            Case: 18-12600       Date Filed: 01/23/2019   Page: 1 of 12


                                                              [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-12600
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 4:16-cr-00353-WTM-GRS-3



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,


                                       versus

DESHAWN REILLY,
a.k.a. Dushawn Reilly,
a.k.a. Leo Hurtault,
a.k.a. Charles Edward Wheeler,

                                                               Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                        ________________________

                                 (January 23, 2019)
              Case: 18-12600    Date Filed: 01/23/2019    Page: 2 of 12


Before MARCUS, WILSON, and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Deshawn Reilly appeals his 200-month sentence after pleading guilty to

conspiracy to possess with intent to distribute, and to distribute, 100 kilograms or

more of marijuana. Reilly argues that the district court erred in calculating his

Guideline range because it considered conduct that served as the basis for

enhancements to a sentence he received in a previous conviction for possession of

a firearm by a convicted felon, resulting in violations of the Double Jeopardy

Clause and impermissible double counting. We disagree and affirm.

                     I.    Factual and Procedural Background

      A. Northern District of Georgia Conviction

      In June 2014, Reilly was indicted by a federal grand jury in the Northern

District of Georgia. The indictment alleged, among other things, that Reilly, a

convicted felon, unlawfully possessed firearms. In October 2014, Reilly pleaded

guilty to the felon in possession of a weapon charge. The Presentence

Investigation Report (PSI) reflected a base offense level of 22 under the U.S.

Sentencing Guidelines pursuant to § 2K2.1(a)(3), and a two-level enhancement for

possession of 3 to 5 firearms, § 2K2.1(b)(1)(A), a four-level enhancement for

possessing firearms in connection with a felony drug conspiracy, § 2K2.1(b)(6)(B),

and a two-level enhancement for being an organizer, leader, or manager of the


                                          2
             Case: 18-12600     Date Filed: 01/23/2019   Page: 3 of 12


criminal activity, § 3B1.1(c). Additionally, Reilly received a two-level reduction

for accepting responsibility. Overall, he faced an advisory Guideline range of 100

to 125 months.

      In April 2016, after several sentencing hearings, the district court judge

sentenced Reilly to 100 months’ imprisonment. We affirmed that conviction and

sentence. See United States v. Reilly, 682 F. App’x 766 (11th Cir. 2017) (per

curiam).

      B. Southern District of Georgia Conviction

      In December 2016, Reilly was indicted in the Southern District of Georgia

and charged with conspiring to possess with intent to distribute, and to distribute,

1,000 kilograms or more of marijuana (Count 1) and conspiring to launder monetary

instruments (Count 2). Reilly pleaded guilty to the lesser offense of Count 1:

conspiring to possess with intent to distribute, and to distribute, 100 kilograms or

more of marijuana in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841 (b)(1)(B).

      Based on the PSI, the Sentencing Guidelines provided a total offense level of

37, which included a two-level increase for possessing several firearms in

furtherance of the drug offense, U.S.S.G. § 2D1.1.(b)(1), a two-level increase for

maintaining premises in Atlanta for the purpose of distributing marijuana,

§ 2D1.1(b)(12), and a four-level increase because he was an organizer or leader of




                                         3
              Case: 18-12600     Date Filed: 01/23/2019    Page: 4 of 12


criminal activity involving five or more people, § 3B1.1(a). The total offense level

also included a three-point reduction for accepting responsibility.

      In the relevant conduct section of the PSI, Reilly’s probation officer recounted

facts surrounding Reilly’s Northern District of Georgia conviction, including how

Reilly recruited his girlfriend to buy a firearm on his behalf and details regarding the

firearms, marijuana, and large sums of money seized from Reilly’s house. Notably,

however, when calculating Reilly’s criminal history score, the probation officer did

not add points for the Northern District of Georgia conviction, stating that the federal

conviction was related to the instant offense. Accordingly, Reilly’s criminal history

earned him only seven criminal history points, warranting a criminal history

category of IV. Because of the total offense level of 37 and the criminal history

category of IV, the advisory range of imprisonment was 292 to 365 months.

