                  UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT


                          __________________

                              No. 92-8387
                           Summary Calendar
                          __________________



     UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

                                   versus

     JOHN SIMON GONZALES,

                                             Defendant-Appellant.

         ______________________________________________

      Appeal from the United States District Court for the
                    Western District of Texas
         ______________________________________________

                            (July 12, 1993)


Before GARWOOD, JONES and EMILIO M. GARZA Circuit Judges.

GARWOOD, Circuit Judge:

     Appellant,   Juan    "John"     Simon   Gonzales   (Gonzales),   was

convicted, on his guilty plea pursuant to a plea agreement, of one

count of possession of a firearm by a convicted felon in violation

of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court sentenced

Gonzales to a term of imprisonment of 120 months, a 3 year term of

supervised release, and imposed a $50,000 fine and a $50 special

assessment.   Gonzales now appeals his sentence.

                    Facts and Proceedings Below

     The evidence submitted in support of Gonzales's sentence
revealed the following.          On February 28, 1991, Gonzales purchased

a .38 caliber Rossi Model 88 revolver (the Rossi) at a retail store

in Austin, Texas.        In order to purchase the weapon, he falsified

the required ATF form by stating that he had never been convicted

of an offense punishable by a term of imprisonment of more than one

year.1     Gonzales gave the Rossi to his brother, Marcelo Gonzales

(Marcelo), who was not old enough to purchase a weapon.                     Gonzales

purchased     the   firearm      for    Marcelo       because   Marcelo    had   been

assaulted and could use the weapon for protection.

      Between February 28 and March 5, 1991, someone stole a stereo

system     from   Marcelo's   car.           Gonzales,    his   stepbrother      David

Madrigal (Madrigal), and Marcelo believed that the culprit was one

Robert Bettelyoun (Bettelyoun).               Gonzales and Madrigal concocted a

plan to get back Marcelo's stereo and to teach Bettelyoun a lesson.

On March 5, 1991, they drove Marcelo to his apartment in order for

him   to   get    the   Rossi.         The    three    brothers    then    waited   at

Bettelyoun's      residence      for    him      to   arrive.     Around   midnight,

Bettelyoun returned from work, and the three brothers kidnapped him

at gunpoint, and forced him into a car which Madrigal drove.

Marcelo sat in the front, and Gonzales and Bettelyoun sat in the

back. During the kidnapping, Madrigal carried a nickel-plated .380

pistol and Marcelo carried the Rossi.2



1
     Gonzales had previously been convicted of the separate
offenses of burglary of a vehicle and aggravated assault with a
deadly weapon. Both offenses were felonies punishable by a term
of imprisonment of more than one year.
2
     Madrigal also had a .22 with a 27-round clip in the backseat
of the car, and a .12-gauge shotgun in the trunk.

                                             2
     While driving, Madrigal relinquished his pistol to Gonzales

who leveled the gun barrel against Bettelyoun's forehead and told

him that he better reveal the whereabouts of Marcelo's stereo

system. Gonzales then took Bettelyoun's necklace, watch, and money

from his wallet.   Madrigal drove for about thirty minutes before

pulling into a rest area.     He and Marcelo exited the car, as

Gonzales, identified by Bettelyoun as "the big guy," interrogated

him about the location of the stereo system.   Marcelo and Madrigal

then reentered the car, and were also questioning Bettelyoun, when

a highway patrolman drove up behind Madrigal's car.     The officer

instructed the occupants to exit the car, and as Madrigal stepped

out from the vehicle, he shot and killed the officer.    The three

brothers then returned Bettelyoun to his home.   Madrigal sought to

flee to Mexico but he was apprehended the next day in San Antonio,

Texas, after a gun battle with a police officer.

     On September 3, 1991, a grand jury returned a two-count

indictment against Gonzales for making a false statement in order

to purchase a firearm in violation of 18 U.S.C. §§ 922(a)(6),

924(a)(1)(B) (Count One); and with receipt of a firearm by a

convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2)

(Count Two).   Both counts concerned Gonzales's purchase of the

Rossi on February 28, 1991.   On March 24, 1992, Gonzales entered

into a plea agreement whereby in return for entering a guilty plea

to Count Two, the government would dismiss Count One.

