Petition for Writ of Certiorari — Adam Brake, Petitioner v. United States

Case: 17-1978

Document: 00117339371

Page: 1

Date Filed: 09/14/2018

Entry ID: 6198274

United States Court of Appeals

For the First Circuit

Nos. 17-1978, 17-1979

United States of America,

Appellee,

v.

Adam Brake,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Lynch, Stahl, and Thompson,

Circuit Judges.

Jane Elizabeth Lee, on brief for Appellant.

Halsey B. Frank, United States Attorney, with whom Benjamin

M. Block, Assistant United States Attorney, was on brief for

Appellee.

September 14, 2018

Case: 17-1978

Document: 00117339371

STAHL,

Circuit

Page: 2

Judge.

Date Filed: 09/14/2018

Defendant

Adam

Entry ID: 6198274

Brake

pleaded

guilty to one count of possession of a firearm by a convicted felon

in violation of 18 U.S.C. § 922(g)(1).

In calculating Brake's

sentence, the district court applied, inter alia, a two-level

enhancement for possession of a stolen firearm and a four-level

enhancement for using a firearm in connection with another felony.

On appeal, Brake challenges the district court's application of

these two enhancements.

After careful consideration, we affirm.

I. Factual Background and Prior Proceedings

We briefly summarize the essential facts of the case.

"Because this appeal follows a guilty plea, we draw the relevant

facts from the plea agreement, the change-of-plea colloquy, the

undisputed

portions

of

the

presentence

investigation

report

('PSR'), and the transcript of the disposition hearing."

United

States v. O'Brien, 870 F.3d 11, 14 (1st Cir. 2017).

In May 2016, in response to a reported burglary, officers

from the Berwick (Maine) Police Department stopped a car matching

a bulletin for a separate burglary.

Brake was inside the car and

consented to a search of the vehicle.1

Police discovered a crowbar

and multiple laptop computers in the trunk of the car.

At that

point, Brake confessed to multiple burglaries in the area.

1

The vehicle's owner and two children were also in the car.

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In a subsequent interview following Miranda warnings,

Brake reaffirmed his earlier confession and informed police that

some

of

the

residence.

stolen

property

remained

stashed

at

a

Berwick

After a search of the premises (presumably conducted

pursuant to a search warrant), police recovered numerous items

from

multiple

burglaries,

including

currency,

electronics,

jewelry, and (most notably for purposes of this appeal) nine

firearms.

On June 5, 2017, Brake pleaded guilty to an information

charging possession of a firearm by a felon, and separately

admitted to four violations of the terms of his supervised release

on an earlier conviction.

Using the 2016 Sentencing Guidelines, the United States

Probation Office ("Probation") issued its first PSR for the felon

in possession count in July 2017.

Based on Brake's criminal

history, the PSR calculated a base offense level of 20, see

U.S.S.G. § 2K2.1(a)(4)(A), and applied enhancements for specific

offense characteristics: (a) a four-level increase based on the

number of firearms involved in the offense, id. § 2K2.1(b)(1)(B);

and (b) a two-level increase because the offense involved stolen

firearms, id. § 2K2.1(b)(4)(A).2

Following Brake's objections to

the first PSR, Probation issued a second PSR which included in its

calculation an additional enhancement of four levels because Brake

2

The PSR also included a three-point reduction to Brake's

offense level based on acceptance of responsibility.

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"used or possessed [] firearm[s] . . . in connection with another

felony

offense,"

id.

§ 2K2.1(b)(6)(B),

namely

the

felony

burglaries during which Brake stole the firearms.

Brake objected to both PSRs on a number of grounds, none

of which are claimed to be relevant here.3

The district court

overruled all of Brake's objections to the guidelines calculation.

On September 25, 2017, the court sentenced Brake to a term of 84

months' incarceration for possession of a firearm by a felon and

a concurrent term of 24 months' incarceration for violating the

terms of his supervised release.4

Brake timely appealed.