      Reilly made six objections to the PSI. In Objections 1 and 2, he claimed that

the firearm and leadership-role enhancements amounted to impermissible double

counting because the Guideline range for his firearm conviction in the Northern

District of Georgia included enhancements for having the firearms in relation to the

same drug conspiracy charged here, and included a two-point increase for his

leadership role. In Objection 3, Reilly argued that the same two enhancements

violated the Double Jeopardy Clause because he was being punished for the same

conduct he was punished for in the Northern District of Georgia. In Objection 4,


                                           4
              Case: 18-12600     Date Filed: 01/23/2019   Page: 5 of 12


Reilly argued that his Guidelines calculation was based on impermissible double

counting because the district court in the Northern District of Georgia applied a

sentencing enhancement under § 2K1.1(b)(3)(B)—for possessing a firearm in

connection with a felony—while the district court here was set to impose the same

type of enhancement under § 2D1.1. In support of this claim, Reilly cited United

States v. Burrell for the proposition that the imposition of enhancements under

§ 2K2.1 and § 2D1.1 can result in impermissible double counting. 662 F. App’x

889, 894–95 (11th Cir. 2016) (per curiam). In Objection 5, Reilly alleged that his

criminal history was overstated because one of his earlier felony convictions—

though accurately calculated—was later reduced to a misdemeanor. Finally, based

on the culmination of his previous objections, Reilly argued in Objection 6 that his

Guideline range was miscalculated, and his adjusted range should be between 136

and 168 months. The district court overruled each of Reilly’s objections and

sentenced him to 200 months’ imprisonment.

                               II. Double Jeopardy Claim

      We review de novo an alleged violation of the Double Jeopardy Clause.

United States v. McIntosh, 580 F.3d 1222, 1226 (11th Cir. 2009). In Blockburger

v. United States, the Supreme Court addressed the question of whether convictions

for two offenses, arising under distinct statutory provisions, violated double

jeopardy principles and, in reaching its determination, established the following


                                          5
              Case: 18-12600     Date Filed: 01/23/2019   Page: 6 of 12


test: “where the same act or transaction constitutes a violation of two distinct

statutory provisions, the test to be applied to determine whether there are two

offenses or only one, is whether each provision requires proof of a fact which the

other does not.” 284 U.S. 299, 304 (1932). The Double Jeopardy Clause applies

both to successive prosecutions and to successive punishments for the same

offense. Witte v. United States, 515 U.S. 389, 395–96 (1995). Under the

Blockburger test, a court must examine whether “each offense contains an element

not contained in the other; if not, they are the ‘same offense’ and double jeopardy

bars additional punishment and successive prosecution.” United States v. Dixon,

509 U.S. 688, 696 (1993).

      To prove conspiracy, the government must establish that an agreement to

commit a crime existed between two or more people, the defendant had knowledge

of at least the essential objectives of the agreement, and he voluntarily joined the

illegal venture. United States v. Battle, 892 F.2d 992, 999 (11th Cir. 1990) (per

curiam). To establish possession with intent to distribute a controlled substance,

the government must prove knowledge, possession, and intent to distribute. United

States v. Camacho, 233 F.3d 1308, 1317 (11th Cir. 2000). To establish that a

defendant was a felon in possession of a firearm, the government must prove that a

defendant was a convicted felon, he was in possession of a firearm, and the firearm




                                          6
             Case: 18-12600     Date Filed: 01/23/2019   Page: 7 of 12


was in or affecting interstate commerce. United States v. Deleveaux, 205 F.3d

1292, 1296–97 (11th Cir. 2000).

      Reilly’s argument that the district court violated principles of double

jeopardy is unpersuasive. Under the Blockburger test, to establish a double

jeopardy violation, Reilly would need to prove that being a felon in possession of a

firearm and conspiracy to distribute a controlled substance contain the same

elements. Blockburger, 284 U.S. at 304; Dixon, 509 U.S. at 696–97. Reilly has

not made such an argument and, in any event, the two offenses each contain an

element that the other does not, compare Battle, 892 F.2d at 999, and Camacho,

233 F.3d at 1317, with Deleveaux, 205 F.3d at 1296–97. The district court

therefore did not err in determining that Reilly’s sentence was not barred by

principles of double jeopardy. See McIntosh, 580 F.3d at 1226.

