                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1512
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
      v.                                * Appeal from the United States
                                        * District Court for the
Michael Wayne Kenney,                   * Northern District of Iowa
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 16, 2001

                                  Filed: March 18, 2002
                                   ___________

Before HANSEN,1 Chief Judge, and McMILLIAN and BEAM, Circuit Judges.
                               ___________

McMILLIAN, Circuit Judge.

       Michael Wayne Kenney appeals from a final judgment entered in the United
States District Court2 for the Northern District of Iowa sentencing him to 100 months
imprisonment after pleading guilty to one count of possession of firearms as a
convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). See United


      1
       The Honorable David R. Hansen became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on February 1, 2002.
      2
      The Honorable Michael J. Melloy, United States District Judge for the
Northern District of Iowa.
States v. Kenney, No. 1:00CR00033-001 (N.D. Iowa Feb. 15, 2001). For reversal,
Kenney argues that the district court impermissibly double counted by imposing both
a two-level sentencing enhancement pursuant to U.S.S.G. § 2K2.1(b)(4) for the
firearms’ status as stolen property and a four-level sentencing enhancement pursuant
to U.S.S.G. § 2K2.1(b)(5) for the burglary of the firearms. For the reasons discussed
below, we affirm.

                                   Jurisdiction

       Jurisdiction in the district court was proper based upon 18 U.S.C. § 3231.
Jurisdiction in this court is proper based upon 18 U.S.C. § 3742(a). The notice of
appeal was timely filed pursuant to Fed. R. App. P. 4(b).

                                   Background

      The following facts are taken from the stipulations in Kenney's federal plea
agreement. Kenney was a convicted felon prior to November 15, 1997, when he
removed four guns from his father's home. On November 15, 1997, Kenney pawned
one gun, claiming to be its owner. On November 25, 1997, Kenney pawned another
gun, falsely reporting on ATF Form 4473 that he was the owner of the gun and not
a convicted felon. On November 26, 1997, Randy Scott Cousins, who received the
gun from Kenney, pawned a third gun and falsely reported on ATF Form 4473 that
he owned the weapon and was not a convicted felon. On November 29, 1997,
Kenney pawned the fourth gun, falsely claiming to be the owner.

       On January 12, 1998, Kenney's parents, Darrell and Janet Kenney, reported to
police Michael Kenney's forgery and theft of business checks from Darrell Kenney's
barber business. While making the report, Darrell Kenney told the police that he had
noticed that his guns were missing and that his son Michael had admitted taking the
missing guns and pawning them. Michael had also given his father the pawn tickets,

                                         -2-
and Darrell Kenney then retrieved the guns from the pawnshop. As a result of these
actions, on April 16, 1998, Michael Kenney pled guilty to forgery and third degree
burglary offenses in Iowa state court.

      Kenney was separately indicted in the district court on a federal charge of
possession of firearms as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). On October 31, 2000, Kenney entered a guilty plea and the district court
ordered the preparation of a Pre-Sentence Investigation Report (“PSR”). On
February 12, 2001, Kenney filed a sentencing memorandum objecting to the PSR,
which recommended a four-level sentence enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(5), because he had already been assessed a two-level enhancement under
§ 2K2.1(b)(4). Subsection 2K2.1(b)(5) provides, in relevant part, that

      [i]f the defendant used or possessed any firearm or ammunition in
      connection with another felony offense; or possessed or transferred any
      firearm or ammunition with knowledge, intent, or reason to believe it
      would be used or possessed in connection with another felony offense,
      increase by 4 levels.

Subsection 2K2.1(b)(4) provides that "[i]f any firearm was stolen, or had an altered
or obliterated serial number, increase by 2 levels." At sentencing on February 15,
2001, Kenney stipulated to the two-level (b)(4) enhancement because the guns were
stolen. The district court also applied the recommended four-level (b)(5)
enhancement on the ground that the illegally-possessed firearms were used in
connection with another felony offense, namely, the burglary of those firearms from
his parents' house. The district court imposed a sentence of 100 months
imprisonment, a $100 special assessment, and a three-year term of supervised release.




