United States v. John Feeney

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 30, 2024
• Docket: 22-2607
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2607 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

JOHN FEENEY, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:20-cr-00794-1 — Jorge L. Alonso, Judge. ____________________

ARGUED DECEMBER 13, 2023 — DECIDED APRIL 30, 2024 ____________________

Before WOOD, KIRSCH, and LEE, Circuit Judges. LEE, Circuit Judge. John Feeney pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and carrying an explosive during that unlawful possession in violation of 18 U.S.C. § 844(h)(2). At sentencing, the parties disagreed on the applicable base offense level un- der the Sentencing Guidelines for Feeney’s § 922(g)(1) convic- tion. The government argued that Feeney’s possession of an explosive warranted an increased base offense level under 2 No. 22-2607

U.S.S.G. § 2K2.1(a)(5). Meanwhile, Feeney argued that this outcome would punish him twice for the same conduct in vi- olation of Application Note 4 to U.S.S.G. § 2K2.4. The court agreed with the government and applied the higher base of- fense level to Feeney’s sentence. Because Feeney has the better interpretation of the relevant guideline and application note, we vacate his sentence and remand for resentencing. I. Background On July 24, 2020, officers with the Grundy County Sheriff’s Department received information that Feeney may have been involved in a roadside shootout. The next day, a sergeant be- gan conducting surveillance of Feeney’s residence. After ob- serving Feeney drive away from his house and commit mul- tiple traffic violations, the sergeant pulled him over. During the stop, Feeney was asked to step out of his car and stand at the rear, but instead he ignored the request, locked his car, and walked away. The sergeant and another deputy who ar- rived on the scene eventually caught up to Feeney, searched his vehicle, and found two pistols, ammunition, drugs, and drug paraphernalia. They also found three artillery-shell fire- works, one of which Feeney had modified to contain metal shrapnel. In a four-count superseding indictment, the government charged Feeney, a convicted felon, with unlawfully pos- sessing the two pistols pursuant to 18 U.S.C. § 922(g)(1) and with carrying explosives—the fireworks shells—while com- mitting that felony pursuant to 18 U.S.C. § 844(h)(2). Feeney pleaded guilty to both offenses. In anticipation of sentencing, the probation office pre- pared a presentence investigation report (PSR). As to the No. 22-2607 3

§ 922(g)(1) conviction, the PSR set a base offense level of 14 under U.S.S.G. § 2K2.1(a)(6). The PSR then applied two spe- cific offense characteristics. First, it applied a two-point in- crease pursuant to U.S.S.G. § 2K2.1(b)(4) because one of the firearms was stolen. Second, it applied a four-point increase pursuant to § 2K2.1(b)(6)(B) because Feeney possessed the firearms in connection with another felony (here, drug traf- ficking). After a three-level reduction for acceptance of re- sponsibility, Feeney’s total offense level was 17. With a crimi- nal history category of IV, the PSR recommended a guideline range of 37 to 46 months of imprisonment. As to the convic- tion for carrying explosives while committing a felony, the PSR calculated the guideline sentence to be the statutory 10- year minimum under § 844(h)(2). See U.S.S.G. § 2K2.4(a). Both parties objected to the offense-level calculation for the § 922(g)(1) conviction. They reasoned that Application Note 4 to § 2K2.4 and our holding in United States v. Foster, 902 F.3d 654 (7th Cir. 2018), prohibited the court from apply- ing specific offense characteristics under § 2K2.1(b)(4) and § 2K2.1(b)(6)(B). The government also objected to the PSR’s base offense level of 14 for Feeney’s § 922(g)(1) conviction. In the govern- ment’s view, Feeney’s base offense level should have been 18 under § 2K2.1(a)(5) because the offense also involved a “fire- arm”—the modified firework shell—as described in 26 U.S.C. § 5845(a). Consistent with the PSR, Feeney maintained that Note 4 to § 2K2.4 precluded the court from applying an en- hanced base offense level based on an explosive or weapon when formulating his § 922(g)(1) sentence. At the sentencing hearing, the district court agreed that Note 4 in § 2K2.4 prohibited applying the specific offense 4 No. 22-2607