      Furthermore, in Witte, the Supreme Court addressed whether a court violates

the Double Jeopardy Clause by convicting and sentencing a defendant for a crime

when the conduct underlying that offense has been considered in determining the

defendant’s sentence for a previous conviction. Witte, 515 U.S. at 391. The Court

held that using evidence of related criminal conduct to enhance a defendant’s

sentence for a separate crime does not constitute punishment for that conduct

within the meaning of the Double Jeopardy Clause. Id. at 399–404; see also

United States v. Carey, 943 F.2d 44, 46 n.4 (11th Cir. 1991) (noting that, although


                                         7
             Case: 18-12600       Date Filed: 01/23/2019   Page: 8 of 12


consideration of such criminal conduct has the practical effect of penalizing the

defendant for that conduct, it does not constitute punishment for purposes of

double jeopardy because the defendant is only being punished for the instant

offense, which is made more serious by the defendant’s other criminal conduct).

                           III.     Double Counting Claim

      We review a claim of double counting de novo. United States v. Dudley,

463 F.3d 1221, 1226 (11th Cir. 2006). “Impermissible double counting occurs

only 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.” Id. at 1226–27 (quotation marks

omitted). We “presume that the Sentencing Commission intended separate

Guideline sections to apply cumulatively, unless specifically directed otherwise.”

Id. at 1227 (quotation marks omitted). Double counting a factor is permissible if

the Sentencing Commission intended that result and each Guideline section

concerns conceptually separate notions related to sentencing. Id.

      In Witte, the Supreme Court noted that much of the defendant’s argument—

like Reilly’s argument here—should not be characterized as a Double Jeopardy

violation claim, but as “the more modest contention that he should not receive a

second sentence under the Guidelines for the [later] activities that were considered

as relevant conduct for the [earlier] sentence.” Witte, 515 U.S. at 404. The Court


                                           8
             Case: 18-12600      Date Filed: 01/23/2019   Page: 9 of 12


noted that the Sentencing Guidelines addressed the potential unfairness of having a

second sentence enhanced for factors that were considered as relevant conduct in a

prior sentencing. Id. Specifically, the Court noted that the concept of relevant

conduct under the Sentencing Guidelines was reciprocal and that U.S.S.G. § 5G1.3

mitigated the possibility that two prosecutions would grossly increase a

defendant’s sentence by requiring that the sentence resulting from an offense that

was fully taken into account as relevant conduct in the later offense be imposed

concurrently to the undischarged term of imprisonment. Id. at 404–05.

      Section 1B1.3 of the Sentencing Guidelines states that relevant conduct

includes “all acts and omissions committed, aided, abetted, counseled,

commanded, induced, procured, or willfully caused by the defendant.” U.S.S.G.

§ 1B1.3(a)(1)(A). Section 5G1.3 addresses the imposition of a sentence on a

defendant who is subject to an undischarged term of imprisonment. Id. § 5G1.3.

Subsection (a) concerns a situation where the instant offense was committed while

the defendant was serving a term of years or after being sentenced to a term of

imprisonment that had not yet commenced. Id. § 5G1.3(a).

      Subsection (b) provides:

             If subsection (a) does not apply, and a term of
             imprisonment resulted from another offense that is
             relevant conduct to the instant offense of conviction under
             the provisions of subsections (a)(1), (a)(2),or (a)(3) of
             § 1B1.3 (Relevant Conduct), the sentence for the instant
             offense shall be imposed as follows:
                                          9
             Case: 18-12600    Date Filed: 01/23/2019    Page: 10 of 12




                   (1) the court shall adjust the sentence for any period
                   of imprisonment already served on the
                   undischarged term of imprisonment if the court
                   determines that such period of imprisonment will
                   not be credited to the federal sentence by the Bureau
                   of Prisons; and

                   (2) the sentence for the instant offense shall be
                   imposed to run concurrently to the remainder of the
                   undischarged term of imprisonment.

Id. § 5G1.3(b).

      Part D of Chapter 2 of the Sentencing Guidelines deals with offenses

involving drugs and narcoterrorism. See U.S.S.G. Ch. 2, Pt. D. Section

2D1.1(b)(1) of the Guidelines imposes a two-level increase in a defendant’s

offense level if he possesses a dangerous weapon, including a firearm. See id.

