United States v. Brake, 904 F.3d 97

In May 2016 police stopped a car after a burglary bulletin; Brake consented to a search, and police found burglary tools and laptops; Brake confessed to multiple burglaries.
After a Miranda-warninged interview Brake directed police to a residence where a search recovered items from multiple burglaries, including nine firearms.
Brake pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)) and admitted supervised‑release violations.
Probation calculated a base offense level under U.S.S.G. § 2K2.1 and applied: a two‑level enhancement for possession of stolen firearms (§ 2K2.1(b)(4)(A)) and a four‑level enhancement for possessing a firearm in connection with another felony (§ 2K2.1(b)(6)(B)).
The district court overruled Brake’s objections and sentenced him to 84 months for the felon‑in‑possession count; Brake appealed, arguing the two enhancements result in impermissible double counting.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether applying both § 2K2.1(b)(4)(A) (stolen firearm) and § 2K2.1(b)(6)(B) (firearm in connection with another felony) constitutes impermissible double counting	Government: both enhancements properly applied under the Guidelines	Brake: the § 2K2.1(b)(6)(B) enhancement (premised on the burglaries) already accounts for the guns being stolen, so applying § 2K2.1(b)(4)(A) is duplicative	Court affirmed: no plain‑error; no basis to infer an implied prohibition on applying both enhancements; they address distinct sentencing concerns

O'Brien v. United States, 870 F.3d 11 (1st Cir. 2017) (sources for facts after guilty plea)
Olano v. United States, 507 U.S. 725 (1993) (distinguishing waiver and forfeiture; plain‑error standard)
United States v. Gaffney‑Kessell, 772 F.3d 97 (1st Cir. 2014) (forfeiture vs. waiver discussion)
United States v. Acevedo‑Sueros, 826 F.3d 21 (1st Cir. 2016) (declining to decide waiver when claim fails on plain‑error review)
United States v. Lilly, 13 F.3d 15 (1st Cir. 1994) (double‑counting concept; courts reluctant to read in prohibitions)
United States v. Fiume, 708 F.3d 59 (1st Cir. 2013) (multiple adjustments may derive from same facts but address discrete concerns)
United States v. Chiaradio, 684 F.3d 265 (1st Cir. 2012) (Sentencing Commission can and does prohibit double counting explicitly)
United States v. Schaal, 340 F.3d 196 (4th Cir. 2003) (applying both stolen‑gun and in‑connection enhancements)
United States v. Kenney, 283 F.3d 934 (8th Cir. 2002) (same)
United States v. Luna, 165 F.3d 316 (5th Cir. 1999) (same)
United States v. Fenton, 309 F.3d 825 (3d Cir. 2002) (requiring temporal/separation analysis for in‑connection enhancement)
United States v. Szakacs, 212 F.3d 344 (7th Cir. 2000) (same)
United States v. Sanders, 162 F.3d 396 (6th Cir. 1998) (same)
United States v. Wallace, 461 F.3d 15 (1st Cir. 2006) (multiple enhancements addressing distinct concerns are permissible)