17-1979 United States of America v. Adam Brake

United States Court of Appeals
For the First Circuit
Nos. 17-1978, 17-1979
United States of America,
Appellee,
v.
Adam Brake,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Lynch, Stahl, and Thompson,
Circuit Judges.
Jane Elizabeth Lee, on brief for Appellant.
Halsey B. Frank, United States Attorney, with whom Benjamin
M. Block, Assistant United States Attorney, was on brief for
Appellee.
September 14, 2018

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STAHL, Circuit Judge. Defendant Adam Brake pleaded
guilty to one count of possession of a firearm by a convicted felon
in violation of 18 U.S.C. § 922(g)(1). In calculating Brake's
sentence, the district court applied, inter alia, a two-level
enhancement for possession of a stolen firearm and a four-level
enhancement for using a firearm in connection with another felony.
On appeal, Brake challenges the district court's application of
these two enhancements. After careful consideration, we affirm.
I. Factual Background and Prior Proceedings
We briefly summarize the essential facts of the case.
"Because this appeal follows a guilty plea, we draw the relevant
facts from the plea agreement, the change-of-plea colloquy, the
undisputed portions of the presentence investigation report
('PSR'), and the transcript of the disposition hearing." United
States v. O'Brien, 870 F.3d 11, 14 (1st Cir. 2017).
In May 2016, in response to a reported burglary, officers
from the Berwick (Maine) Police Department stopped a car matching
a bulletin for a separate burglary. Brake was inside the car and
consented to a search of the vehicle. 1 Police discovered a crowbar
and multiple laptop computers in the trunk of the car. At that
point, Brake confessed to multiple burglaries in the area.
1 The vehicle's owner and two children were also in the car.

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In a subsequent interview following Miranda warnings,
Brake reaffirmed his earlier confession and informed police that
some of the stolen property remained stashed at a Berwick
residence. After a search of the premises (presumably conducted
pursuant to a search warrant), police recovered numerous items
from multiple burglaries, including currency, electronics,
jewelry, and (most notably for purposes of this appeal) nine
firearms. On June 5, 2017, Brake pleaded guilty to an information
charging possession of a firearm by a felon, and separately
admitted to four violations of the terms of his supervised release
on an earlier conviction.
Using the 2016 Sentencing Guidelines, the United States
Probation Office ("Probation") issued its first PSR for the felon
in possession count in July 2017. Based on Brake's criminal
history, the PSR calculated a base offense level of 20, see
U.S.S.G. § 2K2.1(a)(4)(A), and applied enhancements for specific
offense characteristics: (a) a four-level increase based on the
number of firearms involved in the offense, id. § 2K2.1(b)(1)(B);
and (b) a two-level increase because the offense involved stolen
firearms, id. § 2K2.1(b)(4)(A). 2 Following Brake's objections to
the first PSR, Probation issued a second PSR which included in its
calculation an additional enhancement of four levels because Brake
2 The PSR also included a three-point reduction to Brake's
offense level based on acceptance of responsibility.

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"used or possessed [] firearm[s] . . . in connection with another
felony offense," id. § 2K2.1(b)(6)(B), namely the felony
burglaries during which Brake stole the firearms.
Brake objected to both PSRs on a number of grounds, none
of which are claimed to be relevant here. 3 The district court
overruled all of Brake's objections to the guidelines calculation.
On September 25, 2017, the court sentenced Brake to a term of 84
months' incarceration for possession of a firearm by a felon and
a concurrent term of 24 months' incarceration for violating the
terms of his supervised release. 4 Brake timely appealed.
II. Discussion
Brake's sole argument in this appeal is that the district
court erred in imposing both the two-level enhancement under
Section 2K2.1(b)(4)(A) and the four-level enhancement under
Section 2K2.1(b)(6)(B). The government both contests this
argument and counters that, in any event, Brake's claim has been
3 While Brake objected to the second PSR's addition of the
four-level enhancement under Section 2K2.1(b)(6)(B), he staked his
objection on different grounds than those raised in this appeal.
Brake argued that Probation's inclusion of a new enhancement after
he submitted objections was retaliatory. However, Brake did not
object to the inclusion of the two-level enhancement pursuant to
Section 2K2.1(b)(4)(A) and did not make the "double counting"
argument he now makes.
4 Brake appeals both the revocation of his supervised release,
No. 17-1978, and the felon in possession conviction, No. 17-1979,
in this consolidated appeal. However, he does not raise any claim
of error regarding the sentence imposed for the supervised release
violations.

