"Double-Counting" under USSG 2K2.1; United States v. Fugate

A defendant who admitted that he sold firearms, some of which he knew were stolen, to drug traffickers and gang members was subjected to dual four-level enhancements under U.S.S.G. § 2K2.1(b): one under 2K2.1(b)(5) for trafficking in firearms, and the other under § 2K2.1(b)(6)(B) for possessing or trafficking firearms. Addressing an issue of first impression, the Sixth Circuit has ruled in United States v. Fugate that these twin enhancements constituted impermissible “double-counting” and vacated the defendant’s sentence.

The defendant was indicted for violations of both 18 U.S.C. §§ 922(g) (felon in possession of firearms) and 922(j) (knowingly trafficking in stolen firearms). He knew his business, his customers and his trade: he trafficked in guns in exchange for money. He pleaded guilty only to the 922(g) charge.

The defendant’ s guidelines were calculated in the presentence report as follows:
  • 14 – base offense level per 2K2.1(a)(6) because he was already a convicted felon and prohibited from possessing a firearm
  • +6 - per 2K2.1(b)(1)(C) because the defendant trafficked in more than 25 but less than 99 firearms
  • +2 – per 2K2.1(b)(4)(A) because some of the firearms were stolen and he knew it 
  • +4 – per 2K2.1(b)(5) - because the defendant engaged in the trafficking of firearms
  • +4 – per 2K2.1(b)(6)(B) because he trafficked in firearms in connection with another felony offense. This enhancement could be applied if there is knowledge that the guns would be used in connection with a felony offense by their purchaser but there was no evidence to support that.

The Sixth Circuit found that its holding was driven by Application note 13 (D) to the section, which directs courts to apply the 2K2.1(b)(6)(B) enhancement only if it is based on a felony offense other than a firearms possession or firearms trafficking offense. Otherwise, the defendant would be twice punished for trafficking in firearms “once simply for engaging the trafficking of firearms under 2K2.1(b)(5), and once for knowingly trafficking stolen firearms under 2K2.1(b)(6)(B). In the run of cases, the Court observed, the (b)(6)(B) enhancement is applied when the defendant used the firearms in connection with a completely distinct crime, like drug trafficking. The Court acknowledged where there was evidence that the defendant had traded firearms in exchange for drugs that both the enhancements would apply. But Fugate was a pure businessman, and there was no evidence that he wanted or sought or obtained anything other than money for the guns that he sold.

U.S.S.G. § 2K2.1 has other flaws that produce incongruous results. One is where it leads to a higher offense level for a person that merely facilitates possession of firearms by a prohibited person than it does where a person transfers firearms to an individual believed to intend on using that firearm to commit a crime. Here’s how that would unfold for a defendant that had no prior felony conviction and could lawfully purchase a firearm and transfer it to a prohibited person in a strawman transaction:
  • The base offense level would be 14 instead of 12 under 2K2.1(a)(6)(C)
  • A four (4) level enhancement would apply under U.S.S.G.§ 2K2.1(b)(5) for trafficking in firearms if two or more firearms are involved and two or more firearms are involved and the transferor had reason to believe or knew that the transferee was prohibited from possessing a firearm on account of a prior conviction.
  • As the court noted in Fugate, a four level enhancement could then be applied based on § 2K2.1(b)(6)(B), if the transfer was for the purpose of obtaining drugs. 
  • This scenario would lead to an adjusted offense level of 22.

A lower offense level is applicable if that same defendant would know that the guns he was trafficking in were intended to be used to commit a crime. Here’s how that would unfold: (1) the base offense instead of 14 would be 12 under 2K2.1(a)(7); and, (2) if the same four level enhancements under 2K2.1(b)(5) and 2K2.1(b)(6)(B) were applied, the adjusted offense level reaches only to 20.

This is incongruous because federal law generally punishes firearm possessory offenses less than it does for firearm use crimes, a comparison that the maximum sentence for 922(g) offense of ten years and the minimum five year sentence attaching to a 924(c) offense illustrates well. One reason for this incongruous result is that the first scenario both increases the base offense level from 12 to 14 based on the defendant’s knowledge that he was making the purchase for a prohibited person and to support the four-level enhancement under (b)(5), which is premised also on that knowledge. It also appears to run afoul of the analysis in United States v. Farrow, 198 F.3d 179 (6th Cir. 1999), establishing the rule that where a fact that is not an element of the crime is used to both increase a defendant’s base offense level and to support application of an enhancement impermissible “double-counting” occurs.  

Robert L. Abell

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