                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                   File Name: 19a0519n.06

                                       Case No. 18-1964

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                             Oct 15, 2019
UNITED STATES OF AMERICA,                           )                   DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellee,                          )
                                                    )     ON APPEAL FROM THE UNITED
v.                                                  )     STATES DISTRICT COURT FOR
                                                    )     THE WESTERN DISTRICT OF
CORDERO EUGENE BARNES,                              )     MICHIGAN
                                                    )
       Defendant-Appellant.                         )
                                                    )
____________________________________/


Before: MERRITT, DAUGHTREY, and GRIFFIN, Circuit Judges.

       MERRITT, Circuit Judge. Cordero Eugene Barnes pled guilty to one count of felon in
possession of a firearm and was sentenced to fifty-one months in prison with a three-year term of
supervised release. In this appeal, Barnes argues that his below-Guideline sentence is both
procedurally and substantively unreasonable because the District Court used the incorrect
guidelines, and that the District Court engaged in impermissible double counting. For the reasons
below, we AFFIRM.
                                               I.
       On August 18, 2017, a Kent County, Michigan, Sheriff’s Department deputy initiated a
traffic stop of the driver of a 1994 Chevrolet Camaro for moving and obstructed vision violations
and a passenger seatbelt violation. Ms. Brittany Rosenow was driving the vehicle, and Barnes was
in the front passenger seat. On the deputy’s contact with Rosenow and Barnes, Barnes acted like
he was asleep, although the deputy saw him moving inside the Camaro prior to the traffic stop.
When the deputy asked for Barnes’ identification, Barnes did not respond. Rosenow then hit
Case No. 18-1964, United States v. Barnes


Barnes on the leg, and Barnes told the deputy he did not have any identification. The deputy
noticed Barnes was shaking and that Barnes would not make eye contact. The deputy also smelled
the odor of marijuana coming from inside the vehicle. The deputy questioned the occupants about
the odor, to which they denied possessing any marijuana. The deputy then informed the occupants
he was going to search the vehicle, walked to the passenger side of the vehicle, and instructed
Barnes to exit. After observing a knife clipped to the pocket of Barnes’ pants, the deputy instructed
Barnes to leave the knife inside the vehicle. Barnes complied with the request and denied having
any other weapons.
         After Barnes exited the vehicle, the deputy noticed Barnes reaching for the waistband of
his pants. The deputy reached out and felt a handgun concealed in the waistband of Barnes’ pants
and under his shirt. The deputy attempted to gain control of Barnes’ right arm and instructed him
to place his hands on the vehicle. Barnes tensed up and continued to reach for his waistband with
his left hand. The deputy warned Barnes that if Barnes continued to reach for the firearm, the
deputy would shoot him. While the deputy attempted to handcuff Barnes, Barnes evidently pushed
off the vehicle and struck the deputy with his elbow and body, causing the deputy to lose balance.
Barnes allegedly reached for his waistband, and the deputy responded by firing two shots at
Barnes. One bullet struck Barnes in the forearm, and the other bullet hit a window of a nearby
business. Barnes then fled on foot, and the deputy eventually caught up with Barnes and held him
on the ground at gunpoint until back up arrived.
         A second deputy arrived on the scene and discovered a loaded .22 LR caliber magazine.
The deputies found a box in Barnes’ backpack located inside the vehicle containing seventy-eight
rounds of the same type of ammunition. Investigators recovered at the scene of the traffic stop a
loaded .22 LR caliber semiautomatic pistol1 containing 10 rounds of the same type of ammunition
located in Barnes’ backpack and the magazine.




         1
            The handgun was registered to Al and Bob’s Sports of Grand Rapids, Michigan. According to
documentation provided by Al and Bob’s Sports, Angel Nicole Avery purchased the handgun on August 16, 2017,
two days prior to Barnes’ arrest, to which she admitted. Ms. Avery was allegedly in a dating relationship with Barnes
at the time and admitted to being with him from Wednesday, August 16, until the morning of Friday, August 18, 2017.
Ms. Avery claimed to not have known her handgun was missing until receiving telephone calls in reference to Barnes
getting arrested and being in jail.

