USA v. Brandon McClure

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPTEMBER 17, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-10021
Non-Argument Calendar
________________________
D.C. Docket No. 3:08-cr-00003-JTC-ECS-6
UNITED STATES OF AMERICA
lllllllllllllllllllllPlaintiff-Appellee,
versus
BRANDON MCCLURE,
a.k.a. Mickey Mouse,
lllllllll llllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 17, 2010)
Before TJOFLAT, BARKETT and FAY, Circuit Judges.
PER CURIAM:

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Brandon McClure appeals his 125-month sentence following his guilty plea
for conspiring to steal firearms from a federal licensee and to receive stolen
firearms, in violation of 18 U.S.C. § 371; stealing firearms from a federal licensee,
in violation of 18 U.S.C. § 922(u); and receiving stolen firearms, in violation of 18
U.S.C. §922(j). McClure’s conviction was based on his participation in the
burglary of a federally-licenced firearms dealer, during which he and his 13 co-
defendants stole over 80 firearms.
On appeal, McClure argues that the district court improperly calculated his
sentencing guidelines range by increasing his base offense level for possessing a
firearm in connection with another felony offense, under U.S.S.G. § 2K2.1(b)(6).
McClure also argues that the application the § 2K2.1(b)(6) sentencing
enhancement constituted impermissible double counting because the district court
also increased his base offense level for possessing a stolen firearm, under
U.S.S.G. § 2K2.1(b)(4)(A). After careful review, we affirm.1
McClure also argues, for the first time on appeal, that the application of the §1
2K2.1(b)(4)(A) sentencing enhancement constituted impermissible double counting because the
district court also increased his base offense level due to the number of firearms involved in his
offenses, under U.S.S.G. § 2K2.1(b)(1)(C). He contends that applying both enhancements
constituted impermissible double counting.
Because these sentencing enhancements deal with conceptually separate notions relating
to sentencing – possession of a stolen firearm and the number of firearms involved, respectively
– the district court did not plainly err by applying both in calculating McClure’s sentencing
guidelines range.
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Section 2K2.1(b)(6) provides for a four-level increase in a defendant’s base
offense level “[i]f the defendant used or possessed any firearm or ammunition in
connection with another felony offense . . . .” § 2K2.1(b)(6). The enhancement
applies “if the firearm or ammunition facilitated, or had the potential of
facilitating, another felony offense . . . .” Id. at cmt. n.14(A). For the purposes of
this enhancement, “another felony offense” is defined as “any Federal, state, or
local offense, other than the . . . firearms possession or trafficking offense,
regardless of whether a criminal charge was brought, or a conviction obtained.”
Id. at cmt. n.14(C).
Although McClure argues that the § 2K2.1(b)(6) enhancement was not
applicable to him, the guidelines commentary states that it applies “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 . . . .” Id. at cmt. n.14(B). McClure does not dispute
that the facts he admitted at his plea colloquy were sufficient to show that he took
the firearms during the course of a burglary. Rather, he contends that comment
14(B) does not apply in a case such as this, where the object of the burglary was to
steal firearms. However, the commentary makes no distinction between
circumstances where a burglary was committed in order to steal firearms, and
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those where a defendant found and took a firearm while committing a burglary for
some other reason. Comment 14(B) states that the enhancement is warranted
“because the presence of the firearm has the potential of facilitating another felony
offense[,]” which is true whether the theft of the firearm was merely incidental to
the burglary or was its object. Id. at cmt. n.14(B). Therefore, the application of
the § 2K2.1(b)(6) enhancement was not erroneous.
McClure also argues that the application the § 2K2.1(b)(6) sentencing
enhancement constituted impermissible double counting because it addressed the
same kind of harm that was fully accounted for by the § 2K2.1(b)(4)(A)
sentencing enhancement he received for possessing stolen firearms. However, the
kind of harm accounted for under § 2K2.1(b)(6), possession of a firearm during a
burglary, is conceptually distinct from the notion that a defendant should be
punished more severely for possessing a firearm that was stolen. Because the §
2K2.1(b)(4)(A) sentencing enhancement did not fully account for the kind of harm
addressed by § 2K2.1(b)(6), the district court did not err in applying both
enhancements in calculating McClure’s sentencing guidelines range.
AFFIRMED.
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