characteristics under § 2K2.1(b). But it sided with the govern- ment regarding the base offense level, reasoning that Note 4 only prohibits the court from applying weapon-related spe- cific offense characteristics to the underlying sentence. As a result, the court calculated the total offense level for the § 922(g)(1) conviction to be 15 (a base offense level of 18 re- duced by 3 levels for acceptance of responsibility). Combined with a criminal history category of IV, this yielded a guideline range of 30 to 37 months of imprisonment. The court imposed a within-guidelines sentence of 30 months for the § 922(g)(1) offense and a mandatory consecutive sentence of 120 months for the § 844(h)(2) offense. II. Discussion A. Standard of Review We review challenges to the procedural soundness of a sentence de novo, including challenges to a district court’s in- terpretation of the Guidelines. United States v. De La Cruz, 897 F.3d 841, 844 (7th Cir. 2018). Incorrectly calculating the guideline range is procedural error. See Rosales-Mireles v. United States, 585 U.S. 129, 134 (2018). In parsing the Guide- lines, we employ general rules of statutory construction, be- ginning with the plain language in the Guidelines and their application notes, which are generally considered authorita- tive. Foster, 902 F.3d at 657 (citing Stinson v. United States, 508 U.S. 36, 38 (1993)). B. Analysis On appeal, Feeney renews his challenge to the district court’s sentence for his conviction under § 922(g)(1). Specifi- cally, he argues that the district court erred when it applied a base offense level of 18 under § 2K2.1(a)(5) instead of a base No. 22-2607 5

offense level of 14 under § 2K2.1(a)(6). In doing so, he relies on the plain text of Note 4 to § 2K2.4. According to Feeney, Note 4 prohibits a court from double counting his possession of explosives in determining the base offense level for his § 922(g)(1) conviction because that conduct is already being punished through his conviction under 18 U.S.C. § 844(h). The “cardinal principle” of textual interpretation is to “give effect, if possible, to every clause and word” of the text. Loughrin v. United States, 573 U.S. 351, 358 (2014) (quoting Wil- liams v. Taylor, 529 U.S. 362, 404 (2000)). With this principle in mind, we begin with Note 4, which provides, in relevant part: If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense char- acteristic for possession, brandishing, use, or discharge of an explosive or firearm when de- termining the sentence for the underlying of- fense. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is account- able under § 1B1.3 (Relevant Conduct). U.S.S.G. § 2K2.4 cmt. n.4. The first sentence of Note 4 makes clear that a court may not apply a specific offense characteristic for the possession of an explosive or firearm to determine the sentence for an un- derlying conviction if that conduct is separately punished un- der § 2K2.4, as it is here. See Foster, 902 F.3d at 657–58. What is less clear from the text of Note 4, however, is whether a 6 No. 22-2607

court may apply other enhancements for the possession of ex- plosives or weapons—for example, by increasing the base of- fense level—when determining the sentence for the underly- ing conviction. This question bears directly on Feeney’s sen- tence. If the answer to this question is no, the district court erred when it applied a base offense level of 18 under § 2K2.1(a)(5), because that augmented base offense level re- lied on Feeney’s possession of a firearm as described in 26 U.S.C. § 5845(a). We address this now as a matter of first im- pression. To determine whether the district court erred in applying § 2K2.1(a)(5)’s base offense level to Feeney’s § 922(g)(1) sen- tence, we proceed in two steps. First, we ask whether Note 4’s prohibition is limited only to specific offense characteristics or whether it prohibits the application of any explosive or weapon enhancement to the underlying sentence. Second, if Note 4 prohibits any enhancement, we must determine whether augmenting a base offense level for conduct involv- ing explosives or weapons is such an “enhancement” prohib- ited by Note 4. We begin with the plain text of Note 4. The note’s first sen- tence specifically instructs courts not to apply specific offense characteristics for firearms and explosives in calculating the underlying sentence. That much is clear. But the note does not stop there. In the next sentence, the note uses language that sweeps more broadly. It continues: “A sentence under [§ 2K2.4] ac- counts for any explosive or weapon enhancement for the underly- ing offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is ac- countable under § 1B1.3 (Relevant Conduct).” U.S.S.G. No. 22-2607 7