                                         -3-
                                     Discussion

       Kenney argues that the district court impermissibly double counted by
imposing both a four-level enhancement under § 2K2.1(b)(5) for his participation in
the burglary of the firearms and a two-level enhancement under § 2K2.1(b)(4)
because the firearms were stolen property. Specifically, Kenney contends that the
burglary of the firearms does not constitute “another felony offense” for purposes of
applying the (b)(5) enhancement because subsection (b)(4) already fully accounts for
the fact that the firearms were stolen. Kenney urges this court to adopt the reasoning
of other circuit courts which classify the burglary and the fact that the firearms were
stolen as essentially the same crime. See, e.g. United States v. Szakacs, 212 F.3d
344, 352 (7th Cir. 2000) (refusing to allow a (b)(5) enhancement "[b]ecause nearly
every federal weapons offense could be simultaneously charged as a state crime, [so]
allowing the state crime to count as 'another felony offense' renders that term
superfluous; it could just as easily read 'any felony offense'”); United States v.
Sanders, 162 F.3d 396, 399-401 (6th Cir. 1998) (concluding that district court erred
in a factually-similar case in holding that burglary of firearms in addition to
possession of stolen firearms constituted “another felony offense” warranting the
(b)(5) enhancement because that factor had been accounted for already by application
of the (b)(4) enhancement). We decline to adopt this interpretation of the Guidelines.

      We review the district court's application of the sentencing guidelines,
including the permissibility of double counting, de novo. United States v.
Rohwedder, 243 F.3d 423, 425-26 (8th Cir. 2001); see also United States v. Amsden,
213 F.3d 1014, 1015 (8th Cir. 2000).

      “Double counting occurs when 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 of the Guidelines.” Rohwedder, 243
F.3d at 426-27 (citing United States v. Hipenbecker, 115 F.3d 581, 583 (8th Cir.

                                         -4-
1997)). Double counting may be permissible, however, in situations where (1) the
Sentencing Commission intended the result and (2) “each statutory section concerns
conceptually separate notions relating to sentencing.” Id.

      In the present appeal, Kenney argues that the district court assessed the (b)(5)
enhancement for conduct that had already been fully accounted for in the (b)(4)
enhancement. Hence, we must determine whether the alleged double counting was
permissible. In applying the Rohwedder test, we first examine whether the
Commission intended the resultant double counting.

        We turn to the language of the Guidelines and the Application Notes to
understand whether the Commission intended both the (b)(4) and (b)(5)
enhancements to apply to the facts on appeal. See Stinson v. United States, 508 U.S.
36, 38 (1993) (determining that commentary which “interprets or explains a guideline
is authoritative unless it violates the Constitution or a federal statute, or is
inconsistent with, or a plainly erroneous reading of, that guideline”); United States
v. Hendricks, 171 F.3d 1184, 1186 (8th Cir. 1999) (stating that “the official
commentary to the guidelines must be given controlling weight unless it is plainly
erroneous or inconsistent with the guidelines”). We are guided by the Application
Notes to the relevant Guideline, U.S.S.G. § 2K2.1. First, Application Note 19 states
that the (b)(4) enhancement "applies whether or not the defendant knew or had reason
to believe that the firearm was stolen or had an altered or obliterated serial number,"
thus making it clear that the mere fact that the firearm was stolen justifies application
of the (b)(4) enhancement. Second, for purposes of applying the (b)(5) enhancement,
Application Note 18 specifically excludes only three types of offenses when defining
“another felony offense": "offenses other than explosives or firearms possession or
trafficking offenses.” In situations where the Commission consciously enumerates
exclusions from the Guidelines, we may infer that it intended to disallow any
exclusions not mentioned. See United States v. Hawkins, 181 F.3d 911, 912 (8th Cir.
1998) (holding that when the guidelines explicitly disallow double counting in some

                                          -5-
situations, it is implicit that double counting is not disallowed in other situations); see
also United States v. Shepardson, 196 F.3d 306, 312 (2d Cir. 1999) (concluding that,
in situations where the Commission “so painstakingly enumerat[ed] the circumstances
in which [an] enhancement does not apply, [the application note] indicates that the
enhancement should be imposed where those specified criteria are not met”).