II. Discussion

Brake's sole argument in this appeal is that the district

court erred in imposing both the two-level enhancement under

Section 2K2.1(b)(4)(A)

Section 2K2.1(b)(6)(B).

and

the

The

four-level

government

enhancement

both

contests

under

this

argument and counters that, in any event, Brake's claim has been

3

While Brake objected to the second PSR's addition of the

four-level enhancement under Section 2K2.1(b)(6)(B), he staked his

objection on different grounds than those raised in this appeal.

Brake argued that Probation's inclusion of a new enhancement after

he submitted objections was retaliatory. However, Brake did not

object to the inclusion of the two-level enhancement pursuant to

Section 2K2.1(b)(4)(A) and did not make the "double counting"

argument he now makes.

4

Brake appeals both the revocation of his supervised release,

No. 17-1978, and the felon in possession conviction, No. 17-1979,

in this consolidated appeal. However, he does not raise any claim

of error regarding the sentence imposed for the supervised release

violations.

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Entry ID: 6198274

waived because he did not object to the Section 2K2.1(b)(4)(A)

stolen gun enhancement when he was before the district court.

In

response, Brake argues that this argument may have been forfeited,

but was not waived because the specific issue of double counting

was never addressed below.

The distinction between waiver and forfeiture may be

material to the scope of appellate review.

Waiver refers to the

"intentional relinquishment or abandonment of a known right."

United

States

v.

Olano,

507

U.S.

725,

quotation marks and citation omitted).

733

(1993)

(internal

"By contrast, forfeiture

refers not to affirmative conduct but rather to a 'failure to make

the timely assertion of a right.'"

United States v. Gaffney-

Kessell, 772 F.3d 97, 100 (1st Cir. 2014) (quoting Olano, 507 U.S.

at 733).

Id.

A waived issue ordinarily may not be reviewed on appeal.

Issues forfeited below, however, are subject to plain error

review.

Olano, 507 U.S. at 733-34.

We

need

not

determine

whether

Brake

waived

his

objection, as we conclude that Brake's claim does not rise to the

level of plain error. "Where a defendant's claim would fail even

if reviewed for plain error, we have often declined to decide

whether

the

defendant's

failure

to

constituted waiver or mere forfeiture."

Sueros, 826 F.3d 21, 24 (1st Cir. 2016).

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raise

the

issue

below

United States v. Acevedo-

Case: 17-1978

Document: 00117339371

Brake

claims

Page: 6

that

the

Date Filed: 09/14/2018

district

court

Entry ID: 6198274

impermissibly

"double counted" in applying enhancements for both possessing a

stolen

firearm

firearm,

"in

U.S.S.G.

connection

§ 2K2.1(b)(6)(B).

§ 2K2.1(b)(4)(A),

with

Brake

another

asserts

and

felony

that,

in

possessing

offense,"

his

case,

a

id.

both

enhancements address the possession of firearms stolen during the

burglaries

(the

felonies

on

enhancement is predicated).

which

the

Section 2K2.1(b)(6)(B)

He contends that, in this instance,

this constitutes "double counting."

In his view, the enhancement

for possessing the firearms in connection with the burglaries

accounts for the stolen nature of the weapons, rendering the

enhancement for possessing stolen firearms duplicative.

Despite its pejorative nomenclature, "[d]ouble counting

in the sentencing context is a phenomenon that is less sinister

than the name implies."

United States v. Lilly, 13 F.3d 15, 19

(1st Cir. 1994) (internal quotation marks and citation omitted).

"Multiple sentencing adjustments may derive from 'the same nucleus

of

operative

concerns.'"

facts

while

nonetheless

responding

to

discrete

United States v. Fiume, 708 F.3d 59, 61 (1st Cir.

2013) (quoting Lilly, 13 F.3d at 19).

Indeed, as this court has

observed, "[t]he Sentencing Commission has shown itself fully

capable

of

expressly

forbidding

double

counting

under

the

guidelines when appropriate," United States v. Chiaradio, 684 F.3d

265, 283 (1st Cir. 2012), and it "has not been bashful about

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explicitly banning double counting in a number of instances,"

Lilly, 13 F.3d at 19 (collecting examples).

