     Case: 11-30939     Document: 00511900341         Page: 1     Date Filed: 06/26/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 26, 2012
                                     No. 11-30939
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

GUY MANNING, JR.,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:09-CR-296-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Guy Manning, Jr., appeals from his guilty plea convictions for two counts
of being a felon in possession of a firearm (Counts One and Three), one count of
possession with intent to distribute a quantity of cocaine hydrochloride (Count
Two), and one count of possession of a firearm in furtherance of a drug
trafficking crime (Count Four). As he did in district court, he argues on appeal
that the district court erred by increasing his sentence pursuant to U.S.S.G.
§ 2K2.1(b)(1)(A) because the offense involved four firearms and pursuant to

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-30939   Document: 00511900341     Page: 2   Date Filed: 06/26/2012

                                 No. 11-30939

§ 2K2.1(b)(4)(B) because one of the firearms had an obliterated serial number.
He asserts that those two adjustments were prohibited pursuant to the
commentary for U.S.S.G. § 2K2.4, which governed Count Four. We review the
district court’s interpretation or application of the Guidelines de novo and its
factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008).
      “If a sentence under this guideline is imposed in conjunction with a
sentence for an underlying offense, do not apply any specific offense
characteristic for possession, brandishing, use, or discharge of an explosive or
firearm when determining the sentence for the underlying offense.” § 2K2.4,
comment. (n.4). Even if it is assumed that Count One or Three qualified as an
underlying offense for purposes of that commentary, the district court correctly
concluded that the application of those adjustments did not constitute
impermissible double counting because those adjustments were not based upon
the conduct listed in that commentary. See United States v. Terrell, 608 F.3d
679, 683 (10th Cir. 2010); United States v. Smith, 196 F.3d 676, 683 (6th Cir.
1999).
      The judgment of the district court is AFFIRMED.




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