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Case No. 18-1964, United States v. Barnes


         Barnes pled guilty to violating 18 U.S.C. § 922(g)(1),2 felon in possession of a firearm and
ammunition. A presentence report prepared on June 25, 2018, found a base offense level of
14 because Barnes was a prohibited person when he committed the crime.                                       U.S.S.G.
§ 2K2.1(a)(6)(A). The report applied a four-level increase under U.S.S.G. § 2K2.1(b)(6)(B)3
(“Additional Felony”) because of Barnes’ use of a firearm in connection with another felony
offense, resisting and obstructing a police officer, Mich. Comp. Laws § 750.81d(1),4 a felony
punishable by up to two years in prison. Additionally, the report applied a two-level increase under
U.S.S.G. § 3C1.25 (“Reckless Endangerment”) for causing reckless endangerment during flight.
The report applied a three-level reduction for acceptance of responsibility. U.S.S.G. § 3E1.1(a).
[Id.] Based on the total offense level of seventeen, combined with a criminal history category of
IV, the Guideline range was thirty-seven to forty-six months.
         The government initially filed no objections; Barnes filed three objections. First, Barnes
objected to the four-level increase under the Additional Felony enhancement. Second, Barnes
objected to the two-level increase pursuant to the Reckless Endangerment enhancement. Third,
Barnes objected to the cumulative application of the enhancements, asserting that it constituted
impermissible double counting.
         The government, in its sentencing memorandum, objected to the Reckless Endangerment
enhancement, arguing that because Barnes put a law enforcement officer at risk, U.S.S.G.
§ 3A1.2(c)(1)6 (“Official Victim”), providing a 6-level increase, applies instead. The government
also responded to each of Barnes’ objections. Barnes maintained his prior objections and also
objected to the Official Victim enhancement, and that application of both the Additional Felony
and Official Victim enhancements amounted to impermissible double counting.

          2
            18 U.S.C. § 922(g)(1) states: “It shall be unlawful for any person . . . who has been convicted in any court
of[] a crime punishable for a term exceeding one year[] . . . to . . . possess in or affecting commerce, any firearm or
ammunition[.]”
        3
          U.S.S.G. § 2K2.1(b)(6)(B) provides: “If the defendant . . . used or possessed any firearm or ammunition in
connection with another felony offense . . . increase by 4 levels.”
         4
           Mich. Comp. Laws § 750.81d(1) states: “[A]n individual who assaults, batters, wounds, resists, obstructs,
opposes or endangers a person who the individual knows or has reason to know is performing his or her duties is guilty
of a felony punishable by imprisonment for not more than 2 years[.]”
         5
           U.S.S.G. § 3C1.2 provides: “If the defendant recklessly created a substantial risk of death or serious bodily
injury to another person in the course of fleeing from a law enforcement officer, increase by 2 levels.”
         6
           U.S.S.G. § 3A1.2(c)(1) states: “ If, in a manner creating a substantial risk of serious bodily injury, the
defendant . . . knowing or having reasonable cause to believe that a person was a law enforcement officer, assaulted
such officer during the course of the offense or immediate flight therefrom . . . increase by 6 levels.”

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Case No. 18-1964, United States v. Barnes


        The District Court held a sentencing hearing on August 6, 2018. At sentencing, Barnes
withdrew his Additional Felony and Reckless Endangerment objections, but objected to the
Official Victim enhancement7 and application of both the Additional Felony and Official Victim
enhancements. The government maintained its objection that the Official Victim enhancement
applied instead of the Reckless Endangerment enhancement. The District Court sustained the
government’s objection and overruled Barnes’ double counting objection, applying both the
Additional Felony and Official Victim enhancements. The District Court adjusted Barnes’ offense
level to twenty-one, reflecting the four-level increase of the Additional Felony enhancement, the
six-level increase of the Official Victim, and the three-level reduction for acceptance of
responsibility. With Barnes’ criminal history category of IV, the District Court found a Guideline
range of fifty-seven to seventy-one months. The District Court sentenced Barnes to a below-
Guideline sentence of fifty-one months with three years’ supervised release, finding Barnes
entitled to some variance.
                                                       II.
        Barnes raises three issues on appeal: (1) whether the sentence is procedurally and
substantively reasonable; (2) whether the District Court erred in applying the Additional Felony
enhancement under § 2K2.1(b)(6)(B); and (3) whether cumulative application of the Additional
Felony and Official Victim enhancements under §§ 2K2.1(b)(6)(B) and 3A1.2(c)(1) is
impermissible double counting.
                                                       A.
        First, Barnes argues that his sentence is procedurally and substantively unreasonable.
We first address the procedural argument. When reviewing for procedural error, our task is to
“ensure that the district court committed no significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range.” United States v. Berkey, 406 F. App’x 938, 939
(6th Cir. 2011) (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Barnes did not make this
argument below. We therefore review this challenge for plain error, which requires Barnes “to
show (1) error (2) that was obvious or clear, (3) that affected [his] substantial rights and (4) that
affected the fairness, integrity, or public reputation of judicial proceedings.” United States v.




        7
          We note that Barnes does not challenge the singular application of the Official Victim enhancement on
appeal besides his argument that his sentence is procedurally unreasonable.