Accordingly, "when

neither an explicit prohibition against double counting nor a

compelling basis for implying such a prohibition exists, courts

should be reluctant to read in a prohibition where there is none."

Chiaradio, 684 F.3d at 283 (internal quotation marks and citation

omitted).

Though a matter of first impression in this circuit, a

number of our sister circuits have wrestled with "double counting"

challenges

to

the

enhancements

raised

here.

Circuit

courts

initially split over the separate but related question of whether

the enhancement for using or possessing a firearm "in connection

with another felony offense" applied to defendants who, like

Brake,5 began a burglary unarmed but stole firearms during the

crime.

Prior to the 2006 Amendments to the Sentencing Guidelines,

at least three circuits had concluded that gun thefts by prohibited

persons under those circumstances justified enhancements for both

the possession of a stolen firearm and possessing the weapon during

the felony burglary.

See United States v. Schaal, 340 F.3d 196,

199 (4th Cir. 2003); United States v. Kenney, 283 F.3d 934, 936-39

(8th Cir. 2002); United States v. Luna, 165 F.3d 316, 322-24 (5th

5

While the record and briefs are not entirely clear, we

assume for purposes of this appeal that Brake was not armed when

he entered any of the burgled residences and only acquired the

firearms during the course of the burglaries.

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Case: 17-1978

Cir.

Document: 00117339371

1999).

sentences

Other

based

contemporaneous

on

Page: 8

circuits,

however,

acquisition

felony.

Date Filed: 09/14/2018

Instead,

of

blanched

the

those

at

Entry ID: 6198274

enhancing

firearm

during

a

courts

required

a

"separation of time" or "distinction of conduct" between the

offense of conviction and the "other felony offense" used as an

enhancement predicate under Section 2K2.1(b)(6)(B).6

See United

States v. Fenton, 309 F.3d 825, 827-28 (3d Cir. 2002); United

States v. Szakacs, 212 F.3d 344, 348-52 (7th Cir. 2000); United

States v. Sanders, 162 F.3d 396, 399-402 (6th Cir. 1998).

The

Sentencing Commission amended the Guidelines in 2006 to resolve

this conflict, adding Application Note 14(B) to Section 2K2.1 and

clarifying that, even without any additional conduct, acquisition

of a gun during a burglary justifies application of the enhancement

for

possessing

offense."

a

firearm

"in

connection

with

another

felony

See U.S.S.G. app. C amend. 691; U.S.S.G. § 2K2.1 cmt.

n.14(B).

We view this history, and particularly the Sentencing

Commission's

resolution

of

dispositive of Brake's claim.

this

interpretive

dispute,

as

Even in the best of circumstances,

we are hesitant to infer an extratextual prohibition on "double

6

At the time of these decisions, the enhancement for use or

possession of a firearm in connection with another felony offense

appeared in Section 2K2.1(b)(5).

The Sentencing Commission

subsequently renumbered that section in 2006, but did not revise

the language of the enhancement. See U.S.S.G. app. C amend. 691.

The current numbering is used here for the reader's convenience.

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counting" absent a "compelling basis" to do so.

F.3d at 283.

Entry ID: 6198274

Chiaradio, 684

Here, the Sentencing Commission's adoption of

Application Note 14(B) not only fails to support such an inference;

it in fact supports the opposite conclusion.

True, that note does

not speak directly to the issue at hand: by its terms, it resolves

solely the application of Section 2K2.1(b)(6)(B) to burglaries

resulting

in

firearms

2K2.1(b)(4)(A).

In

thefts

and

does

drafting

that

not

mention

guidance,

Section

however,

the

Commission adopted a position urged by several circuits as their

basis for applying both enhancements.

at

936-39.

