Appeal from the United States District Court for the Southern District of Georgia D.C. Docket No. 3:10-cr-00003-DHB-WLB-1
U.S. COURT OFAPPEALS ELEVENTH CIRCUIT
Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.
Reginald Webb was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and sentenced to 80 months' imprisonment. He now appeals, challenging the manner in which the district court, in fashioning his sentence, calculated his advisory guidelines range. Specifically, Webb asks us to determine whether the enhancement he received for possession of a firearm under U.S.S.G. § 2D1.1(b)(1), which the court applied based on the cross-reference provision in the guideline applicable to firearm offenses, constituted impermissible double counting. Because we conclude that it does not, we affirm.
In August 2008, Webb agreed to buy half a kilogram of cocaine for $13,000 from a confidential informant. Webb arranged to meet the informant to complete the transaction but was stopped by the police en route. A search of Webb's pickup truck revealed $13,000 and a loaded 9mm semiautomatic handgun.
Webb was indicted for one count of attempted possession with intent to distribute 500 grams of cocaine, in violation of 21 U.S.C. § 846; two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g);*fn1 and possession of a firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c). He pleaded guilty to one of the § 922(g) counts; the remaining counts were dismissed upon the government's motion.
The district court calculated Webb's guidelines range under U.S.S.G. § 2K2.1 (2009), the guideline applicable to firearm offenses. There was a 4-level enhancement because Webb possessed the firearm in connection with a drug offense, leading to an adjusted offense level of 18. The court then looked to the cross-reference provision in § 2K2.1(c)(1)(A), which instructed that if the defendant possessed the firearm in the attempted commission of another offense, the court was to calculate the offense level under § 2X1.1 and apply the greater of the two resulting offense levels. Section 2X1.1(c), in turn, instructed the court to apply the guideline for the substantive offense, in this case U.S.S.G. § 2D1.1.*fn2
Given the amount of drugs involved, the base offense level for the substantive offense was 26. U.S.S.G. § 2D1.1(c)(7). There was a two-level enhancement under § 2D1.1(b)(1) based on Webb's possession of a firearm during the drug offense, resulting in an adjusted offense level of 28. Because the offense level under § 2D1.1 was greater than that calculated under § 2K2.1, Webb's advisory guideline range was based on the § 2D1.1 calculations. With a reduction for acceptance of responsibility, Webb's guideline range was 70 to 87 months' imprisonment.
Webb objected to the application of the firearm enhancement under § 2D1.1(b)(1) on the ground that it constituted impermissible double counting.*fn3
The district court overruled the objection and sentenced Webb to 80 months' imprisonment. This is Webb's appeal.
We review de novo a claim of double counting under the guidelines. United States v. Lebovitz, 401 F.3d 1263, 1270 (11th Cir. 2005). Our interpretation of the sentencing guidelines and its accompanying commentary is governed by traditional rules of statutory ...