§ 2K2.4 cmt. n.4 (emphasis added). If, as Note 4 states, a sen- tence under § 2K2.4 accounts for “any” explosive or weapon enhancement for the underlying offense, that leads us to con- clude that courts are prohibited from applying “any” explo- sive or weapon enhancement to the underlying sentence—not just those attributable to specific offense characteristics. Our conclusion regarding Note 4’s scope accords with tra- ditional rules of statutory interpretation. According to the rule against surplusage, we aim to give independent meaning to the entire text so that no part is rendered meaningless. See Loughrin, 573 U.S. at 358. Here, if we read Note 4’s prohibition as limited to specific offense characteristics as the government suggests, the word “any” would have no meaning. Indeed, such an interpretation would read the main clause of the sec- ond sentence out of the text entirely. In response, the government offers a textual argument of its own—that Note 4’s prohibition covers only specific offense characteristics because the “do not apply” command in the first sentence appears only in conjunction with specific of- fense characteristics and not “any … enhancement.” We do not see this conclusion as inevitable based on the plain text of Note 4. Instead, we read the first sentence as prohibiting dou- ble counting of special offense characteristics. Then, the sec- ond sentence broadens the scope of that prohibition to include any explosive or weapons enhancements to determine the un- derlying sentence. Besides, as discussed, narrowly focusing on the first sentence reads out what the second sentence makes clear—that a sentence under § 2K2.4 “accounts for any explosive or weapon enhancement for the underlying offense of conviction.” U.S.S.G. § 2K2.4 cmt. n.4 (emphasis added). 8 No. 22-2607

Although we base our conclusion primarily on Note 4’s plain text, our reading also comports with Note 4’s overarch- ing purpose to prevent duplicative punishment. 1 For exam- ple, the Sentencing Commission’s comments in Amendment 599 (which put in place the language of Note 4) provide that Note 4 was enacted to “avoid unwarranted disparity and du- plicative punishment.” U.S.S.G. Supp. to App. C, Amend. 599 (2000). The Commission further explained that the amend- ment was “intended to avoid the duplicative punishment that results when sentences are increased under both the statutes and the guidelines for substantially the same harm.” Id.; see also United States v. Mays, 967 F.3d 748, 753 (8th Cir. 2020) (“The stated purpose of Application Note 4 is to avoid dupli- cative punishment, known as double counting in the Guide- lines universe.”). Taking the government’s approach in this case would pun- ish Feeney twice for carrying the explosive—once in his aug- mented base offense level under § 2K2.1(a)(5) for the under- lying § 922(g)(1) conviction, and again through his § 844(h)(2) conviction for carrying an explosive during the commission of a felony. We think such a reading is inconsistent with the stated purpose of Note 4. Our view also gains support from Application Note 2 to U.S.S.G. § 1B1.2, which describes how a district court should determine the guidelines applicable to an offense under Chapter Two. It states in part that “[w]here there is more than one base level within a particular guideline, the

1 Of course, “double counting is generally permissible” unless, as

here, “the text of the guidelines expressly prohibits it.” United States v. Viz- carra, 668 F.3d 516, 519 (7th Cir. 2012). No. 22-2607 9

determination of the applicable base offense level is treated in the same manner as determination of a specific offense charac- teristic.” U.S.S.G. § 1B1.2 cmt. n.2 (emphasis added). If we are to determine the base offense level “in the same manner” as specific offense characteristics in calculating the applicable guidelines, it also stands to reason that we should treat them similarly for the purposes of Note 4’s prohibition against dou- ble counting. Finally, we offer one practical point. If we place ourselves in the shoes of the Sentencing Commission, we see little rea- son to prohibit the double counting of conduct contained in specific offense characteristics but not in augmented base of- fense levels when both punish similar conduct. True, base of- fense levels and specific offense characteristics are contained in separate subsections of the Guidelines. But despite this dif- ference in categorization, they function in the same way— both operate to increase a defendant’s overall offense level if the underlying offense involved an explosive or weapon. See United States v. Diekemper, 604 F.3d 345, 354 (7th Cir. 2010) (noting that double counting occurs when “precisely the same aspect of a defendant’s conduct factors into his sentence in two separate ways”). Given this, we think it unlikely that the Sentencing Commission would have intended to allow dou- ble counting of one category of enhancement but not the other. 2

