                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-2414
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                             Chrishawn Lloyd Stuckey

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

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

                             Submitted: May 14, 2018
                               Filed: June 28, 2018
                                  [Unpublished]
                                  ____________

Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.
                          ____________

PER CURIAM.

       Chrishawn Stuckey pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). Stuckey appeals his sentence, asserting the district
court1 committed procedural error in applying a sentencing enhancement set forth in
the U.S. Sentencing Guidelines Manual (USSG). We affirm.

       On September 16, 2016, Cedar Rapids, Iowa police officers responded to a call
at a convenience store. The caller reported that a black male had entered the store,
showed her a handgun in his waistband, and stated that he would not shoot her
because she was being decent to him. The caller reported that the individual appeared
to be very intoxicated, and she provided a description of his clothing. Shortly after
responding to the call, officers observed Stuckey, who matched the description given
by the caller, standing on the street. Officers approached Stuckey and found that he
had the smell of an alcoholic beverage on his breath, his speech was slurred, and he
had bloodshot and watery eyes. A loaded .45 caliber handgun was in Stuckey’s
waistband. He was arrested for public intoxication and subsequently tested positive
for marijuana and cocaine. Stuckey was later indicted for one count of being a felon
in possession of a firearm.

       The U.S. Probation Office prepared a presentence report (PSR) that calculated
a base offense level of 14 and recommended a four-level upward adjustment under
USSG § 2K2.1(b)(6)(B) for Stuckey’s possession of a firearm in connection with
another felony offense, namely the Iowa felony offense of carrying weapons in
violation of Iowa Code § 724.4(1). After applying this adjustment and others not in
dispute in this appeal, the PSR determined that Stuckey’s total offense level was 15,
his criminal history category was III, and his advisory sentencing range was 24 to 30
months.

      The district court overruled Stuckey’s objection to the sentencing enhancement
under USSG § 2K2.1(b)(6)(B) and sentenced him to 30 months imprisonment. In this


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

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appeal, Stuckey asserts that application of the enhancement set forth in USSG
§ 2K2.1(b)(6)(B) amounts to impermissible double counting because a violation of
18 U.S.C. § 922(g) always constitutes a violation of Iowa Code § 724.4(1). This
identical argument was asserted and rejected in United States v. Walker:

      Iowa Code § 724.4(1), unlike 18 U.S.C. § 922(g), requires proof that the
      defendant went armed “with a dangerous weapon concealed on or about
      the person,” or went armed with a handgun “within the limits of any
      city,” or “knowingly carrie[d] or transport[ed] [a handgun] in a vehicle.”

771 F.3d 449, 453 (8th Cir. 2014) (alterations in original). Bound by Walker, we
reject this argument.

       Next, Stuckey argues that Walker should be re-examined. As only the en banc
court may overrule a panel opinion, this claim also fails. United States v. ANWAR,
880 F.3d 958, 971 (8th Cir. 2018) (“Only the en banc court has [the] authority to
overrule a prior panel opinion, whether in the same case or in a different case.”
(alteration in original) (internal quotation marks omitted)).

      Finally, Stuckey attempts to factually distinguish Walker by pointing out that
he carried his handgun in his waistband while standing on a street corner, unlike the
defendant in Walker who carried or transported a handgun in his vehicle. Stuckey
does not explain why this factual distinction is significant, and we find that it is not
because a violation of § 922(g) does not require proof of either of these factual
scenarios. See 18 U.S.C. § 922(g); Walker, 771 F.3d at 453.

      The judgment of the district court is affirmed.




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GRASZ, Circuit Judge, with whom MELLOY, Circuit Judge, joins, concurring.

       I agree we are bound by United States v. Walker, 771 F.3d 449 (8th Cir. 2014).
I write separately because I believe Walker was incorrectly decided. As expressed by
Judge Melloy and Judge Bye in prior cases dealing with this issue, “because 18 U.S.C.
§ 922(g)(1) and Iowa Code § 724.4(1) require essentially the same conduct, applying
a sentencing enhancement based on the Iowa offense constitutes impermissible
double-counting.” United States v. Boots, 816 F.3d 971, 976 (8th Cir. 2016) (Melloy,
J., concurring) (citing United States v. Sanford, 813 F.3d 708, 714-17 (8th Cir. 2016)
(Bye, J., concurring)).

       I recognize the Iowa law technically has additional elements beyond the federal
offense. See United States v. Maldonado, 864 F.3d 893, 901-02 (8th Cir. 2017)
(explaining that in addition to possessing the firearm, the Iowa law requires that the
defendant conceal the weapon, or be armed with a handgun within city limits, or
knowingly carry or transport a handgun in a vehicle), cert. denied, 138 S. Ct. 702
(2018). Yet, the reality is that most felons in possession of a firearm will inevitably
violate one of those requirements. Here, for example, Stuckey violated Iowa’s law
because he possessed a firearm within the city limits of Cedar Rapids.

      In my view, the sentence enhancement set forth in USSG § 2K2.1(b)(6)(B)
should not be available in circumstances such as this, where Stuckey’s act of
possessing the firearm in violation of federal law is inextricably entwined with his act
of possessing a firearm within city limits in violation of Iowa law. Increasing
Stuckey’s sentence “because he was present in a city rather than in the country . . .
does not further the purpose of the ‘other felony’ enhancement, and I find it hard to
believe the Sentencing Commission would have intended such a result either.”
Sanford, 813 F.3d at 718 (Bye, J., concurring).

      I would urge the Court, sitting en banc, to reconsider the holding in Walker.
                      ______________________________



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