteen firearms from a licensed

firearms dealer, in violation of

, 922(u); and one

count of possession of a firearm by a felon, in violation of

(g)(1). Because Stinson pled guilty, we "draw the

facts from the change-of-plea colloquy, the uncontested portions

of the presentence investigation report [ ], and the transcript of

the disposition hearing." United States v. Heindenstrom,

(1st Cir. 2019) (quoting United States v. Narváez-Soto,

(1st Cir. 2014)).

On October 12, 2016, Stinson was involved in

burglarizing and stealing sixteen firearms from JG Pawn Shop in

Bangor, Maine. On the day of the burglary, Stinson recruited two

others to assist him in the crimes, promising to pay one of them

in heroin. That night, the trio drove to the area of the pawnshop,

and the accomplice to whom Stinson had promised the drugs broke in

and committed the thefts. After the thefts, the trio used heroin

together and twice changed vehicles. Stinson then drove with his

two accomplices "to New Hampshire and Massachusetts, where the

- 2 - firearms were traded for drugs." As promised, Stinson gave the

drugs to the accomplice who had burglarized the pawnshop. That

accomplice then gave drugs to the other accomplice.

Two days later, Maine authorities arrested and detained

Stinson on related charges. Several months later, while Stinson

was still in state custody, he appeared in federal district court

and entered a guilty plea to an information charging the two

federal firearms counts. Sentencing was scheduled, and, in due

course, a probation and pretrial services officer prepared a

presentence investigation report (PSR).

The PSR proceeded through several common steps under the

United States Sentencing Guidelines -- only one of which is

challenged on appeal -- first setting a base offense level and

then applying a number of enhancements to determine an adjusted

offense level, then recommending a reduction for acceptance of

responsibility to arrive at a total offense level of 27. Stinson's

criminal history score established a criminal history category of

VI.

Relevant to this appeal are two sentencing enhancements

from the guidelines. One of the enhancements resulted in a four-

level increase in the adjusted offense level for trafficking

firearms. See U.S.S.G. §2K2.1(b)(5). The other enhancement

applied by the PSR was an "other-felony-offense" enhancement,

which resulted in a four-level increase in the adjusted offense

- 3 - level; this enhancement was recommended on the basis that Stinson

used or possessed the firearms in connection with another felony

offense, and transferred the firearms with knowledge, intent, or

reason to believe that they would be used or possessed in

connection with another felony offense. See U.S.S.G.

§2K2.1(b)(6)(B). To support this enhancement, the PSR cited two

facts: (1) Stinson obtained the firearms during the burglary of JG

Pawn Shop and (2) he traded the firearms for heroin.

At sentencing, the district court accepted the guideline

calculations as set forth in the PSR, rejecting an argument by

Stinson's counsel that applying the other-felony-offense

enhancement in U.S.S.G. §2K2.1(b)(6)(B) constituted impermissible

double counting. The sentencing judge noted that the recommended

guideline range for a total offense level of 27 and a criminal

history category of VI was 130 to 162 months. Had the judge

accepted Stinson's argument and not applied one of the four-level

enhancements, Stinson's total offense level would have been 23 and

his recommended sentencing range 92 to 115 months of imprisonment.

See U.S.S.G. ch. 5, pt. A (sentencing table). After hearing from

Stinson and his family members, hearing the prosecution's

recommendation of a below-guidelines sentence of 120 months, and

crediting the 17 months Stinson had spent in state custody, the

court sentenced Stinson to 90 months imprisonment and a term of

- 4 - supervised release of three years. Stinson timely appealed his

sentence.

Standard of Review

In reviewing the "procedural reasonableness of a

sentence, we afford de novo review to the sentencing court's

interpretation and application of the sentencing guidelines, assay

the court's factfinding for clear error, and evaluate its judgment

calls for abuse of discretion." United States v. Ruiz-Huertas,

(1st Cir. 2015). However, if a party fails to

preserve claims of error in the district court, we review the

unpreserved claims for plain error only. See

The parties dispute whether Stinson adequately preserved

his arguments, but we need not resolve that issue, because the

outcome is the same under de novo or plain error review. See

United States v. Delgado-Flores,

(1st Cir. 2015).

Therefore, we will assume arguendo that Stinson preserved his

arguments on appeal and apply de novo review. See United States

v. Ubiles-Rosario,

(1st Cir. 2017).

Analysis

We have repeatedly held that a court may apply different

enhancements based on the same nucleus of operative facts if the

enhancements target "discrete concerns." United States v. Fiume,

(1st Cir. 2013) (quoting United States v. Lilly,

(1st Cir. 1994)). In this sense, double counting

- 5 - is "less sinister than the name implies," United States v. Zapata,

(1st Cir. 1993), and is more appropriately thought

of as "multiple use" of the same underlying fact. Fiume,

n.2. We are reluctant to forbid multiple use of a fact

unless the Sentencing Commission has explicitly forbidden it or

there is a compelling basis for reading into the guidelines such

a prohibition.

at 62 n.3 (collecting examples of Commentary

instructing against application of certain enhancements when same

aspect of relevant fact is used in other sentencing calculations);

see also United States v. Chiaradio,

(1st Cir.

2012).

The trafficking enhancement set out in Section

2K2.1(b)(5) states: "If the defendant engaged in the trafficking

of firearms, increase by 4 levels." Application Note 13 to Section

2K2.1 explains that Section 2K2.1(b)(5) interacts with other

subsections in the following manner:

Interaction with Other Subsections.--In a case in which three or more firearms were both possessed and trafficked, apply both subsections (b)(1) and (b)(5). If the defendant used or transferred one of such firearms in connection with another felony offense (i.e., an offense other than a firearms possession or trafficking offense) an enhancement under subsection (b)(6)(B) also would apply.