2 In fact, this is exactly what the district court did. Acknowledging that

it could not increase the total offense level for Feeney’s § 922(g)(1) convic- tion by applying a specific offense characteristic for the explosive, it in- stead increased the base offense level for the § 922(g)(1) conviction based on the same conduct. Indeed, it did so because it found Feeney’s posses- sion of the explosive to constitute relevant conduct under § 1B1.3, despite 10 No. 22-2607

The government’s other arguments are equally unpersua- sive. First, the government contends that because the exam- ples that follow the relevant language in Note 4 all pertain to specific offense characteristics, we cannot read “any … en- hancement” to encompass anything other than specific of- fense characteristics. But the point of an example is merely to illustrate a rule’s application based on a specific set of facts— not to demonstrate the full range of circumstances to which a rule might apply. Because these examples were not meant to be all-encompassing, we think the plain language of Note 4’s first two sentences provides more reliable insight into what the Sentencing Commission intended. Second, the government also asks us to compare Note 4 of § 2K2.4 with Application Note 7 of § 2K2.1, which provides that a “defendant whose offense involves a destructive device receives both the base offense level from the subsection appli- cable to a firearm listed in 26 U.S.C. § 5845(a) … and the ap- plicable enhancement under subsection (b)(3).” U.S.S.G. § 2K2.1 cmt. n.7. According to the government, because the Sentencing Commission in Note 7 explicitly mentioned both the base offense level and the special offense characteristics, the Commission’s language in Note 4 referring to only spe- cific offense characteristics must limit the entire paragraph to specific offense characteristics. We find this attenuated com- parison unconvincing. The fact that another note from

Note 4’s admonition that Feeney’s mandatory consecutive ten-year sen- tence for violating § 844(h)(2) “accounts for any explosive or weapon en- hancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct).” U.S.S.G. § 2K2.4 cmt. n.4. No. 22-2607 11

another guideline provision refers to the two terms separately bears little on whether Note 4’s use of “any … enhancement” includes enhancements besides special offense characteristics. Having established that Note 4’s prohibition extends to “any … enhancement” and not just those based on specific of- fense characteristics, the next question is whether an aug- mented base offense level that relies on conduct involving ex- plosives or weapons counts as an “enhancement” under the text of Note 4. We conclude that it does. Because the Guidelines do not define “enhancement,” we look to its plain meaning. See United States v. Taliaferro, 211 F.3d 412, 415 (7th Cir. 2000). In simple terms, its root “en- hance” means to “heighten” or to “increase.” Enhance, Mer- riam-Webster, https://www.merriam-webster.com/diction- ary/enhance (last visited Apr. 25, 2024). Black’s Law Diction- ary further defines “enhancement” as “[a]n upward adjust- ment to a defendant’s offense level under applicable sentenc- ing guidelines.” Enhancement, Black’s Law Dictionary (11th ed. 2019). Looking to these definitions, it is clear to us that when a district court applies a higher base offense level prem- ised on use of an explosive or firearm, it is employing an “en- hancement” because a higher base offense level acts as a net increase to the defendant’s total offense level. In this case, for example, the district court’s application of § 2K2.1(a)(5) in- stead of § 2K2.1(a)(6) added four points to Feeney’s total of- fense level—up from 11 to 15. Consistent with this construction, we have used the term “enhancement” to refer to both increases based on graduated base offense levels and specific offense characteristics. See, e.g., United States v. Ruth, 966 F.3d 642, 652 (7th Cir. 2020); United States v. McDonald, 592 F.3d 808, 810 (7th Cir. 2010). 12 No. 22-2607

The government argues that the distinction between base of- fense levels and specific offense characteristics did not matter in any of these cases, and that, as a result, we were not using “enhancement” as a term of art. But if true, this only supports our conclusion that the plain meaning of “enhancement” is broad and not confined to increases based on specific offense characteristics. See Smith v. First Hosp. Lab’ys, Inc., 77 F.4th 603, 607 (7th Cir. 2023); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 101 (2012) (“[G]eneral words … are to be accorded their full and fair scope” and should not be “arbitrarily limited.”). Finally, we note that the district court’s miscalculation of the guideline range in this case was not harmless. See United States v. Bravo, 26 F.4th 387, 396 (7th Cir. 2022). The court imposed a sentence within the range it calculated, and it did not suggest that Feeney would have received the same sentence if the guideline range were lower. Id. at 396–98. III. Conclusion For these reasons, we VACATE Feeney’s sentence and REMAND the case to the district court for resentencing con- sistent with this opinion. No. 22-2607 13