     The probation officer then prepared the Presentence Report

(PSR), and computed Gonzales's sentence according to the sentencing



                                3
guidelines.3         The   officer    calculated    Gonzales's      base   offense

initially from U.S.S.G. § 2K2.1 which is the guideline for receipt

of a firearm by a convicted felon.             The officer then applied the

cross   reference      under   section    2K2.1(c)(1)    which      requires   the

application of section 2X1.1 if the firearm was used or possessed

in connection with the commission or attempted commission of

another offense.       Section 2X1.1(a) mandates that the base offense

level is derived from "the guideline for the substantive offense,

plus any adjustments from such guideline for any intended offense

conduct that can be established with reasonable certainty."                    Id.

Here, the probation officer determined that Gonzales's substantive

offense was kidnapping.        Under section 2A4.1, the section covering

kidnapping, the base offense level is twenty-four.               Using twenty-

four as a benchmark, the officer then included a two-level increase

for   use   of   a    dangerous      weapon   as   provided   for    by    section

2A4.1(b)(3). He then deducted one level since the kidnapped victim

was released within twenty-four hours as provided for in section

2A4.1(b)(4).         The officer then applied section 3A1.2(b) which

provided a three-level enhancement if a law enforcement officer was

assaulted in a manner creating a substantial risk of serious bodily

injury.     Finally, the officer gave Gonzales a two-level downward

adjustment for acceptance of responsibility under section 3E1.1(a).

Therefore, Gonzales's total offense level was twenty-six.                   With a

criminal history category of V, the sentencing range was 110-137


3
     The applicable version of the sentencing guidelines is the
one in effect on July 10, 1992, the date on which Gonzales was
sentenced, 18 U.S.C. § 3553(a)(4), namely the 1991 edition of the
Federal Sentencing Guidelines Manual.

                                         4
months.

      Gonzales objected to the PSR, arguing that the probation

officer should not have used the cross reference to section 2X1.1;

that if this section were used, he should not have been charged

with a two-level increase for use of a deadly weapon per section

2A4.1(b)(3); and that he should not have received a three-level

increase for assaulting a law-enforcement officer per section

3A1.2(b). The district court overruled his objections, adopted the

PSR's recommendations, and sentenced Gonzales to 120 months, the

statutory maximum under 18 U.S.C. § 924(a)(2).                  The district court

also sentenced him to a three-year term of supervised release, and

imposed a $50,000 fine and a $50 special assessment.                 Gonzales now

appeals his sentence.

                                   Discussion

      Gonzales raises basically the same three issues on appeal as

he   did   below.    First,   he    complains        that   the    district   court

improperly applied the cross reference section 2K2.1(c)(1).                   Also,

Gonzales argues that the district court improperly enhanced his

base offense level for assaulting a law enforcement official under

section 3A1.2(b).     Finally, Gonzales argues that he was placed in

double jeopardy when the district court enhanced his base offense

level for use of a deadly weapon during the kidnapping.

      Gonzales's    complaints     are       based   on   the    district   court's

allegedly improper application of the sentencing guidelines.                   This

court will "uphold the district court's sentence so long as it

results from a correct application of the guidelines to factual

findings which are not clearly erroneous."                      United States v.

                                         5
Sarasti, 869 F.2d 805, 806 (5th Cir. 1989); see 18 U.S.C. §

3742(e)(2).     We   review   de   novo   the   district   court's   legal

conclusions with respect to the guidelines.        Id.; United States v.

Suarez, 911 F.2d 1016, 1018 (5th Cir. 1990).