§ 2D1.1(b)(1). Part K of Chapter 2 of the Guidelines deals with offenses involving

public safety. Id. Ch. 2, Pt. K. Under § 2K2.1(b)(6)(B), a defendant’s offense

level is raised by four if he used or possessed a firearm in connection with another

felony offense. Id. § 2K2.1(b)(6)(B). Under § 3B1.1(a) of the Guidelines, a

four-level enhancement should be applied if a defendant was an organizer or leader

of criminal activity involving five or more participants or was otherwise extensive.

Id. § 3B1.1(a). Under § 3B1.1(c), a defendant’s offense level is increased by two

if he was an organizer, supervisor, manager, or leader of criminal activity




                                         10
               Case: 18-12600       Date Filed: 01/23/2019       Page: 11 of 12


involving less than five participants that was not otherwise extensive. Id.

§ 3B1.1(c).

       Reilly’s argument that the application of the enhancements resulted in

impermissible double counting is unpersuasive. Reilly has pointed to no section of

the Sentencing Guidelines indicating that a defendant may not have his sentence

enhanced for possessing a firearm, id. § 2D1.1(b)(1), if he previously had his

sentence enhanced for using or possessing a firearm in connection with another

felony offense, id. § 2K2.1(b)(6)(B). See Dudley, 463 F.3d at 1227. Reilly also

does not point to any part of the Sentencing Guidelines indicating that a defendant

may not receive an enhancement under § 3B1.1(a) and (c) in separate cases. 1

       More importantly, the enhancements punished separate conduct or served

different purposes. In the earlier case, the district court enhanced Reilly’s sentence


1
  Reilly relies solely on United States v. Burrell, 662 F. App’x 889, 894–95 (11th Cir. 2016) (per
curiam), to argue that the imposition of enhancements under § 2K2.1 and § 2D1.1 can result in
impermissible double counting. That case, however, is distinguishable. In Burrell, the defendant
asserted that the district court engaged in double counting when it imposed two-level
enhancements under both § 2K2.1(b)(1)(A) and § 2D1.1(b)(1) for his possession of multiple
firearms. 662 F. App’x at 894. We noted that, although the probation officer had calculated his
offense level under both sections, she ultimately only applied the § 2D1.1 enhancement because
it produced the greater offense level of the two. Id. at 895. Because only one of the
enhancements was applied, we determined that no double counting occurred. Id. We did not
decide whether it would have been permissible for the probation officer to apply both sections
simultaneously, nor did we address whether separate courts could each apply one section after
considering the same conduct (here, the possession of multiple firearms). See generally id.
Furthermore, we have noted that the commentary to § 2K2.1 recognizes that a firearm may
enable other offenses, including drug crimes, and that the Sentencing Guidelines specifically
instruct a sentencing court to take all relevant conduct into consideration when determining the
Guideline range. See United States v. Webb, 665 F.3d 1380, 1383 (11th Cir. 2012).


                                               11
             Case: 18-12600     Date Filed: 01/23/2019    Page: 12 of 12


for his role in the offense for directing a codefendant to purchase a shotgun. In the

current case, the court applied the enhancement for Reilly being an organizer of a

large, multistate drug ring. With regard to Reilly’s enhancements for possession

of firearms, the enhancement that Reilly received in the earlier case for ordering

his codefendant to purchase a shotgun fell under Part K of Chapter 2 of the

Sentencing Guidelines, which deals with enhancements for offenses involving

public safety. See generally U.S.S.G. Ch. 2, Pt. K. But the enhancement he

received in the current case, under § 2D1.1(b)(1), is in the section of the

Sentencing Guidelines dealing specifically with drug offenses. See generally id.

Ch. 2, Pt. D. The Sentencing Commission chose to punish the possession of

firearms in multiple ways and, because furthering public safety and punishing the

use of guns during drug crimes are conceptually separate notions, the district court

did not engage in impermissible double counting by punishing Reilly for both.

Dudley, 463 F.3d at 1227.

      Accordingly, the district court did not err by impermissibly double counting

conduct. Id. at 1226.

      AFFIRMED.




                                          12
