                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-1313
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Ryan Daniel Lee,                       *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: October 20, 2003

                                 Filed: December 8, 2003 (Corrected 12/22/03)
                                  ___________

Before RILEY, BEAM, and SMITH, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

      Ryan Daniel Lee (Lee) appeals his sentence for possession of an unregistered
sawed-off shotgun in violation of 26 U.S.C. § 5861(d) (2000). The Presentence
Report recommended a two-level enhancement pursuant to section 2K2.1(b)(3) of the
United States Sentencing Guidelines (U.S.S.G.) for possession of a “destructive
device,”1 and Lee filed an objection to the enhancement. The district court2


      1
       The term “destructive device” is defined in 26 U.S.C. § 5845(f). The parties
do not dispute that the weapon possessed by Lee, an unregistered sawed-off Marlin
Model 60G .410 caliber shotgun, meets the statutory definition of “destructive
concluded our decision in United States v. Rohwedder, 243 F.3d 423 (8th Cir. 2001),
involving an identical challenge to a sentencing enhancement pursuant to section
2K2.1(b)(3) (possession of a destructive device), controlled the case. The district
court overruled Lee’s objection, and sentenced Lee to 24 months imprisonment. We
affirm.

       Lee argues imposition of the “destructive device” enhancement constitutes
impermissible double counting in violation of the Double Jeopardy Clause. U.S.
Const. amend. V. Lee contends possession of a short-barreled shotgun is precisely
the harm targeted in the “destructive device” enhancement and is fully accounted for
in section 2K2.1(a)(5), which establishes a base offense level of 18. Lee also
contends our earlier holding in Rohwedder is distinguishable because, unlike Lee,
Rohwedder had a prior felony conviction. See U.S.S.G. § 2K2.1(a)(3).

       We review de novo a district court’s application of the Sentencing Guidelines,
including the issue of double counting. United States v. Kenney, 283 F.3d 934, 936
(8th Cir. 2002). In Rohwedder, the defendant pled guilty to being a felon in
possession of a firearm, but denied knowing the shotgun was shortened. The district
court found, and our court affirmed, Rohwedder knew the weapon was a sawed-off
shotgun. Rohwedder, 243 F.3d at 425-26. At sentencing, the district court applied
both subsections 2K2.1(a)(3) and (b)(3). By applying both subsections, Rohwedder
argued, the district court engaged in impermissible double counting.

     On appeal, we explained “[d]ouble counting occurs when one part of the
Guidelines is applied to increase a defendant’s punishment on account of a kind of


device.” The district court found the shotgun was a “destructive device” within the
meaning of 26 U.S.C. § 5845(f). We see no error in that finding.
      2
       The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.

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harm that has already been fully accounted for by application of another part of the
Guidelines.” Id. at 426-27 (quoting United States v. Hipenbecker, 115 F.3d 581, 583
(8th Cir. 1997)). We further explained, where “the Sentencing Commission intended
that result and each section concerns conceptually separate notions relating to
sentencing,” double counting may be permissible. Id. at 427. Applying the two-part
test in Rohwedder, we determined the Sentencing Commission intended both
subsections 2K2.1(a)(3) and (b)(3) should be applied to defendants whose offense
involved a destructive device, the sawed-off shotgun. Id. We also determined both
parts are conceptually separate, with part (a) setting forth the base offense level for
certain firearm crimes, and part (b) setting forth specific offense characteristics
enhancing the base offense level. Id. We then explained that “[s]ubsection (b)(3)
involves a specific definition of destructive device and applies regardless of the base
offense level applicable to a particular defendant,” and concluded the district court
correctly applied the sentencing enhancement. Id.

      In this case, the Sentencing Commission’s intention that both subsections
should apply is evident in Commentary Note 11 to section 2K2.1, which explains:

      A defendant whose offense involves a destructive device receives both
      the base offense level from the subsection applicable to a firearm listed
      in 26 U.S.C. § 5845(a) (e.g., subsection . . . (a)(3) . . .), and a two-level
      enhancement under subsection (b)(3). Such devices pose a considerably
      greater risk to the public welfare than other National Firearms Act
      weapons.

U.S.S.G. § 2K2.1, cmt. n.11.

      Our conclusion in Rohwedder that “these sections are sufficiently conceptually
separate,” Rohwedder, 243 F.3d at 427, persuades us Lee’s sentence was properly
enhanced pursuant to section 2K2.1(b)(3). Furthermore, our declaration in
Rohwedder that the (b)(3) enhancement applies “regardless of the base offense level

                                          -3-
applicable to a particular defendant,” id., defeats Lee’s attempt to distinguish the case.
Rohwedder’s prior felony conviction earned him a higher base offense level pursuant
to section 2K2.1(a)(3), but Rohwedder’s prior felony conviction does not otherwise
distinguish the reasoning in Rohwedder. We therefore affirm Lee’s sentence.
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