A.   Cross Reference Section 2K2.1(c)(1) and Relevant Conduct

     Gonzales first argues that his base offense level should not

have been calculated from the guideline concerning the offense of

aggravated kidnapping but from the guideline for the offense with

which he was chargedSQreceipt of a weapon by a convicted felon.4

He contends that the cross reference in section 2K2.1(c)(1) to

section 2X1.1 is limited by section 1B1.3(a) concerning the general

definition of relevant conduct.         According to Gonzales, section

1B1.3(a) dictates that a cross reference can be used only for acts

committed during, or reasonably foreseeable to, the offense of

conviction.5   Therefore, because the receipt of the Rossi and the

kidnapping were not part of the same scheme or plan, and the Rossi



4
     Under the guideline for the receipt of a firearm by a
convicted felon, without cross referencing to any other
guideline, the base offense level is twelve. U.S.S.G. §
2K2.1(a)(7). This application would result in a significantly
shorter sentence than the one assessed.
5
     Section 1B1.3(a) provides in pertinent part that:

     "Unless otherwise specified . . . cross references in
     Chapter Two . . . shall be determined on the basis of
     the following:

          (1) all acts and omissions committed or
          aided and abetted by the defendant, or for
          which the defendant would be otherwise
          accountable, that occurred during the
          commission of the offense of conviction . . .
          ." Id.


                                    6
was purchased with no intent for it to be used in the latter

offense, the presence of the Rossi during the aggravated kidnapping

was merely "fortuitous" and not foreseeable.

       We agree that the aggravated kidnapping was not relevant

conduct in connection with Gonzales's charged offense of receipt of

the Rossi.     However, we disagree with the assertion that in this

case    section    1B1.3    restricts      the   application   of    section

2K2.1(c)(1).

       Section 1B1.3 applies to cross references in Chapter Two

"[u]nless otherwise specified."           U.S.S.G. § 1B1.3(a).      "Since §

1B1.3(a) requires that relevant conduct be applied to determine

cross references 'unless otherwise specified,' we must decide

whether this cross reference requires the application of relevant

conduct or specifies otherwise."           United States v. Jennings, 991

F.2d 725, -- (11th Cir. 1993).            Section 2K2.1(c)(1) provides in

pertinent part:

       "If the defendant used or possessed any firearm or
       ammunition in connection with the commission or attempted
       commission   of   another  offense,   or   possessed   or
       transferred a firearm or ammunition with knowledge or
       intent that it would be used or possessed in connection
       with another offense, applySQ

            (A)    § 2X1.1 (Attempt, Solicitation, or
            Conspiracy) in respect to that other offense,
            if the resulting offense level is greater than
            that determined above . . . ." Id.

The language of section 2K2.1(c)(1) in no way suggests that it is

limited to the offenses that the defendant intended to commit upon

receipt or possession of the particular weapon in the charged

offense.     Rather, the broad language of section 2K2.1(c)(1),

particularly      its   unlimited   references    to   "another     offense,"

                                      7
indicates that it is not restricted to offenses which would be

relevant conduct but embraces all illegal conduct performed or

intended by defendant concerning a firearm involved in the charged

offense.6   Therefore, the district court did not err in applying

section 2K2.1(c)(1) irrespective of the relevant conduct strictures




6
     We note that section 2K2.1(c)(1) literally includes not only
offenses in which the firearms specified in the charged offense
were used or possessed, but "any" weapons used or possessed in
the other offenses. Id. It appears to us that these firearms
must at least be related to those in the charged offense. If the
word "any" were read literally, section 2K2.1(c)(1) would apply
even though the weapon involved in the other offense had
absolutely no relation to that specified in the charged offense.
Such a reading would have section 2K2.1(c)(1) apply, for example,
to a weapon used by the defendant in a robbery committed months
before he ever acquired the weapon specified in the offense of
conviction. The overall context of section 2K2.1, however,
militates against such an expansive reading of "any firearm."
Thus, section 2K2.1(b)(4), which provides for a two level
increase if "any firearm was stolen," obviously is not intended
to apply to firearms wholly unrelated to the charged offense. We
do not suggest that the "firearm" referenced in section
2K2.1(c)(1) would not include a firearm which though not
specified in the count of conviction was nevertheless part of its
relevant conduct. However, we need not (and do not) decide these
questions because the district court here specifically found that
Gonzales possessed the Rossi in the kidnapping and Gonzales does
not challenge this finding on appeal.
     The district court noted that although Marcelo held the
Rossi during the kidnapping and Gonzales never touched it, the
gun was only a foot and a half away from Gonzales, and was
therefore within his easy reach during the offense, and was
constructively possessed by him. The evidence also showed
Gonzales was the leader of the group. We would further add that
the district court's finding was not erroneous because the
undisputed facts show that Gonzales, Madrigal, and Marcelo acted
together as co-conspirators in the kidnapping; and Marcelo's
possession of the Rossi is thus imputed to Gonzales. See United
States v. Pinkerton, 66 S.Ct. 1180 (1946); United States v.
Elwood, No. 92-3235, 1993 WL 195348, at *4 (5th Cir. June 9,
1993) (upholding determination that defendant was liable as a co-
conspirator for the possession/use of firearms by other co-
conspirators).