KIRSCH, Circuit Judge, dissenting. This appeal asks us to re- solve a single, narrow question: Does Application Note 4 of U.S.S.G. § 2K2.4 only limit enhancements based on “specific offense characteristics,” or does it also affect the preliminary step of determining a defendant’s base offense level? The ma- jority interprets Application Note 4 to include the latter. I dis- agree. The plain text of § 2K2.4, its accompanying commentary, and the structure of the Sentencing Guidelines as a whole all indicate that “enhancement” only applies to “specific offense characteristics” and does not refer to the initial base offense level determination. The command of Application Note 4 is clear: “[D]o not apply any specific offense characteristics….” The note says nothing about the base offense level, which is a threshold determination that acts as a starting point for the Guidelines calculation. Only after defining that starting point does the district court have anything to enhance based on spe- cific offense characteristics. Therefore, I respectfully dissent. I We interpret the Sentencing Guidelines in the same way that we interpret statutes—beginning with the text of the rel- evant provision and discerning its plain meaning. United States v. Foster, 902 F.3d 654, 657 (7th Cir. 2018). In addition to that text, we consider the application notes, which are treated as part of the Guidelines themselves. United States v. Von Loh, 417 F.3d 710, 713 (7th Cir. 2005). When possible, we construe statutes so that no clause, sentence, or word is superfluous or insignificant. Duncan v. Walker, 533 U.S. 167, 174 (2001). Fur- ther, when deciding between competing understandings of a statute, we consider the objectives of the larger statutory scheme and select the meaning that is compatible with the rest 14 No. 22-2607

of the law. River Road Hotel Partners, LLC v. Amalgamated Bank, 651 F.3d 642, 651 (7th Cir. 2011). A Application Note 4 of § 2K2.4 provides: If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense char- acteristic for possession, brandishing, use, or discharge of an explosive or firearm when de- termining the sentence for the underlying of- fense. A sentence under this guideline accounts for any explosive or weapon enhancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct). U.S.S.G. § 2K2.4 n.4 (emphasis added). The dispute on appeal revolves around the italicized language in the second sen- tence. The majority concludes that the second sentence ex- pands the first sentence to apply not only to specific offense characteristics but also to base offense levels, rendering the first sentence entirely superfluous of the second. Ante, at 11. This conclusion does not comport with the plain language of Application Note 4. The first sentence of Application Note 4 acts as an une- quivocal command to district courts: “[D]o not apply” spe- cific offense characteristics for possession of an explosive to the underlying offense (here, felon in possession of a firearm). The second sentence then states the reason for that command: “A sentence under this guideline accounts for any explosive No. 22-2607 15

or weapon enhancement for the underlying offense of convic- tion ….” Nowhere does the note expand the scope of the com- mand to apply to base offense level determinations, as the ma- jority now posits. This aligns with Application Note 4’s amendment history. Before 2000, the note consisted only of the first sentence (di- recting courts not to apply specific offense characteristics). Through Amendment 599, the Sentencing Commission added the second sentence and included pertinent examples apply- ing the Guideline. The Sentencing Commission’s reason for adding this language could not have been clearer: to “clarif[y] application of the commentary.” U.S.S.G. Supp. to App. C, Amend. 599 (2000). At no point did the Sentencing Commis- sion suggest that the amendment was meant to expand the scope of the note beyond its original language to limit base offense level determinations. This is buttressed by the Com- mission’s subsequent citations to several example cases where courts misinterpreted the original language of the note. Notably, in all of those cases, the courts had wrongly applied enhancements based on specific offense characteristics rather than on base offense level determinations. See, e.g., United States v. Willett, 90 F.3d 404, 407–08 (9th Cir. 1996) (applying a specific offense weapons enhancement because the defendant used different weapons in the underlying offense). Accord- ingly, the Sentencing Commission amended Application Note 4 to account for those errors and resolve disparate inter- pretations of the note’s original text. The Background further reinforces this limited scope of Application Note 4. See United States v. Womack, 610 F.3d 427, 432 (7th Cir. 2010) (relying on the Guidelines background sec- tion to ascertain “Congress’s preference”). Namely, the 16 No. 22-2607