U.S.S.G. §2K2.1, cmt. n.13.

- 6 - In turn, the other-felony-offense enhancement set out in

Section 2K2.1(b)(6)(B) states: "If the defendant . . . used or

possessed any firearm or ammunition in connection with another

felony offense; or possessed or transferred any firearm or

ammunition with knowledge, intent, or reason to believe that it

would be used or possessed in connection with another felony

offense, increase by 4 levels." Section 2K2.1's Application Note

14 explains that Subsection (b)(6)(B) applies even when the "other

offense" is burglary:

Application When Other Offense is Burglary or Drug Offense.--Subsections (b)(6)(B) and (c)(1) apply (i) 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; and (ii) in the case of a drug trafficking offense in which a firearm is found in close proximity to drugs, drug-manufacturing materials, or drug paraphernalia. In these cases, application of subsections (b)(6)(B) and, if the firearm was cited in the offense of conviction, (c)(1) is warranted because the presence of the firearm has the potential of facilitating another felony offense or another offense, respectively.

U.S.S.G. §2K2.1, cmt. n.14.

Stinson's counsel conceded at the sentencing hearing

that he could not find anything in the guidelines proscribing

simultaneous application of the trafficking and other-felony-

offense enhancements. We also find no such prohibition.

- 7 - Stinson correctly observes that Application Note 13

requires application of the other-felony-offense enhancement if,

in a case in which three or more firearms were trafficked, a

defendant "used or transferred" a firearm in connection with

another felony. Stinson did not use or transfer the firearms

during the course of the burglary; he only possessed them. But

Section 2K2.1(b)(6)(B) itself states that it applies when a

defendant "used or possessed" a firearm in connection with another

felony offense. And Application Note 14 clarifies that the other-

felony-offense enhancement applies in the case of a burglary when

a defendant "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." Application Note 14 therefore addresses the

very facts of this case. The two sentencing enhancements can

operate independently of one another, even if Application Note 13

provides guidance about how judges should apply both Section

2K2.1(b)(5) and Section 2K2.1(b)(6)(B) when the defendant's crime

triggers both enhancements.

We lack any explicit instruction not to apply the other-

felony-offense enhancement when the other offense is burglary and

the defendant did not use or transfer the firearm during the

burglary. That an Application Note describes one set of

circumstances in which an enhancement may be applied does not mean

the enhancement is available only in those specific circumstances.

- 8 - See, e.g., United States v. Brake,

(1st Cir.

2018) (finding no impermissible multiple use in application of

stolen firearm enhancement and other-felony-offense enhancement

supported by acquisition of firearms during burglary). Stinson's

reading of Application Note 13 would have us disregard the plain

text of Section 2K2.1(b)(6)(B) in favor of a stretched

interpretation of guideline commentary. This we cannot do. See

Stinson v. United States,

(1993) ("[C]ommentary in

the Guidelines Manual that interprets or explains a guideline is

authoritative unless it . . . is inconsistent with, or a plainly

erroneous reading of, that guideline."). Additionally, "[a]n

application note and a guideline are inconsistent only when

'following one will result in violating the dictates of the

other.'" United States v. Piper,

(1st Cir. 1994)

(quoting Stinson,

). Application Note 13 does not

forbid applying the other-felony-offense enhancement in this case,

nor does it violate the guideline it interprets.

Stinson further asks us to consider holdings from the

Second and Fifth Circuits vacating sentences due to misapplication

of Section 2K2.1(b)(6)(B). In the Second Circuit case, United

States v. Young,

(2d Cir. 2016), the defendant

received a Section 2K2.1(b)(5) enhancement for trafficking in

firearms and a Section 2K2.1(b)(6)(B) enhancement for possessing

or transferring firearms to others with knowledge, intent, or

- 9 - reason to believe they will be used or possessed in connection

with another felony offense. See

. The Second Circuit

read Application Note 13 as prohibiting the application of both

the trafficking enhancement and the other-felony-offense

enhancement (where the other qualifying offense is the same

trafficking) because of the Note's language excluding "firearms

possession or trafficking offense[s]" as qualifying offenses.

at 602 (quoting U.S.S.G. §2K2.1, cmt. n.13). The Fifth Circuit's

decision in United States v. Guzman,

(5th Cir.

2015) likewise found that the Section 2K2.1(b)(6)(B) other-felony-

offense enhancement for "exporting firearms without a license" and

the trafficking enhancement could not both apply when based on the

same trafficking offense.

.

Though well-reasoned, neither Young nor Guzman involved

a burglary offense as the other-felony-offense for enhancement

purposes. There is no text in the guidelines or Application Notes

forbidding application of Section 2K2.1(b)(6)(B) here. To the

contrary, Application Note 13 explains that with a trafficking

enhancement under Section 2K2.1(b)(5), an other-felony-offense

enhancement under Section 2K2.1(b)(6)(B) would apply; and further,

Application Note 14 explains that the other-felony-offense

enhancement under Section 2K2.1(b)(6)(B) would apply when the

other offense is burglary, "even if the defendant did not engage

- 10 - in any other conduct with that firearm during the course of the

burglary." U.S.S.G. §2K2.1, cmt. n.14.

Therefore, we hold that applying the other-felony-

offense enhancement supported by Stinson's burglary offense was

appropriate. See also United States v. Shelton,

(7th Cir. 2018) (upholding other-felony-offense

enhancement along with trafficking enhancement where other felony

offense was burglary).

Conclusion

For the above reasons, Stinson's sentence is affirmed.

- 11 -