Firearm Enhancements and Double Counting

           In United States v. Hitch, --- F.4th --- (6th Cir. 2023), the defendant, James Hitch, pleaded guilty to the theft of multiple firearms from a federally licensed firearms dealer (18 U.S.C. § 922(u)) and being a felon in possession of a firearm (§ 922(g)(1)). The parties agreed to an enhancement under U.S.S.G. § 2K2.1(b)(6)(B)) because Mr. Hitch possessed a firearm in connection with another felony but they reserved the right to argue for or against an enhancement under § 2K2.1(b)(4)(A)) for the number of stolen firearms.

          The PSR recommended grouping the counts together and that the district court apply the § 2K2.1(b)(6)(B) and the § 2K2.1(b)(4)(A) enhancements. The possession count had the higher offense level and thus determined the base offense level under § 2K2.1(a)(6)(A). The district court overruled Mr. Hitch’s objection that application of the two enhancements amounted to double counting.  

          The Sixth Circuit affirmed. Mr. Hitch argued on appeal that double counting occurred because the enhancements were based on the same conduct. The court, however, concluded that the § 2K2.1(b)(4)(A) enhancement punished Mr. Hitch for possession of the stolen guns while the § 2K2.1(b)(6)(B) enhancement punished him for stealing the guns. The court found no error because two sentencing enhancements can be imposed for the same conduct if they punish “distinct aspects” of the conduct. Slip Op. at 3.

          Mr. Hitch also argued that he not only pleaded guilty to the possession count (§ 922(g)(1)) but also to the theft count (§ 922(u)). The Sixth Circuit considered this to be “a second double-counting argument which relied “on the false premise that the § 922(u) count increased the base offense level in the first instance and through the § 922(u) conduct-related enhancements.” Slip Op. at 4. (Emphasis original). The court recognized that there “are instances in which multiple counts do increase a defendant’s offense level, and those instances could arguably result in double counting if enhancements were applied based on the same behavior.” Id. But here, as a result of grouping, the offense level was based on the possession count. The base offense level was not increased because of the § 922(u) conviction, i.e., “there was no multiple-count adjustment” and no double counting.


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