                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 14 2000
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                      No. 99-3110
          v.                                                D. Kan.
 ANDRE D. NEWMAN,                               (D.C. No. 98-40063-01-DES)

               Defendant-Appellant.


                            ORDER AND JUDGMENT          *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.




      The appellant, Andre D. Newman, pleaded guilty to violations of the

following federal statutes: 18 U.S.C. § 1951, for the robbery of Kolebar Retail

Liquor store (count 1); 18 U.S.C. § 1951, for the robbery of Spirit Liquor (count

3); 18 U.S.C. § 924(c), for use and carrying of a firearm during and in relation to

the robbery of Spirit Liquor as charged in count 3 (count 4); and 18 U.S.C. §




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1951, for conspiracy to commit armed robberies (count 5).    1
                                                                 The district court

imposed a five-level enhancement pursuant to USSG. § 2B3.1(b)(2)(C) for

brandishing, displaying or possession of a firearm during the commission of the

robbery charged in count 1 of the superseding indictment.

         Mr. Newman contends that both his conviction and sentence violate the

Double Jeopardy Clause of the Fifth Amendment. This contention is without

merit.

         The Double Jeopardy Clause of the Fifth Amendment states “no person . . .

shall . . . be subject to the same offense to be twice put in jeopardy of life or

limb.” U.S. Const. amend. V. A defendant bears the burden of proving double

jeopardy. See United States v. Rodriguez-Aguirre     , 73 F.3d 1023, 1025 (10th Cir.

1996). This court reviews a district court’s factual findings underlying a double

jeopardy claim for clear error.   See id. at 1024-25. However, we review legal

determinations regarding double jeopardy de novo.      See id. at 1025.

         First, Mr. Newman argues that his federal prosecution was barred by the

Double Jeopardy Clause because prosecution for the same criminal conduct was

initially commenced in Kansas state court. This argument fails because the state

court proceedings were dismissed on motion by the state after federal prosecution




        Pursuant to the plea agreement, the government agreed to dismiss counts
         1

2 and 6. See Rec., doc. 76.

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was commenced in the United States District Court for the District of Kansas.

Under Kansas state law, jeopardy never attached.     See Kan. Stat. Ann. § 21-

3108(1)(c).

         Further, even if jeopardy had attached in the state court proceeding,

prosecution of the same criminal conduct by both national and state sovereignties

does not constitute double jeopardy.    See United States v. Lanza , 260 U.S. 377,

382 (1922). It is well established that “prosecutions undertaken by separate

sovereign governments, no matter how similar they may be in character, do not

raise the specter of double jeopardy as that constitutional doctrine is commonly

understood.” United States v. Trammell , 133 F.3d 1343, 1349 (10th Cir. 1998)

(quoting United States v. Guzman , 85 F.3d 823, 826 (1st Cir. 1996)).

         Second, Mr. Newman contends that application of the five-level sentence

enhancement under USSG § 2B3.1(b)(2)(C) constitutes impermissible double

counting and, therefore, violates double jeopardy. This contention also lacks

merit.

         An enhancement under USSG § 2B3.1(b)(2)(C) generally cannot be

applied to an offense that is also the underlying offense for a conviction under 18

U.S.C. § 924(c).    See USSG § 2K2.4, comment. (n.2). Here, Mr. Newman was

convicted of two counts of robbery. The enhancement under § 2B3.1(b)(2)(C)

was applied to Mr. Newman’s conviction of the robbery charged in count 1.


                                           -3-
However, the count 3 robbery, not the count 1 robbery, served as the underlying

offense for Mr. Newman’s conviction under 18 U.S.C. § 924(c). Therefore,

application of the enhancement to the count 1 robbery was permissible.    See

United States v. Blake , 59 F.3d 138, 139 (10th Cir. 1995).    Accordingly, we

AFFIRM Mr. Newman’s conviction and sentence.



                                        Entered for the Court,



                                        Robert H. Henry
                                        Circuit Judge




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