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Case No. 18-1964, United States v. Barnes


Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (citing United States v. Gardiner, 463 F.3d
445, 459 (6th Cir. 2006)) (internal quotation marks omitted).
         Barnes argues that application of the Official Victim enhancement was prohibited because
the presentence report considered applying U.S.S.G. § 2A2.4 (“Obstructing or Impeding
Officers”).8 The District Court properly calculated Barnes’ base offense level under § 2K2.1.9
Section 2K2.1(c) instructs courts to apply another guideline only “if the resulting offense level is
greater than that determined” under § 2K2.1. The Additional Felony enhancement provides a four-
level increase. The Obstructing or Impeding Officers enhancement provides either a two or three-
level increase.10 The presentence report states that “[the Obstructing or Impeding Officers
enhancement] was not applied because it would not have resulted in a higher offense level[.]” The
District Court did not mention the Obstructing or Impeding Officers enhancement at sentencing.
Because the Obstructing or Impeding Officers enhancement does not apply, we do not address the
rest of Barnes’ meritless argument. Barnes’ sentence is procedurally reasonable.
         We next address Barnes’ argument that his below-Guidelines sentence is substantively
unreasonable. “We review the substantive reasonableness of a sentence for abuse of discretion
. . . .” United States v. Sexton, 889 F.3d 262, 265 (6th Cir. 2018) (internal citation and quotation
marks omitted). “A sentence is substantively reasonable if it is proportionate to the seriousness of
the circumstances of the offense and offender, and sufficient but not greater than necessary, to
comply with the purposes of [18 U.S.C.] § 3553(a).”11 Id. (internal quotation marks omitted).



         8
          The Official Victim enhancement does not apply “if the offense guideline specifically incorporates” the
Official Victim factor. § 3A1.2 cmt. n.2. The only offense guideline in Chapter Two that does so, however, is the
Obstructing or Impeding Officers enhancement. Id.
         9
          Appendix A of the Sentencing Guidelines Manual directs application of § 2K2.1 (“Unlawful Receipt,
Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or
Ammunition”) to violations of 18 U.S.C. § 922(g). U.S.S.G. app. A.
          10
             U.S.S.G. § 2A2.4 applies a 2-level increase “[i]f the victim sustained bodily injury[]”; and a 3-level increase
if “(A) the offense involved physical contact; or (B) a dangerous weapon (including a firearm) was possessed and its
use was threatened[.]” Barnes’ argument that the Obstructing or Impeding Officers enhancement applies instead of
the Additional Felony enhancement is therefore incorrect, as the latter results in a greater offense level than the former.
         11
              18 U.S.C. § 3553(a) provides:
         (a) Factors to be considered in imposing a sentence.—The court shall impose a sentence sufficient,
             but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this
             subsection. The court, in determining the particular sentence to be imposed, shall consider—
         (1) the nature and circumstances of the offense and the history and characteristics of the defendant;
         (2) the need for the sentence imposed—

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Case No. 18-1964, United States v. Barnes


Conversely, “a sentence is substantively unreasonable when the district court selects a sentence
arbitrarily, bases the sentence on impermissible factors, fails to consider relevant sentencing
factors, or gives an unreasonable amount of weight to any pertinent factor.” Id. (citation omitted).
Sentences within the advisory Guideline range are presumed reasonable. Rita v. United States,
551 U.S. 338, 347 (2007). When a “variance results in a sentence even more favorable to the
challenging defendant . . . [the] defendant’s task of persuading us that the more lenient sentence .
. . is unreasonably long is even more demanding.” United States v. Curry, 536 F.3d 571, 573 (6th
Cir. 2008) (citations omitted).
       Barnes does not meet that task. The District Court considered Barnes’ age and his five
prior adult convictions. The District Court recognized the need for specific deterrence of Barnes,
considering his repeated offenses regarding possession of firearms, and general deterrence, citing
current nationwide gun violence issues. The District Court further considered Barnes’ need for
vocational and educational training, substance abuse treatment, counseling, medical attention, and
cognitive therapy. Finally, the District Court departed downward six months from the advisory
Guideline range, finding Barnes’ remorse genuine and potential promising, and concluding that
the fifty-one-month sentence was sufficient but not greater than necessary under the circumstances.
       The District Court did not abuse its discretion. The record does not show that the District
Court selected Barnes’ sentence arbitrarily or considered impermissible factors. Nor is there
evidence that the District Court neglected any relevant factors or gave undue weight to any
particular factor. Barnes’ sentence is thus substantively reasonable.
                                                        B.
       Second, Barnes argues that the District Court erred in applying the Additional Felony
enhancement. The government asserts that Barnes waived this issue at the sentencing hearing.
We do not address arguments waived by express abandonment in the district court. United States
v. Denkins, 367 F.3d 537, 542 (6th Cir. 2004).




