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                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-10705
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 1:14-cr-00393-AT-JFK-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JEFFREY SCOTT TRUITT,

                                                         Defendant-Appellant.

                      ________________________

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

                              (June 6, 2017)

Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jeffrey Scott Truitt appeals his 106-month sentence, imposed after he pled

guilty to a number of drug and firearm offenses. On appeal, Truitt argues that the

application of both a four level enhancement to his Sentencing Guidelines offense

level for firearm trafficking and a four level enhancement for possession of

firearms in connection with another felony constitutes impermissible double

counting. After careful review, and for the reasons set forth below, we affirm the

district court’s decision.

                                         I.

      Truitt pled guilty to six federal offenses, including possession of an

unregistered destructive device (Count 1), an unregistered firearm (Count 2), a

stolen firearm (Count 3), methamphetamine (Count 4), and a firearm by an

unlawful user of a controlled substance (Count 5). He also pled guilty to theft of

firearms from a licensee (Count 6).

      Before his sentencing hearing, the probation office prepared a presentence

investigation report (“PSI”), which reported the details of the investigation of

Truitt’s criminal activity. In conjunction with the arrest of a man named Mario

Rodriguez-Aviles, agents from the Bureau of Alcohol, Tobacco, Firearms, and

Explosives (“ATF”) recovered 11 firearms. Agents traced some of these firearms

to Mainstreet Guns & Range, where Truitt worked, and determined the firearms to

be either missing without record or reported as sold to Truitt. As a result of this


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information, agents executed a search warrant on Truitt’s residence, where they

recovered, among other things, methamphetamine, an unregistered destructive

device, and a variety of firearms and ammunition. Police arrested Truitt as a result

of the search.

      After Truitt’s arrest, ATF agents interviewed Jason Evans, an inmate

incarcerated in Georgia who reported that he had sold methamphetamine to Truitt

on multiple occasions and that several of these transactions involved trading

firearms in exchange for methamphetamine. Evans also told agents that he

obtained approximately 15 to 20 firearms from Truitt and gave the firearms to

Rodriguez-Aviles in exchange for credit against his drug debt.

      The probation officer calculated a base offense level of 20, pursuant to

U.S.S.G. § 2K2.1, for the firearms offenses, which were grouped together for

guidelines calculation purposes. In this calculation, as relevant here, Truitt

received a four level enhancement pursuant to U.S.S.G § 2K2.1(b)(5) because he

engaged in trafficking of firearms and a four level enhancement pursuant to

U.S.S.G. § 2K2.1(b)(6)(B) for possession of a firearm or ammunition in

connection with another felony.

      Truitt objected to the § 2K2.1(b)(6)(B) enhancement, arguing that its

application constituted impermissible double counting because the basis for this

enhancement already was covered by the § 2K2.1(b)(5) trafficking enhancement.


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The district court overruled Truitt’s objection, finding that the government carried

its burden of showing that there was no impermissible double counting because the

enhancements under §§ 2K2.1(b)(5) and (6)(B) represented two separate harms,

firearm trafficking and facilitation of drug offenses.

      With these two enhancements, Truitt’s total offense level was 34. That,

combined with a criminal history category of I, yielded a guidelines range of 151

to 188 months’ imprisonment. The district court sentenced Truitt to 106 months of

imprisonment followed by three years of supervised release. This is Truitt’s

appeal.

                                          II.

      We review de novo a claim that the district court engaged in impermissible

double counting. United States v. Matos-Rodriguez, 188 F.3d 1300, 1310 (11th

Cir. 1999). For the reasons that follow, we conclude that the district court’s

application of both the U.S.S.G. § 2K2.1(b)(5) and § 2K2.1(b)(6)(B) enhancements

to Truitt’s guidelines range did not constitute impermissible double counting.

      “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.” United States v. Dudley, 463 F.3d 1221, 1226-27 (11th Cir. 2006)

(internal quotation marks omitted). “We presume that the Sentencing


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Commission,” which promulgates the guidelines, “intended separate guidelines

sections to apply cumulatively unless specifically directed otherwise.” Id. at 1227

(internal quotation marks omitted). “Double counting a factor during sentencing is

permitted if the Sentencing Commission . . . intended that result and each guideline

section in question concerns conceptually separate notions relating to sentencing.”