It

application

note,

is

hard

the

to

See, e.g., Kenney, 283 F.3d

believe

Commission

that,

would

in

have

adopting

that

overlooked

the

potential for both enhancements to be applied or that it intended

to prohibit such application.7

At least two other circuits have

taken a similar view of the significance of the Commission's

guidance.

See United States v. Blackbourn, 344 F. App'x 481, 484

(10th Cir. 2009) (stating that Application Note 14(B) "was added

by the Commission to resolve a circuit split on whether both . . .

enhancements can be applied when a defendant participates in a

7

This conclusion is reinforced by Section 2K2.1's inclusion

of other application notes which limit those enhancements in other

ways.

See U.S.S.G. § 2K2.1 cmt. n.8(A) (impermissible "double

counting" to apply Section 2K2.1(b)(4)(A) where base offense level

determined by Section 2K2.1(a)(7) and offense based on one of

several enumerated statutory sections); id. at cmt. n.14(E)(ii)

(describing factual circumstances in which Section 2K2.1(b)(6)(B)

does not apply).

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burglary in which firearms are taken"); United States v. Young,

336 F. App'x 954, 959 & n.9 (11th Cir. 2009) (per curiam).

Resolving this case does not require us to determine whether the

Commission's

guidance

implicitly

endorses

the

application

of

Sections 2K2.1(b)(4)(A) and 2K2.1(b)(6)(B) to circumstances like

those presented here.

Instead, we need only find that there is no

basis to interpose an implied prohibition on "double counting"

those

enhancements,

and

we

have

no

trouble

reaching

that

conclusion.

Moreover, we view this result as consistent with the

purposes

behind

the

enhancements.

Though

both

enhancements

"derive from the same nucleus of operative facts" in this case,

namely the burglaries,8 they "nonetheless respond[] to discrete

concerns."

Fiume, 708 F.3d at 61 (internal quotation marks and

citation omitted).

In this regard, Brake's claim that both

enhancements respond to the stolen nature of the guns is simply

incorrect.

Though Brake's firearms thefts give rise to the four-

level enhancement under Section 2K2.1(b)(6)(B), the sentencing

concern addressed by that provision is wholly unrelated to whether

the weapon was stolen during the burglary or at any other point.

8

Despite Brake's suggestion that the enhancement for

possessing a stolen firearm is based solely on his possession of

the weapons during the burglaries, the record indicates that he

continued to maintain control over the stolen weapons for some

time thereafter. It is thus not obvious that the enhancements are

temporally linked to the same period of possession.

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Rather, it speaks to the risk that possessing a firearm during a

burglary

might

facilitate

that

potentially more serious, crimes.

("The

Commission

determined

offense

or

portend

other,

See U.S.S.G. app. C amend. 691

that

application

of

[Section

2K2.1(b)(6)(B) to contemporaneous burglaries] is warranted . . .

because of the potential that the presence of a firearm has for

facilitating another felony offense or another offense.").

On the

other hand, Section 2K2.1(b)(4)(A) addresses the firearm's prior

theft

without

regard

to

any

risk

furtherance of some criminal act.

that

it

might

be

used

in

See United States v. Gallegos,

631 F. App'x 875, 880 (11th Cir. 2015) (per curiam) ("[T]he harm

accounted for by § 2K2.1(b)(4)(A) is not [the gun's] potential

use, but the simple fact that the firearm possessed or transferred

was stolen.").

Said differently, even where they grow from the

same factual root, those enhancements "bear[] upon two separate

sentencing considerations" which are entirely distinct from one

another. Fiume, 708 F.3d at 61; cf. also United States v. Wallace,

461 F.3d 15, 36 (1st Cir. 2006) (concluding that enhancements for

unlawful possession of semiautomatic weapon and for using a weapon

or dangerous instrumentality in the commission of an offense

addressed discrete concerns).

From this perspective, too, we see

no fault in applying both enhancements to Brake's conduct.

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III. Conclusion

For

the

foregoing

reasons,

imposed on the appellant.

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we

AFFIRM

the

sentence