                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-4152
                        ___________________________

                             United States of America

                       lllllllllllllllllllll Plaintiff - Appellee

                                          v.

  Camron Andrew Pete, Jr., also known as Dreadhead, also known as Cam, also
       known as Cam Stunt Montana, also known as Camron Montana

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                   for the Northern District of Iowa - Dubuque
                                 ____________

                          Submitted: December 11, 2017
                            Filed: February 12, 2018
                                 [Unpublished]
                                 ____________

Before WOLLMAN, LOKEN, and MELLOY, Circuit Judges.
                         ____________

PER CURIAM.

     Camron Andrew Pete, Jr., pleaded guilty to possession of a firearm by an
unlawful user of controlled substances in violation of 18 U.S.C. §§ 922(g)(3) and
924(a)(2). The district court1 sentenced him to 120 months’ imprisonment. We
affirm.

      On December 1, 2015, police officers responded to a report of shots fired in a
residential neighborhood in Dubuque, Iowa. The officers discovered that an occupied
apartment had been shot multiple times, causing damage to the windows, the siding,
and a refrigerator. A neighbor’s garage had also been shot. No one was injured.
Nearby, the officers located several spent 9mm casings and a Ruger 16-round, 9mm
magazine that contained seven rounds of ammunition.

       A few days later, police officers stopped Pete and Reginald Shaw, Jr., after the
men reportedly had forced themselves into Pete’s ex-girlfriend’s apartment. The
officers found a digital scale and 1.1 grams of crack cocaine in Pete’s backpack.
During a search of the vehicle, officers found ammunition and three loaded firearms,
including a Ruger 9E 9mm handgun that had a round in the chamber and which was
loaded with a ProMag 30-round magazine.

       Shaw eventually admitted to the December 1 shooting, explaining that Pete was
upset with an individual who lived at the apartment. Shaw explained that he had
accompanied Pete to the apartment and that Pete alone had shot at the apartment,
using the Ruger handgun, as well as another firearm that officers found in the vehicle.

      The U.S. Probation Office’s presentence report (PSR) calculated Pete’s
sentencing range under the U.S. Sentencing Guidelines Manual (Guidelines or
U.S.S.G.). The PSR determined that Pete’s base offense level was 20 because the
offense involved a semiautomatic firearm that was capable of accepting a large
capacity magazine. See U.S.S.G. § 2K2.1(a)(4)(B). The PSR recommended that


      1
        The Honorable Linda R. Reade, then Chief Judge, United States District Court
for the Northern District of Iowa.

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Pete’s offense level be increased by 4 because he committed the federal firearms
offense in connection with the Iowa offenses of carrying weapons in violation of
Iowa Code § 724.4(1) and going armed with intent in violation of Iowa Code § 708.8.
See U.S.S.G. § 2K1.1(b)(6)(B). After applying other adjustments not challenged on
appeal, the PSR determined that Pete’s total offense level was 25, his criminal history
category was IV, and his advisory sentencing range was 84 to 105 months’
imprisonment. The PSR suggested that an upward departure might be appropriate
because Pete had discharged two firearms into an occupied residence. See U.S.S.G.
§§ 5K2.0, 5K2.6.

       Over Pete’s objections, the district court adopted the calculations set forth in
the PSR and applied a 5-level upward departure, resulting in an advisory sentencing
range of 135 to 168 months’ imprisonment. Because the sentencing range exceeded
the statutory maximum term of imprisonment of 10 years, see 18 U.S.C. § 924(a)(2),
the district court imposed a 120-month sentence.

       Pete first argues that the district court erred in determining his base offense
level because his offense did not involve a “semiautomatic firearm capable of
accepting a large capacity magazine,” as required under U.S.S.G. § 2K2.1(a)(4)(B).
The Guidelines define that term as “a semiautomatic firearm that has the ability to fire
many rounds without reloading because at the time of the offense (A) the firearm had
attached to it a magazine or similar device that could accept more than 15 rounds of
ammunition.” U.S.S.G. § 2K2.1 cmt. n.2. There is no dispute that Pete’s firearm
meets the first part of the definition: the Ruger 9E 9mm handgun is a semiautomatic
firearm that can fire many rounds without reloading. Nor is there any dispute about
the second part, for the ProMag 30-round magazine was attached to the Ruger
handgun.

