The District Court
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convicted Charles Friend of one count of attempting to injure
Had the Sentencing Commission not published Amendment 599, both parties would agree that U.S.S.G. § 2K2.1 governs sentencing for felon-in-possession convictions pursuant to 18 U.S.C. § 922(g), while U.S.S.G. § 2K2.4 governs sentencing for convictions pursuant to 18 U.S.C. § 924(c). The controversy in this case is whether Amendment 599, which states that its purpose is to clarify U.S.S.G. § 2K2.4, actually creates an exception to § 2K2.1 merely by making reference to 18 U.S.C. § 922(g) in its explanation. The first sentence of Amendment 599’s stated rationale provides our answer.
Amendment 599, which amends Note 2 of the Application Notes to the Commentary to § 2K2.4, attempts “to clarify under what circumstances defendant’s sentence for violations of 18 U.S.C. § 924(c) in conjunction with convictions for other offenses may receive weapons enhancements ... for those other offenses.” U.S.S.G. Manual, Supp. to App. C at 71 (2001). This language makes clear that Amendment 599 applies only to 18 U.S.C. § 924(c) convictions.
See United States v. Diaz,
Amendment 599 explains that, in order to avoid double-counting, an enhancement that might seem to be appropriate under § 2K2.1(b) could be inappropriate for a sentence under § 2K2.4. The rationale is that the conduct that triggered the § 2K2.1(b) enhancements is related to the conduct that forms the basis for the 18 U.S.C. § 924(c) conviction. For sentencing purposes, that conduct should not be counted twice. In explaining this principle, Amendment 599 offers an example where the Guidelines do not permit double-counting of conduct involving weapons: “For example, if in addition to a conviction for an underlying offense of armed bank robbery, the defendant was convicted of being a felon in possession under 18 U.S.C. § 922(g), the enhancement under § 2K2.1(b)(5) would not apply.” U.S.S.G. Manual, Supp. to App. C at 71. An armed robbery conviction would be subject to U.S.S.G. § 2B3.1, which contains enhancements for weapons, so applying § 2K2.1(b)(5) would be double-counting. Defendant now argues that his case is the same as the Amendment 599 example, and, therefore, § 2K2.1(b)(5) enhancements are impermissible.
Defendant’s conviction for attempting to injure a federal building, however, is not an underlying offense to his 18 U.S.C. § 922(g) convictions. Friend shot at the federal building on March 5, 1996. His possession-of-firearms violations occurred on February 19 and March 12,1996. They
Because Amendment 599 applies only to 18 U.S.C. § 924(c) convictions and because this case involves no double-counting, we affirm the District Court’s judgment.
Notes
. The Honorable Jimm Larry Hendren, United States District Judge for the Western Dis-trie! of Arkansas.