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No double counting for a sentence enhancment for possession of a gun in connection with a drug crime even though drug charges were dropped.

In U.S. v Webb, the defendant pleaded guilty to possessing a firearm as a convicted felon. He was arrested when he was stopped by police en route to meet an informant for a drug purchase. Police found cash and a 9mm semiautomatic handgun. Webb was charged with attempted drug possession and possession of a firearm by a convicted felon but in his plea to the gun possession counts the drug counts were dismissed.

This is how his sentencing guidelines were calculated by the sentencing court for this conviction. First, the court looked at USSG ยง2K2.1, the guidelines for the firearm offense. A four level enhancement applies for possession of the firearm in connection with a drug offense giving him a level 18. Under 2K2.1, if the defendant possessed the weapon in the attempted commission of another offense, the court must calculate the offense level under 2X1.1, which was the drug offense 2D1.1, and then apply the greater of the two offense levels. The fact that Webb was not convicted of a drug offense is irrelevant because the Guidelines commentary states that another offense means “any offense” regardless of whether criminal charges were brought or a conviction obtained. The drug weight raised the offense level to 26. Pursuant to 2D1.1(b)(1) there is a 2 level increase for possession of a firearm during a drug offense for a level 28. Because 28 was higher than the range calculated under 2K2.1, the range under 2D1.1 applied, giving him a range of 70 to 87. Webb challenged the 2 level increase for possession of the firearm because it amounted to double counting. He claimed that his range for the drug offense was higher because of the firearm enhancement.

The 11th Circuit upheld the enhancement and found applying 2D1.1(b)(1) did not result in double counting for the firearm. Double counting occurs when one part of the guidelines increase the punishment for a harm that has been fully accounted for by the application of another part of the guidelines. The plain language of the guidelines shows the Sentencing Commission intended for the enhancement to apply. Section 2K2.1 directs the court to apply the higher of the adjusted offense level as calculated under 2K2.1 and 2X1.1. Section 2X1.1 directs the court to apply the guideline for the substantive offense when it includes “attempt” crimes. Here, 2D1.1 applies to attempted drug possession. The guidelines require the court to apply 2D1.1 in its entirety including the gun enhancement. In fact, the guidelines commentary confirms that the enhancement was intended in the case of a firearm possession.

The 11th Circuit observed that the Commission recognized that a firearm could potentially enable other offenses, such as drug crimes and the cross reference provision enable courts to take this into account. Furthermore, the guidelines require courts to take into consideration all relevant conduct. Because Webb possessed a firearm while attempting to buy a half kilogram of cocaine, the firearm possession was not irrelevant to the drug sale. The court reaffirmed a sentencing scheme that subjects a defendant who possessed a firearm during another offense to a higher sentence than for a defendant who merely possessed the gun. The purpose of the cross reference is to punish a defendant for using the gun in the commission of another possibly more dangerous crime. The cross reference did not amount to double counting.