Submitted: January 14, 2019
from United States District Court for the Eastern District of
Arkansas - Little Rock
SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
Canamore pled guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). The
district court sentenced Canamore to 84 months'
imprisonment. On appeal, he argues the district court
incorrectly calculated the advisory guideline range by
applying a two-level increase under United States Sentencing
Guidelines ("U.S.S.G." or "Guidelines")
§ 2K2.1(b)(4)(A) for possessing a stolen firearm and
U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in
connection with another felony offense. We affirm.
October 6, 2016, an arrest warrant was issued for Canamore by
the Little Rock District Court in Little Rock, Arkansas, for
theft by receiving a stolen firearm. The warrant came about
because of a stolen pistol that had been pawned at Pawnderosa
Pawn Shop in Little Rock, Arkansas, on September 17, 2016,
with Canamore's name listed on the pawn ticket. The
pawned pistol was a Smith & Wesson air weight .38 caliber
the United States Marshals Service arrested Canamore at his
mother's apartment, they conducted a search of
Canamore's bedroom. A deputy found an Armi-Galesi .22
caliber semiautomatic pistol, model Brevetto, inside the
pocket of a pair of pants; six rounds of .22 caliber
ammunition inside the pistol; 11 rounds of Hornady .357
caliber ammunition; nine rounds of Hornady .45 caliber
ammunition; 4.3 grams of marijuana; and one drug scale. After
advising Canamore of his Miranda rights, Canamore
voluntarily spoke to law enforcement. Canamore admitted he
owned the ammunition and marijuana found in his bedroom. He
initially disclaimed knowledge of the pistol or pants where
the pistol was found. Later in the interview, Canamore
admitted he owned the pants where the pistol was found. He
explained that a female acquaintance placed the pistol in his
pants pocket for safekeeping because she no longer needed it
to protect herself since the person she had been in an
abusive relationship with was in jail.
admitted to two prior felony convictions from Pulaski County
Circuit Court that prohibited him from possessing a firearm
or ammunition. The prior offenses included: (1) a conviction
in 2013 for possession of a controlled substance with the
purpose to deliver, possession of drug paraphernalia,
fleeing, and leaving scene of accident with injury or death;
and (2) a conviction in 2015 for simultaneous possession of
drugs and firearms, possession of a controlled substance with
the purpose to deliver, possession of firearms by certain
persons, and possession of drug paraphernalia.
sentencing, the district court determined the applicable base
offense level pursuant to the Guidelines was 24. Over
Canamore's objection, the court, after considering all
relevant conduct, applied a two-level increase under U.S.S.G.
§ 2K2.1(b)(4)(A) because a stolen firearm was involved
and an additional four-level increase under §
2K2.1(b)(6)(B) because the stolen firearm was possessed in
connection with another felony offense-theft by receiving
under Arkansas law. After reducing the offense level by three
points under U.S.S.G. § 3E1.1 for acceptance of
responsibility and timely notice of intent to plead guilty,
the court determined Canamore's total offense level was
27. Canamore was in criminal history category IV, yielding an
advisory Guidelines range of 100 to 120 months.
court found the advisory Guidelines range was "a little
too harsh" in Canamore's case. The court noted that
imposing both Guidelines enhancements, while correct, was not
"fair" and ought to be a consideration for a
variance. The court balanced Canamore's criminal history
against the particular circumstances of this offense. It
noted that neither of the guns at issue were brandished,
discharged, or displayed. The extra ammunition found was
"odd" because it did not fit either of the pistols
or any other firearm found. The court explained that since
the Guidelines swept so broadly in defining relevant conduct,
there must be some room for a court to evaluate "what
actually happened and adjust the sentence accordingly."
After weighing these factors, the court granted
Canamore's motion for a variance and sentenced him to a
term of 84 months' imprisonment. Canamore timely
argues the district court committed procedural error in
calculating the advisory Guidelines range by "double
counting" when it applied enhancements under both §
2K2.1(b)(4)(A) and § 2K2.1(b)(6)(B). We have 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 harm that has already been
fully accounted for by application of another part of the
Guidelines,' but double counting is permissible if the
Sentencing Commission so intended and each guideline section
furthers an independent purpose of sentencing."
United States v. Chapman, 614 F.3d 810, 812 (8th
Cir. 2010) (quoting and citing United States v.
Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997)).
"We review the district court's application of the
guidelines and the double-counting question de
2K2.1(b)(6)(B) directs the court to increase a
defendant's offense level by four if he "used or
possessed any firearm or ammunition in connection with
another felony offense." U.S.S.G. § 2K2.1(b)(6)(B).
The commentary defines "another felony offense" 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 a criminal charge was brought, or a
conviction obtained." Id. at comment.
(n.14(C)). Theft by receiving stolen property was a felony
under Arkansas ...