Background of § 2K2.4 provides: “To avoid double counting, when a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for explosive or firearm discharge, use, brandish- ing, or possession is not applied in respect to such underlying offense.” (emphasis added). Again, the text makes clear that the purpose of the Guideline is to limit offense level increases based on specific offense characteristics rather than on initial base offense level determinations (which are not increases at all, as explained below). This alone resolves our question on appeal. B Notwithstanding the fact that the Sentencing Commission did not expand the scope of the note by adding the second sentence, I also disagree with the majority’s broad interpreta- tion of “enhancement.” To analyze the term, I first describe the boundary in the Guidelines between the two central con- cepts at the heart of this case—base offense level determina- tions on the one hand and specific offense characteristics on the other. Second, I provide an overview of how the Guide- lines have generally used enhancement as a term of art with those concepts. And third, with this context in mind, I parse the text of Application Note 4 itself. The Guidelines meticulously explain how a district court is to calculate a Guidelines range when imposing a sentence: “The court shall determine the kinds of sentence and the guideline range as set forth in the guidelines … by applying the provisions of this manual in the following order ….” U.S.S.G. § 1B1.1(a). Continuing, the Guidelines distinguish between a base offense level determination and an applica- tion of specific offense characteristics: namely, the court shall No. 22-2607 17

“[d]etermine the base offense level and apply any appropriate specific offense characteristics, cross references, and special instructions contained in the particular guideline in Chapter Two in the order listed.” Id. § 1B1.1(a)(2). In other words, once the district court identifies the relevant Chapter Two section applicable to a conviction, it naturally must determine the base offense level first. In many cases, there is only one possi- ble base offense level. See, e.g., id. § 2B3.2 (single base offense level of 18 for extortion by force). But in other instances, like this case, multiple base offense level options are available that depend on the defendant’s conduct. Only after determining the base offense level does the court then apply enhancements to that base offense level—based on specific offense charac- teristics—to calculate the total offense level. See, e.g., United States v. Prado, 41 F.4th 951, 954 (7th Cir. 2022) (“The proper calculation would begin with the 20 base offense level, add a four-level enhancement for the number of firearms and a four-level enhancement for the obliterated serial number fire- arm, thus totaling 28, and then adding the additional four- level enhancement for the use in connection with a felony of- fense followed by the three-level deduction for acceptance of responsibility, yielding a total offense level of 29.”). Unsurprisingly, the Guidelines only use “enhancement” when referring to increases beyond a static, already-deter- mined base offense level. I acknowledge that our precedent on occasion has described choosing the higher of two base of- fense level options as an enhancement. See, e.g., United States v. Cherry, 855 F.3d 813, 815 (7th Cir. 2017) (referring to the higher base offense level applicable in § 2K2.1(a)(3) as an en- hancement). But those cases did not involve interpretation of the term as used in the Guidelines, and perhaps in the future, our language should be more precise. Rather than being used 18 No. 22-2607

as a term of art, enhancement was, at most, used to denote the increase in value from one base offense level to the next, in line with its broad English definition. But the term is not used so broadly in the Guidelines. I have not found one example where the Guidelines use enhancement to refer to picking one base offense level over another. Rather, the Guidelines con- sistently distinguish base offense level determinations from enhancement applications based on specific offense charac- teristics, emphasizing that the two concepts cover different aspects of a sentence, even if they apply based on the same conduct. See, e.g., U.S.S.G. § 2A2.2 Background (distinguish- ing the base offense level of aggravated assault from the spe- cific offense characteristic weapon enhancement even if both apply based on the same conduct). In fact, this exact distinction is made in one of the Guide- lines at issue. Section 2K2.1(a) offers eight different base of- fense level options for convictions related to the unlawful re- ceipt, possession, or transport of firearms. One of those op- tions, § 2K2.1(a)(5), instructs courts to apply a base offense level of 18 if the offense involved a firearm described in 26 U.S.C. § 5845(a), which includes destructive devices. Then, separately, as a specific offense characteristic under § 2K2.1(b)(3)(B), the court is instructed to increase the base of- fense level by two if the offense involved a destructive device other than a portable rocket, missile, or device used to launch a rocket or missile. Thus, if a defendant unlawfully possesses a destructive device, he automatically begins at a higher base offense level of 18 under § 2K2.1(a)(5) and receives an addi- tional two-level enhancement under § 2K2.1(b)(3)(B) for the same conduct. Application Note 7 of § 2K2.1 plainly ad- dresses this scenario: “A defendant whose offense involves a destructive device receives both the base offense level from the No. 22-2607 19

