           Case: 17-11473   Date Filed: 06/27/2018   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-11473
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:16-cr-20359-KMW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                    versus

CURTIS BUCKINGHAM JOHNSON,

                                                         Defendant-Appellant.

                      ________________________

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

                             (June 27, 2018)

Before TJOFLAT, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Curtis Buckingham Johnson appeals his 90-month total sentence for 1 count

of conspiracy to possess with intent to distribute controlled substances within

1,000 feet of a school, in violation of 21 U.S.C. § 846, 1 count of possession of a

firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i), and 1 count of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). Johnson argues that the district court erred in

calculating his base offense level because he did not possess the qualifying firearm.

Johnson also argues that the district court improperly applied two sentence

enhancements because he did not have possession of between three and seven

firearms, nor stolen firearms. Further, Johnson argues that application of the

enhancement for the number of firearms resulted in impermissible double

counting.

                                 I. Base Offense Level

      For Sentencing Guidelines issues, we review purely legal questions de novo,

a district court’s factual findings for clear error, and, in most cases, a district

court’s application of the guidelines to the facts with “due deference.” United

States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). “Due deference” is

tantamount to clear error review. Id. “For a finding to be clearly erroneous, we

must be left with a definite and firm conviction that a mistake has been

committed.” Id. (quotation marks omitted).


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      The Sentencing Guidelines prescribe a base offense level of 20 for a

defendant who committed an offense involving a semiautomatic firearm as a

prohibited person. U.S.S.G. § 2K2.1(a)(4)(B)(i)(I), (a)(4)(B)(ii)(I). We have held

that a defendant’s possession of a firearm “may be actual or constructive, joint or

sole.” United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004) (addressing

possession of a firearm under 18 U.S.C. § 924(c)). A defendant’s presence near a

firearm or mere association with someone else who possesses a firearm is

insufficient to prove constructive possession. United States v. Perez, 661 F.3d 568,

576 (11th Cir. 2011). But “[t]he firearm need not be on or near the defendant’s

person in order to amount to knowing possession.” Id. (internal quotation

omitted). To show constructive possession, the government need only prove that

the defendant (1) was aware of the firearm’s presence and (2) had the ability and

intent to later exercise dominion and control over that firearm. Id. Intention to

exercise dominion and control may be shown where the defendant participates in a

joint criminal venture in which a firearm is intended to play a central part, “even if

the defendant never intended to use the firearm himself.” Id.

      Conspirators are liable for the reasonably foreseeable acts of their

co-conspirators in furtherance of the conspiracy, and we have held that this rule of

liability applies when sentencing a defendant for possession and use of a firearm.

United States v. Aduwo, 64 F.3d 626, 629–30 (11th Cir. 1995) (applying


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co-conspirator liability to a defendant sentenced under § 2K2.1(c)). In analyzing a

different sentencing guideline, we have held that it was not clearly improbable that

there was a connection between drug trafficking and firearms where the guns were

found in the location out of which drugs were sold and part of the “high risk

activity” of selling drugs may entail protecting oneself, proceeds, and inventory.

United States v. Fields, 408 F.3d 1356, 1359 (11th Cir. 2005).

      Although Johnson argues that he could not have foreseen Coleman’s

possession of firearms, Johnson admitted to possessing all the firearms, including

those recovered from Coleman’s room in his plea colloquy. Further, Johnson

concedes possession for one of the firearms and participated in a joint criminal

venture of drug trafficking. Thus, Johnson has admitted the conduct underlying

the sentence enhancements, and the district court did not clearly err in finding that

Johnson constructively possessed the firearms that led to his calculated base

offense level and two sentence enhancements.

                                II. Double Counting

      We review de novo a double counting claim. United States v. Cubero, 754

F.3d 888, 892 (11th Cir. 2014). “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 894 (internal quotation omitted). We


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presume that the Sentencing Commission intended separate guideline sections to

apply cumulatively, unless specifically directed otherwise. Id.

      Section 2K2.1 provides for a two-level enhancement for an offense

involving between three and seven firearms and a two-level enhancement if the

offense involved any stolen firearm. § 2K2.1(b)(1)(A), (b)(4). Amendment 599 of

the Guidelines provides that, when a defendant is being sentenced for both

violation of 18 U.S.C. § 924(c) and the underlying offense, no weapons

enhancement for the underlying offense should be applied. U.S.S.G. App. C,

Amend. 599; U.S.S.G. § 2K2.4, comment. (n.4). Amendment 599 is inapplicable

where the underlying offense that received the enhancements is different from the

offense forming the basis of a § 924(c) conviction. United States v. Pringle, 350

F.3d 1172, 1180–81 (11th Cir. 2003).

      The district court did not engage in double counting by applying

enhancements for the number of firearms and stolen nature of the firearms because

the enhancements were not already accounted for in the base offense level

guideline. The base offense level of 20 only accounted for Johnson’s possession of

a firearm as a prohibited person. It did not take into account the number of

firearms possessed or the possibility that some of the firearms may have been

stolen, so there was no double counting. Further, Amendment 599 is not an

applicable provision because Johnson did not receive a sentence based on the


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underlying offense of conspiracy to distribute drugs; rather, he received a sentence

based on being a felon in possession of a firearm and the mandatory minimum

required by 18 U.S.C. § 924(c)(1)(A).

Thus, we affirm.

      AFFIRMED.




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