           (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just
               punishment for the offense;
           (B) to afford adequate deterrence to criminal conduct;
           (C) to protect the public from further crimes of the defendant; and
           (D) to provide the defendant with needed educational or vocational training, medical care, or
               other correctional treatment in the most effective manner

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Case No. 18-1964, United States v. Barnes


        Barnes initially filed an objection to the application of the Additional Felony enhancement.
At sentencing, however, defense counsel12 clearly withdrew the objection:
        THE COURT: You have objections to the guideline scoring. Any other objections
        to the report?
        MS. NIEUWENHUIS: No, you Honor. And I would like to indicate to the Court,
        I had some adequate time this morning to discuss with Mr. Barnes the objections
        which had been filed on his behalf, and we are formally withdrawing our
        objections to the – in connection with [another felony offense] argument.

(emphasis added).
        The record thus shows that Barnes waived his Additional Felony objection. In light of that
waiver, we need not address the allegation of error regarding the application of the Additional
Felony enhancement.
                                                      C.
        Third, and finally, Barnes claims that cumulative application of the Additional Felony and
Official Victim enhancements is impermissible double counting. “[D]ouble counting occurs when
precisely the same aspect of the defendant’s conduct factors into his sentence in two separate ways
. . . but no double counting occurs if the defendant is punished for distinct aspects of his conduct.”
United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010) (citing United States v. Moon,
513 F.3d 527, 542 (6th Cir. 2008)).
        We have not specifically addressed whether it is impermissible double counting to apply
both the Additional Felony and Official Victim enhancements. We have held, however, that
“[d]ouble counting is allowed where it appears that Congress or the Sentencing Commission
intended to attach multiple penalties to the same conduct.” Battaglia, 624 F.3d at 351 (citation
and internal quotation marks omitted).           The Guidelines, unless instructed otherwise, direct
cumulative application of enhancements under Chapter Two and adjustments under Chapter Three,
although they “may be triggered by the same conduct.” U.S.S.G. § 1B1.1 cmt. n.4B.
        Here, the Guidelines do not prohibit cumulative application of the Additional Felony and
Official Victim enhancements. The enhancements are found in different chapters, each pertaining
to a different aspect of the defendant’s conduct. The Additional Felony enhancement is in Chapter
2 of the Guidelines, which concerns the conduct of the offense, specifically, threats to public


        12
          We note that Attorney Helen C. Nieuwenhuis represented Barnes at the sentencing hearing, and Attorney
Robert H. Dietrick represents Barnes on appeal.

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Case No. 18-1964, United States v. Barnes


safety.    The Official Victim enhancement is in Chapter 3A of the Guidelines, regarding
characteristics of the victim. Moreover, the Guidelines instruct sentencing courts to apply “any
appropriate specific offense characteristics, cross references, and special instructions contained in
the particular guideline in Chapter Two” and then “[a]pply the adjustments as appropriate related
to [the] victim . . . from Parts A, B, and C of Chapter Three.” U.S.S.G. § 1B1.1 (a)(2)–(3).
Additionally, we have affirmed a sentence enhanced under similar provisions. See United States
v. Cole, 422 F. App’x 471, 472–73 (6th Cir. 2011) (affirming a sentence enhanced under both
§§ 2K2.1(b)(6) and 3A1.2(c)(1)). Other circuits also have upheld sentences cumulatively applying
similar enhancements. See United States v. Hampton, 628 F.3d 654, 664 (4th Cir. 2010) (affirming
a sentence enhanced under both §§ 2K2.1(b)(6) and 3A1.2(c)(1)); United States v. Hill, 583 F.3d
1075, 1081 (8th Cir. 2009) (holding that “the cumulative enhancements under [U.S.S.G.]
§§ 2K2.1(b)(6) or 3A1.2(b) did not constitute impermissible double counting”); United States v.
Coldren, 359 F.3d 1253, 1256–57 (10th Cir. 2004) (affirming a sentence enhanced under both
§§ 2K2.1(b)(5) and 3A1.2(b)); United States v. Jackson, 276 F.3d 1231, 1235–36 (11th Cir. 2001)
(affirming a sentence enhanced under both §§ 2K2.1(b)(5) and 3A1.2(b)).
          The District Court did not engage in impermissible double counting. Each enhancement
applies to different aspects of Barnes’ conduct: the Additional Felony enhancement addresses
Barnes’ use of a firearm in connection with a felony, and the Official Victim enhancement
concerns the victim’s status as a police officer. Therefore, we hold that the District Court’s
cumulative application of the Additional Felony and Official Victim enhancements under
§§ 2K2.1(b)(6)(B) and 3A1.2(c)(1) is not impermissible double counting.
                                                III.
          The sentence imposed by the District Court was both procedurally and substantively
reasonable. We further conclude that Barnes waived his claim that the District Court improperly
applied the Additional Felony enhancement under § 2K2.1(b)(6)(B), and that the District Court
did not engage in impermissible double counting. We AFFIRM.




                                                -8-