       Because § 2K2.1 does not directly address the application of both the (b)(4)
and (b)(5) enhancements, we also examine the general application instructions of the
Guidelines. Normally, when calculating a sentence according to the Guidelines,
"[t]he offense level adjustments from more than one specific offense characteristic
within an offense guideline are cumulative (added together) unless the guideline
specifies that only the greater (or greatest) is to be used." U.S.S.G. § 1B1.1, n.4.
Furthermore, U.S.S.G. § 1B1.3(a) provides that a defendant's base offense level and
specific offense characteristics

      shall be determined on the basis of . . . all acts and omissions committed,
      aided, abetted, counseled, commanded, induced, procured, or willfully
      caused by the defendant . . . that occurred during the commission of the
      offense of conviction, in preparation for that offense, or in the course of
      attempting to avoid detection or responsibility for that offense.

This expansive language indicates that the Commission intended to include
enhancements for every applicable aspect of the criminal conduct, to be added
together cumulatively, unless the Guidelines themselves direct otherwise.

       Following that same logic, we note that the Commission did contemplate the
effects of double counting on the (b)(4) enhancement in U.S.S.G. § 2K2.1, n.12,
which prohibits the (b)(4) enhancement if § 2K2.1(a)(7) applies, but does not mention
the impact of the (b)(5) enhancement on (b)(4). Given that the Commission clearly
considered the ramifications of double counting in one instance of applying the (b)(4)
enhancement, it is unlikely that it simply forgot to address the double counting

                                           -6-
implications of the (b)(5) enhancement. We therefore conclude that the Commission
communicated its intent to allow both the (b)(4) and (b)(5) enhancements to apply to
the same conduct by declining to amend the Guidelines or the Application Notes to
specifically prohibit such application.

       Consequently, we hold that the Commission intended both subsections (b)(4)
and (b)(5) to be applied to firearms possession offenses involving an additional
felony offense other than possession of explosives, possession of firearms, or
trafficking. In the present appeal, the (b)(4) enhancement clearly applies because the
firearms were stolen. Moreover, because Kenney’s burglary offense is not
specifically excluded from consideration, it constitutes “another felony offense” in
addition to the firearms possession offense warranting application of the (b)(5)
enhancement.

       However, for such double counting to be permitted, Rohwedder further
requires us to consider whether each enhancement concerns conceptually separate
notions. 243 F.3d at 426-27. We conclude that the subsections are conceptually
separate. Subsection (b)(4) deals with the stolen nature of the firearms themselves,
regardless of the possessor’s knowledge of or participation in obtaining the stolen
weapons. In contrast, subsection (b)(5) addresses the conduct surrounding the
possession of the firearms, specifically concerning the use or possession of the
firearms in connection with other prohibited conduct. We are persuaded of the
conceptual differences between the two subsections: while (b)(4) punishes for mere
possession, (b)(5) punishes for the participation in another felony offense. Accord
United States v. Turnipseed, 159 F.3d 383 (9th Cir. 1998) (holding that assault
conviction based on same underlying conduct as weapons possession charge
constituted another felony offense warranting application of (b)(5) enhancement in
addition to (b)(4) enhancement); United States v. Armstead, 114 F.3d 504, 512 (5th
Cir. 1997) (finding that the (b)(5) enhancement, in addition to the (b)(4)
enhancement, was proper “in order to appropriately sanction the state crime of

                                         -7-
burglary in connection with [the firearms possession] offense” notwithstanding the
fact that the conduct occurred contemporaneously).3

       We are further persuaded that the two offenses are conceptually separate
because it is possible to be in possession of a stolen firearm without actually having
stolen it. Therefore, it makes sense that the (b)(4) enhancement accounts only for the
stolen nature of the possessed firearm, not the act of stealing it. See United States v.
Hawkins, 181 F.3d 911, 913 (8th Cir. 1999) (explaining that the (b)(4) enhancement
accounts solely for the stolen nature of firearms, which was otherwise not taken into
account by § 2K2.1).

      As a result, we hold that the district court did not impermissibly double count
in applying both the (b)(4) and (b)(5) sentence enhancements.

                                     Conclusion

         For the reasons stated above, we affirm the sentence imposed by the district
court.
         A true copy.

               Attest:

                  CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.


         3
        We distinguish the circumstances of this case from the facts of the Seventh
Circuit’s decision in United States v. Szakacs, 212 F.3d 344 (7th Cir. 2000), in which
the two offenses in question were a state law burglary charge and a federal conspiracy
to steal firearms charge, which are essentially the same charges in different courts.
Id. at 349 (“the state law offense and the federal offense were essentially the same
crime”). In the present appeal, the possession offense is a different kind of crime
from the state law burglary offense.

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