     Pete argues, however, that a lower base offense level should apply because the
ProMag magazine rendered the Ruger handgun inoperable. We have suggested that

                                          -3-
U.S.S.G. § 2K2.1(a)(4)(B) might not apply “in the unusual case where attaching the
large capacity magazine rendered or would render the semiautomatic firearm
inoperable.” United States v. Davis, 668 F.3d 576, 579 (8th Cir. 2012). Considering
this hypothetical in light of the facts here, Pete’s argument fails because the court
found that the ProMag magazine “will and does operate in the firearm at issue, and
it does fire.” That finding was supported by evidence presented during the sentencing
hearing, including the Ruger firearm and the ProMag magazine themselves, a video
of a federal agent repeatedly firing the Ruger handgun with the ProMag magazine
attached, and a state agent’s report explaining that the “Pro-Mag magazine . . .
intermittently functioned in the Ruger pistol.” According to the report, the ProMag
magazine was “slightly modified to fit the Ruger pistol,” which “cause[d] the internal
trigger bar to not move correctly” and sometimes required the trigger to manually
reset. Although the ProMag magazine might not have worked perfectly when used
in the Ruger handgun, it did not render the semiautomatic firearm inoperable.

       Pete next challenges the application of the sentencing enhancement set forth
in U.S.S.G. § 2K2.1(b)(6)(B) for using or possessing a firearm in connection with
another felony offense.2 He argues that application of the enhancement constitutes
impermissible double counting because the federal firearms offense is inextricably
entwined with the Iowa offense of carrying weapons in violation of Iowa Code
§ 724.4(1). See U.S.S.G. § 2K2.1 cmt. n.14(C) (defining “another felony offense” to
mean a felony offense “other than the explosive or firearms possession or trafficking
offense”). This argument is foreclosed by our decision in United States v. Walker,
in which we explained that a violation of Iowa Code § 724.4(1) supports the
application of U.S.S.G. § 2K2.1(b)(6)(B) because a defendant does not “automatically
commit the [Iowa] felony when he violate[s] 18 U.S.C. § 922(g) by possessing a
firearm as a [prohibited person].” 771 F.3d 449, 452-53 (8th Cir. 2014) (quoting


      2
       The government did not rely upon the Iowa offense of going armed with intent
to support the application of this enhancement.

                                         -4-
United States v. Jackson, 633 F.3d 703, 707 (8th Cir. 2011)). Pete also argues that
his Sixth Amendment right to trial by jury was violated by the district court’s
application of the enhancement. This argument is likewise foreclosed by circuit
precedent. See United States v. Boots, 816 F.3d 971, 975 n.3 (8th Cir. 2016)
(explaining that “[a] separate trial by a jury is not required to prove that ‘another
felony offense’ has been committed”) (citing United States v. Bridges, 569 F.3d 374,
377 (8th Cir. 2009)).

      Finally, Pete challenges the district court’s decision to depart upward by 5
levels under U.S.S.G. § 5K2.6 for using or possessing a weapon or dangerous
instrumentality. He contends that the pre-departure Guidelines calculation had fully
accounted for his relevant conduct and that the district court thus engaged in double
counting when it departed upward. “Double counting occurs if one part of the
Guidelines is applied to increase a defendant’s punishment on account of a kind of
harm that has already been fully accounted for by application of another part.”
United States v. Peeples, 879 F.3d 282, 288 (8th Cir. 2018) (internal quotation marks
omitted) (quoting United States v. Donelson, 450 F.3d 768, 774 (8th Cir. 2006)).
While the Guidelines may have accounted for the harm caused by Pete’s possession
of a firearm, they did not necessarily account for the harm caused by Pete’s
discharging a firearm into an occupied apartment, conduct that the district court
described as “very, very dangerous, intentional conduct.” See U.S.S.G. § 5K2.6
(“The discharge of a firearm might warrant a substantial sentence increase.”).

      The sentence is affirmed.
                      ______________________________




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