Id. (internal quotation marks omitted). Punishment of two different kinds of harms

based on the same conduct is permissible under the guidelines when “neither

enhancement fully accounts for both harms.” United States v. Asante, 782 F.3d

639, 648 (11th Cir. 2015) (internal quotation marks and alteration omitted).

      Section 2K2.1(b)(5) dictates a four level enhancement if the defendant

engaged in the trafficking of firearms. U.S.S.G. § 2K2.1(b)(5). Section 2K2.1’s

Application Notes clarify that, in general, subsection (b)(5) applies if the defendant

transferred two or more firearms to another individual and “knew or had reason to

believe that such conduct would result in the transport, transfer, or disposal of a

firearm to an individual—(I) Whose possession or receipt of the firearm would be

unlawful; or (II) Who intended to use or dispose of the firearm unlawfully.” Id.

§ 2K2.1 cmt. n.13(A). The Application Notes further state:

      In a case in which three or more firearms were both possessed and
      trafficked, apply both subsections (b)(1) and (b)(5). If the defendant
      used or transferred one of such firearms in connection with another
      felony offense (i.e., an offense other than a firearms possession or
      trafficking offense) an enhancement under subsection (b)(6)(B) also
      would apply.
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Id. cmt. n.13(D).

      Section 2K2.1(b)(6)(B) allows a four level enhancement if the defendant

“used or possessed any firearm or ammunition in connection with another felony

offense,” or if the defendant “possessed or transferred any firearm or ammunition

with knowledge, intent, or reason to believe that it would be used or possessed in

connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The

Application Notes to this subsection state that, in general, § 2K2.1(b)(6)(B) applies

“if the firearm or ammunition facilitated, or had the potential of facilitating,

another felony offense.” Id. § 2K2.1 cmt. n.14(A); see United States v. Rhind, 289

F.3d 690, 695 (11th Cir. 2002) (noting that we give the phrase “in connection

with” another felony an “expansive interpretation”). Further, the Application

Notes define “another felony offense” in this context as “any federal, state, or local

offense, other than the explosive or firearms possession or trafficking offense,

punishable by imprisonment for a term exceeding one year regardless of whether”

there was a criminal charge or conviction. U.S.S.G. § 2K2.1 cmt. n.14(C). As

relevant to this appeal, Truitt pled guilty to possession of methamphetamine, which

constitutes a felony offense under state law. O.C.G.A. § 16-13-30 (providing that

offense of possession of a controlled substance is punishable by imprisonment for

more than one year).



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      On appeal, Truitt does not contest the application of the trafficking

enhancement. Thus, the only question we must answer is whether the application

of both the trafficking enhancement and the “in connection with another felony”

enhancement constituted double counting. There is no indication from the

Sentencing Commission that it intended to forbid the application of both

enhancements, see Dudley, 463 F.3d at 1227; to the contrary, the Application

Notes expressly contemplate that both enhancements will apply where the

defendant used or transferred firearms in connection with a felony offense other

than firearms possession or trafficking. See U.S.S.G. § 2K2.1 cmt. n.13(D).

      Truitt argues that there is double counting here because both enhancements

punished his trafficking of firearms, and the guidelines expressly exclude from the

definition of “another felony offense” any “firearms possession or trafficking

offense.” Id. We disagree. While the application of the § 2K2.1(b)(5)

enhancement punished Truitt’s transfer of firearms, the application of the

§ 2K2.1(b)(6)(B) enhancement punished his possession of methamphetamine,

which constitutes “another felony offense” under the guidelines. U.S.S.G. § 2K2.1

cmt. n.14(C); see O.C.G.A. § 16-13-30. Indeed, we previously held that the sale of

a firearm in exchange for drugs facilitates a drug offense and is therefore seen as

“in connection with” that offense under U.S.S.G. § 2K2.1. United States v.

Carillo-Ayala, 713 F.3d 82, 96 (11th Cir. 2013). As in Carillo-Ayala, Truitt’s


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possession of firearms was “in connection with another felony offense” within the

meaning of the guidelines. And the harms associated with possession of

methamphetamine are separate from those associated with trafficking of firearms

such that “neither enhancement fully accounts for both harms.” Asante, 782 F.3d

at 647-48 (internal quotation marks and alteration omitted). Accordingly, there

was no impermissible double counting, and we affirm the sentence the district

court imposed.

      AFFIRMED.




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