                                8
contained in section 1B1.3.7

B.   Enhancement for Assault of a Law Enforcement Official

     Gonzales contends that even if the aggravated kidnapping

guideline is the proper one for calculating his base offense level,

he still should not have been given a three-level increase under

section 3A1.2(b) for assaulting a law enforcement official in a

manner creating a substantial risk of serious bodily injury.8    He

contends, in a slight variation from his first argument, that the

provisions of Chapter Three of the guidelines are subject to the

relevant conduct restrictions of section 1B1.3.   Gonzales rightly

points out that section 3A1.2(b) is applicable only if the harm to

the law enforcement official occurred "during the course of the

offense." Id.   Gonzales contends that the "offense" referred to is

the offense of conviction and since the kidnapping was not related

to the receipt of the Rossi, the assault of the police officer

covered in section 3A1.2(b) does not concern relevant conduct.

     We agree that section 3A1.2(b) is subject to the relevant

conduct restrictions of section 1B1.3.      See United States v.

Kleinebreil, 966 F.2d 945, 954 (5th Cir. 1992) (holding "that


7
     Such an application results in a higher offense level, but
this is exactly what the guidelines intended. United States v.
Pologruto, 914 F.2d 67, 70 (5th Cir. 1990).

8
     Section 3A1.2(b) provides for a three-level increase if:

     "during the course of the offense or immediate flight
     therefrom, the defendant or a person for whose conduct
     the defendant is otherwise accountable, knowing or
     having reasonable cause to believe that a person was a
     law enforcement or corrections officer, assaulted such
     officer in a manner creating a substantial risk of
     serious bodily injury." Id.

                                 9
adjustments for the victim's status are to be determined on the

basis of all relevant conduct, as defined in U.S.S.G. § 1B1.3").

However, the "offense" referred to in section 3A1.2(b) refers to

the   base    level       offense   used    in     calculating    the     defendant's

sentence, and not necessarily the charged offense.                         See United

States v. Padilla, 961 F.2d 322, 326-27 (2d Cir. 1992) (upholding

the application of section 3A1.2(b) to the base level offense

calculated from a cross reference, which was not the charged

offense).     Only if the charged offense and the base level offense

are one and the same will a section 3A1.2(b) adjustment be assessed

based on the relevant conduct surrounding the charged offense.

Here, the base level offense was aggravated kidnapping so section

1B1.3 applies to the relevant conduct concerning the kidnapping.

      Gonzales also argues that the death of the law enforcement

official     was    not    relevant      conduct    surrounding     the    aggravated

kidnapping either because Madrigal's shooting of the officer was an

"independent        impulse"       and    was    therefore    not     a    reasonably

foreseeable consequence of the kidnapping. However, the commentary

to section 1B1.3 describes as relevant conduct for which the

defendant is accountable a situation where a getaway driver in an

armed bank robbery in which a teller is injured is convicted of the

robbery only and yet "is accountable for the injury inflicted

because he participated in concerted criminal conduct that he could

reasonably foresee might result in the infliction of injury."