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waived because he did not object to the Section 2K2.1(b)(4)(A)
stolen gun enhancement when he was before the district court. In
response, Brake argues that this argument may have been forfeited,
but was not waived because the specific issue of double counting
was never addressed below.
The distinction between waiver and forfeiture may be
material to the scope of appellate review. Waiver refers to the
"intentional relinquishment or abandonment of a known right."
United States v. Olano, 507 U.S. 725, 733 (1993) (internal
quotation marks and citation omitted). "By contrast, forfeiture
refers not to affirmative conduct but rather to a 'failure to make
the timely assertion of a right.'" United States v. Gaffney-
Kessell, 772 F.3d 97, 100 (1st Cir. 2014) (quoting Olano, 507 U.S.
at 733). A waived issue ordinarily may not be reviewed on appeal.
Id. Issues forfeited below, however, are subject to plain error
review. Olano, 507 U.S. at 733-34.
We need not determine whether Brake waived his
objection, as we conclude that Brake's claim does not rise to the
level of plain error. "Where a defendant's claim would fail even
if reviewed for plain error, we have often declined to decide
whether the defendant's failure to raise the issue below
constituted waiver or mere forfeiture." United States v. Acevedo-
Sueros, 826 F.3d 21, 24 (1st Cir. 2016).

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Brake claims that the district court impermissibly
"double counted" in applying enhancements for both possessing a
stolen firearm, U.S.S.G. § 2K2.1(b)(4)(A), and possessing a
firearm "in connection with another felony offense," id.
§ 2K2.1(b)(6)(B). Brake asserts that, in his case, both
enhancements address the possession of firearms stolen during the
burglaries (the felonies on which the Section 2K2.1(b)(6)(B)
enhancement is predicated). He contends that, in this instance,
this constitutes "double counting." In his view, the enhancement
for possessing the firearms in connection with the burglaries
accounts for the stolen nature of the weapons, rendering the
enhancement for possessing stolen firearms duplicative.
Despite its pejorative nomenclature, "[d]ouble counting
in the sentencing context is a phenomenon that is less sinister
than the name implies." United States v. Lilly, 13 F.3d 15, 19
(1st Cir. 1994) (internal quotation marks and citation omitted).
"Multiple sentencing adjustments may derive from 'the same nucleus
of operative facts while nonetheless responding to discrete
concerns.'" United States v. Fiume, 708 F.3d 59, 61 (1st Cir.
2013) (quoting Lilly, 13 F.3d at 19). Indeed, as this court has
observed, "[t]he Sentencing Commission has shown itself fully
capable of expressly forbidding double counting under the
guidelines when appropriate," United States v. Chiaradio, 684 F.3d
265, 283 (1st Cir. 2012), and it "has not been bashful about

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explicitly banning double counting in a number of instances,"
Lilly, 13 F.3d at 19 (collecting examples). Accordingly, "when
neither an explicit prohibition against double counting nor a
compelling basis for implying such a prohibition exists, courts
should be reluctant to read in a prohibition where there is none."
Chiaradio, 684 F.3d at 283 (internal quotation marks and citation
omitted).
Though a matter of first impression in this circuit, a
number of our sister circuits have wrestled with "double counting"
challenges to the enhancements raised here. Circuit courts
initially split over the separate but related question of whether
the enhancement for using or possessing a firearm "in connection
with another felony offense" applied to defendants who, like
Brake, 5 began a burglary unarmed but stole firearms during the
crime. Prior to the 2006 Amendments to the Sentencing Guidelines,
at least three circuits had concluded that gun thefts by prohibited
persons under those circumstances justified enhancements for both
the possession of a stolen firearm and possessing the weapon during
the felony burglary. See United States v. Schaal, 340 F.3d 196,
199 (4th Cir. 2003); United States v. Kenney, 283 F.3d 934, 936-39
(8th Cir. 2002); United States v. Luna, 165 F.3d 316, 322-24 (5th
5 While the record and briefs are not entirely clear, we
assume for purposes of this appeal that Brake was not armed when
he entered any of the burgled residences and only acquired the
firearms during the course of the burglaries.

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Cir. 1999). Other circuits, however, blanched at enhancing
sentences based on acquisition of the firearm during a
contemporaneous felony. Instead, those courts required a
"separation of time" or "distinction of conduct" between the
offense of conviction and the "other felony offense" used as an
enhancement predicate under Section 2K2.1(b)(6)(B). 6 See United
States v. Fenton, 309 F.3d 825, 827-28 (3d Cir. 2002); United
States v. Szakacs, 212 F.3d 344, 348-52 (7th Cir. 2000); United
States v. Sanders, 162 F.3d 396, 399-402 (6th Cir. 1998). The
Sentencing Commission amended the Guidelines in 2006 to resolve
this conflict, adding Application Note 14(B) to Section 2K2.1 and
clarifying that, even without any additional conduct, acquisition
of a gun during a burglary justifies application of the enhancement
for possessing a firearm "in connection with another felony
offense." See U.S.S.G. app. C amend. 691; U.S.S.G. § 2K2.1 cmt.
n.14(B).
We view this history, and particularly the Sentencing
Commission's resolution of this interpretive dispute, as
dispositive of Brake's claim. Even in the best of circumstances,
we are hesitant to infer an extratextual prohibition on "double
6 At the time of these decisions, the enhancement for use or
possession of a firearm in connection with another felony offense
appeared in Section 2K2.1(b)(5). The Sentencing Commission
subsequently renumbered that section in 2006, but did not revise
the language of the enhancement. See U.S.S.G. app. C amend. 691.
The current numbering is used here for the reader's convenience.

