                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                        OCTOBER 31, 2006
                                    No. 05-12306                        THOMAS K. KAHN
                              ________________________                      CLERK


                         D. C. Docket No. 94-00032-CR-DTKH

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                           versus

JOSEPH ANTHONY HAYES,

                                                                  Defendant-Appellant.


                              ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            _________________________

                                    (October 31, 2006)

Before PRYOR and FAY, Circuit Judges, and STEELE,* District Judge.

PER CURIAM:


       *
        The Honorable William H. Steele, United States District Court for the Southern District
of Alabama, sitting by designation.
      Joseph Anthony Hayes appeals the order of the district court denying his

motion for reduction of sentence. 18 U.S.C. § 3582(c)(2). Hayes was convicted of

possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) (Count I),

possession of firearms during and in relation to that crime, 18 U.S.C. § 924(c)

(Count II), and possession of an unregistered firearm, 26 U.S.C. § 5861(d) (Count

III). The district court found that Amendment 599 of the United States Sentencing

Guidelines, which forecloses a firearms enhancement for criminals convicted of

possessing a firearm during and in relation to certain crimes, 18 U.S.C. § 924(c),

did not apply to Hayes. On appeal, the government concedes that the district court

erred. We reverse and remand.

                                I. BACKGROUND

      In January 1994, Hayes participated in a scheme to rob a “stash house” of

20-30 kilograms of cocaine. An undercover agent with the Bureau of Alcohol,

Tobacco and Firearms posed as a disgruntled drug courier. Immediately before the

robbery, Hayes showed the agent a 9-mm. semi-automatic pistol, and represented

that he and his accomplices had a 12-gauge shotgun in one of the vehicles they

intended to use in the robbery. Hayes requested that the agent follow him as he left

to retrieve the shotgun, but before they reached it, the men were arrested. A 9-mm.

Ruger pistol was found in the car in which Hayes had been traveling, and an



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unregistered sawed-off shotgun was found in Hayes’s own car parked a few blocks

away.

        Hayes was indicted and proceeded to trial, where a jury convicted him on all

counts. At his sentencing, the district court imposed concurrent sentences of 300

months of imprisonment on Count I and 120 months of imprisonment on Count III,

and a consecutive sentence of 60 months of imprisonment on Count II. The 9-mm.

pistols formed the basis of the charge in Count II. The district court used the

shotgun, which formed the basis of the charge in Count III, to enhance Hayes’s

offense level for Count I. See U.S.S.G. § 2D1.1(b)(1) (allowing a two-level

enhancement for possession of a dangerous weapon while trafficking).

        On November 1, 2000, Amendment 599 of the Sentencing Guidelines

became effective and was made retroactive. Amendment 599 modified the

commentary to Sentencing Guideline 2K2.4, which applies to offenses involving

the use of a firearm during or in relation to certain crimes. The amendment

prevents an offense that underlies a section 924(c) offense from being enhanced by

a firearms specification:

              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. A sentence under this guideline

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             accounts for any explosive or weapon enhancement for
             the underlying offense of conviction, including any such
             enhancement that would apply based on conduct for
             which the defendant is accountable under § 1B1.3
             (Relevant Conduct). Do not apply any weapon
             enhancement in the guideline for the underlying offense,
             for example, if (a) a co-defendant, as part of the jointly
             undertaken criminal activity, possessed a firearm
             different from the one for which the defendant was
             convicted under 18 U.S.C. § 924(c); or (B) in an ongoing
             drug trafficking offense, the defendant possessed a
             firearm other than the one for which the defendant was
             convicted under 18 U.S.C. § 924(c).

Amendment 599.

      Based on this amendment, Hayes filed a motion for reduction of sentence,

and argued that the firearms enhancement of the sentence for Count I was

precluded by his conviction on Count II for possessing a firearm during and in

relation to Count I. The district court summarily denied this motion. Hayes

appealed, and this Court remanded to the district court for an explanation of its

ruling. United States v. Hayes, No. 04-12611 (11th Cir. Dec. 20, 2004).

      On remand, the district court stated that Amendment 599 precludes adding a

section 2D1.1(b) enhancement to the offense underlying a section 924(c) charge “if

(1) a co-defendant as part of the jointly undertaken criminal activity, possessed a

firearm different from the one for which the defendant was convicted under 18

U.S.C. § 924(c), or (2) in an ongoing drug trafficking offense, the defendant



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possessed a firearm other than the one for which the defendant was convicted

under 18 U.S.C. § 924(c).” Since Hayes “possessed another gun (the sawed off

shotgun charged in Count 3) that was not in the possession of either co-defendant,”

and since “the defendant’s drug trafficking conspiracy offense of conviction was

not ‘ongoing,’” the amendment did not apply.

                          II. STANDARD OF REVIEW

      “We review a district court’s decision whether to reduce a sentence pursuant

to 18 U.S.C. § 3582(c)(2), based on a subsequent change in the guidelines, for

abuse of discretion.” U.S. v. Brown, 332 F.3d 1341, 1343 (11th Cir. 2003)

(internal quote omitted). “A district court by definition abuses its discretion when

it makes an error of law.” Id. (internal quote omitted).

                                 III. DISCUSSION

      The government concedes on appeal that Amendment 599 applies to Hayes.

We agree. The amendment does not limit its application to the two situations

described by the district court, which are given only as examples of when the

amendment would apply. See Amendment 599 (“Do not apply any weapon

enhancement in the guideline for the underlying offense, for example, if (a) a co-

defendant...possessed a firearm different from the one for which the defendant was

convicted...; or (B) in an ongoing drug trafficking offense, the defendant possessed



                                          5
a firearm other than the one for which the defendant was convicted....” (Emphasis

added.)). The unambiguous language of the amendment provides a general rule to

be applied: “A sentence under this guideline accounts for any explosive or

weapons enhancement for the underlying offense of conviction[.]” Id. (emphasis

added).

          The district court abused its discretion when it erroneously concluded that

Amendment 599 did not apply to Hayes. It is undisputed that Hayes’s sentence for

Count II fell under Sentencing Guideline 2K2.4, and the district court enhanced

Hayes’s sentence for the underlying crime in Count I. Amendment 599 applied in

this circumstance. On remand, the district court must recalculate Hayes’s sentence

under the amended guidelines and then determine, in the light of the sentencing

factors, 18 U.S.C. § 3553(a), whether to reduce Hayes’s sentence.

                                  IV. CONCLUSION

      The denial of Hayes’s motion for reduction of sentence is reversed, and this

action is remanded for future proceedings consistent with this opinion.

      REVERSED and REMANDED.




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