U.S.S.G. § 1B1.3, comment. (n.1b). Here, the circumstances clearly

demonstrate        that   injury    to    another    person   might       well   occur.

Gonzales participated in the concerted criminal conduct of an

                                           10
aggravated kidnapping, during which the victim was kidnapped at

gunpoint and repeatedly threatened, and Gonzales himself threatened

the victim with a gun.                As with the driver in the foregoing

example, although Gonzales did not cause the injury, the district

court could properly find that it was reasonably foreseeable from

the circumstances surrounding the offense that such an injury might

well occur.     Therefore, the district court did not err in applying

section     3A1.2(b)   to    the        base    level    offense     of   aggravated

kidnapping.

C.   Double Jeopardy

     Finally, Gonzales argues that the district court should not

have enhanced his base offense level under section 2A4.1(b)(3)

because such an application violated the double jeopardy clause of

the Fifth Amendment.             He contends that by invoking the cross

reference      under   section         2K2.1(c)(1),      he   was    penalized    for

possessing a firearm during the kidnapping because his base offense

level was increased from level twelve for the original charged

offense   of    receipt     of    a     firearm    to    level      twenty-four   for

kidnapping.      He argues that to increase his base offense level

again by two levels under section 2A4.1(b)(3) for using a dangerous

weapon during the kidnapping would amount to double counting.

     We first note that even assuming that the application of the

sentencing      guidelines        in     this     case    could      be   accurately

characterized as double counting, such an application would not

necessarily violate the double jeopardy clause.                     Here there was a

single prosecution, and in such a case, at least if the sentence is

within the legislatively intended limits, "cumulative punishment is

                                           11
always consistent with the double jeopardy clause, provided there

is but a single trial."         United States v. Masters, 978 F.2d 281,

285 (7th Cir. 1992) (Easterbrook, J.) (citing to Missouri v.

Hunter, 103 S.Ct. 673 (1983); Albernaz v. United States, 101 S.Ct.

1137, 1144-45 (1981)).

      The application of the guidelines here do not result in

impermissible    double      counting.        Not       all   double   counting      is

prohibited by the guidelines.        See United States v. Patterson, 947

F.2d 635, 637 (2nd Cir. 1991); United States v. Rocha, 916 F.2d

219, 243 (5th Cir. 1990).         In Rocha, the defendants claimed that

the district court had erred in increasing their base offense level

for kidnapping by both the enhancement for a ransom demand and for

the offense of extortion.        They asserted that these two increases

involved the same conduct and to apply both of them would result in

double counting.        Id. at 242-43.             We rejected this contention

noting that "the Sentencing Guidelines are explicit when double

counting is forbidden."       Id. at 243.          Therefore, under the rule of

statutory    construction that "[t]he expression of one thing is the

exclusion of another," we held that only if the guideline in

question expressly forbids double counting, would such double

counting be impermissible.         Id. n.35.            We then found that "there

are   no   exceptions   in    section    2A4.1       to    the    enhancement   of    a

defendant's    base   offense    level       for    a    ransom    demand   when   the

defendant's base offense level is enhanced for the facilitation of

extortion, even if both specific offense characteristics involve

the same conduct.       We must presume therefore that the Sentencing

Commission intended that a defendant's base offense level could be

                                        12
enhanced under section 2A4.1 both for a ransom demand and again for

the offense of extortion."      Id. at 244.    Similarly, here the

sentencing guidelines do not expressly forbid the enhancement of

Gonzales's base offense level for use of a weapon when his base

offense level has already been enhanced for possessing a weapon in

the commission of an offense.    Therefore, the district court did

not err in applying section 2A4.1(b)(3) after it had already

applied section 2K2.1(c)(1) for essentially the same conduct.   See

United States v. Vickers, 891 F.2d 86, 88 (5th Cir. 1989) (holding

that a court may enhance a defendant's sentence under more than one

guideline section or subsection even though the two enhancements

are for essentially the same conduct).

                             Conclusion

     Gonzales has failed to show any reversible error was committed

by the district court below.    Accordingly his conviction is

                                                          AFFIRMED.




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