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counting" absent a "compelling basis" to do so. Chiaradio, 684
F.3d at 283. Here, the Sentencing Commission's adoption of
Application Note 14(B) not only fails to support such an inference;
it in fact supports the opposite conclusion. True, that note does
not speak directly to the issue at hand: by its terms, it resolves
solely the application of Section 2K2.1(b)(6)(B) to burglaries
resulting in firearms thefts and does not mention Section
2K2.1(b)(4)(A). In drafting that guidance, however, the
Commission adopted a position urged by several circuits as their
basis for applying both enhancements. See, e.g., Kenney, 283 F.3d
at 936-39. It is hard to believe that, in adopting that
application note, the Commission would have overlooked the
potential for both enhancements to be applied or that it intended
to prohibit such application. 7 At least two other circuits have
taken a similar view of the significance of the Commission's
guidance. See United States v. Blackbourn, 344 F. App'x 481, 484
(10th Cir. 2009) (stating that Application Note 14(B) "was added
by the Commission to resolve a circuit split on whether both . . .
enhancements can be applied when a defendant participates in a
7 This conclusion is reinforced by Section 2K2.1's inclusion
of other application notes which limit those enhancements in other
ways. See U.S.S.G. § 2K2.1 cmt. n.8(A) (impermissible "double
counting" to apply Section 2K2.1(b)(4)(A) where base offense level
determined by Section 2K2.1(a)(7) and offense based on one of
several enumerated statutory sections); id. at cmt. n.14(E)(ii)
(describing factual circumstances in which Section 2K2.1(b)(6)(B)
does not apply).

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burglary in which firearms are taken"); United States v. Young,
336 F. App'x 954, 959 & n.9 (11th Cir. 2009) (per curiam).
Resolving this case does not require us to determine whether the
Commission's guidance implicitly endorses the application of
Sections 2K2.1(b)(4)(A) and 2K2.1(b)(6)(B) to circumstances like
those presented here. Instead, we need only find that there is no
basis to interpose an implied prohibition on "double counting"
those enhancements, and we have no trouble reaching that
conclusion.
Moreover, we view this result as consistent with the
purposes behind the enhancements. Though both enhancements
"derive from the same nucleus of operative facts" in this case,
namely the burglaries, 8 they "nonetheless respond[] to discrete
concerns." Fiume, 708 F.3d at 61 (internal quotation marks and
citation omitted). In this regard, Brake's claim that both
enhancements respond to the stolen nature of the guns is simply
incorrect. Though Brake's firearms thefts give rise to the four-
level enhancement under Section 2K2.1(b)(6)(B), the sentencing
concern addressed by that provision is wholly unrelated to whether
the weapon was stolen during the burglary or at any other point.
8 Despite Brake's suggestion that the enhancement for
possessing a stolen firearm is based solely on his possession of
the weapons during the burglaries, the record indicates that he
continued to maintain control over the stolen weapons for some
time thereafter. It is thus not obvious that the enhancements are
temporally linked to the same period of possession.

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Rather, it speaks to the risk that possessing a firearm during a
burglary might facilitate that offense or portend other,
potentially more serious, crimes. See U.S.S.G. app. C amend. 691
("The Commission determined that application of [Section
2K2.1(b)(6)(B) to contemporaneous burglaries] is warranted . . .
because of the potential that the presence of a firearm has for
facilitating another felony offense or another offense."). On the
other hand, Section 2K2.1(b)(4)(A) addresses the firearm's prior
theft without regard to any risk that it might be used in
furtherance of some criminal act. See United States v. Gallegos,
631 F. App'x 875, 880 (11th Cir. 2015) (per curiam) ("[T]he harm
accounted for by § 2K2.1(b)(4)(A) is not [the gun's] potential
use, but the simple fact that the firearm possessed or transferred
was stolen."). Said differently, even where they grow from the
same factual root, those enhancements "bear[] upon two separate
sentencing considerations" which are entirely distinct from one
another. Fiume, 708 F.3d at 61; cf. also United States v. Wallace,
461 F.3d 15, 36 (1st Cir. 2006) (concluding that enhancements for
unlawful possession of semiautomatic weapon and for using a weapon
or dangerous instrumentality in the commission of an offense
addressed discrete concerns). From this perspective, too, we see
no fault in applying both enhancements to Brake's conduct.

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III. Conclusion
For the foregoing reasons, we AFFIRM the sentence
imposed on the appellant.

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