subsection applicable to a firearm listed in 26 U.S.C. § 5845(a) … and the applicable enhancement under subsection (b)(3).” (emphasis added). The note emphasizes that this result is ac- ceptable because “[s]uch devices pose a considerably greater risk to the public welfare than other National Firearms Act weapons.” The majority dismisses Application Note 7 as ir- relevant. Ante, at 10–11. But the note exemplifies how the Guidelines have consistently used enhancement as a term of art and have eschewed the broad meaning the majority adopts. Ante, at 11. And the note relates directly to the crimi- nal conduct in this case. Further, it illustrates the point that, while base offense levels and specific offense characteristics “function in the same way” by ultimately yielding a higher total offense level, ante, at 9, they have wholly separate pur- poses in punishing a defendant’s criminal conduct. All told, § 2K2.1, like the Guidelines as a whole, defines a clear bound- ary between base offense level determinations and enhance- ments based on specific offense characteristics. This boundary mirrors the language of Application Note 4 at issue. As in every other case where the Guidelines refer to an enhancement, the use of the term in the note’s second sentence must refer to enhancements based on specific of- fense characteristics. See River Road, 651 F.3d at 651 (interpret- ing a statutory term while considering the overall statutory scheme and context). The Sentencing Commission’s own use of enhancement confirms this interpretation. Recall that the original language of Application Note 4, before Amendment 599, was nearly identical to the first sentence of the note as it stands today—the text did not reference enhancement, only specific offense characteristics. See United States v. Foster, 902 F.3d 654, 659–60 (7th Cir. 2018) (comparing the language of § 2K2.4 before and after the amendment). Nonetheless, the 20 No. 22-2607

Commission described the note’s original language as having “previously stated that if a sentence was imposed under § 2K2.4 in conjunction with a sentence for ‘an underlying of- fense,’ no weapon enhancement should be applied.” U.S.S.G. Supp. to App. C, Amend. 599 (emphasis added). In its own words, then, the Commission used enhancement and specific offense characteristics interchangeably when referring to the note’s pre-amendment text. Moreover, Application Note 4 is replete with other clues confirming that “enhancement” refers only to increases to an established base offense level based on specific offense char- acteristics. For instance, the note gives several examples of en- hancements that would not apply under the Guideline; un- surprisingly, each example relates to enhancements based on specific offense characteristics. Not one example precludes, as an “enhancement,” the selection of a higher base offense level. Though these examples are not “all-encompassing,” ante, at 10, the wholesale omission of any examples of base offense level determinations cannot be disregarded. Two final textual points. First, the majority relies on dic- tionaries to ascertain the plain meaning of “enhancement.” Ante, at 11 (noting the term means to “increase” or “heighten”). I have no quarrel with that definition. But one cannot increase the value of something that does not yet exist. Without first determining a base offense level, there is noth- ing to increase or heighten. And choosing a higher base of- fense level out of two (or more) options does not imply that the lower option is the default from which an increase takes place. Second, the majority places far too much weight on “any enhancement” in the second sentence (and on the word “any” No. 22-2607 21

in particular) to support an expansive interpretation of the term that wholly ignores the first sentence. Ante, at 7 (empha- sizing “any” as broadening the scope of the first sentence). In the majority’s view, my interpretation would render this lan- guage meaningless and create statutory surplusage. Id. Stated differently, why would the Sentencing Commission have added the second sentence, and “any enhancement” in partic- ular, if not to include base offense level determinations? But the use of “any” in the second sentence is not surplus- age because the first sentence itself used the term—prohibit- ing “any specific offense characteristics.” U.S.S.G. § 2K2.4 n.4 (emphasis added). The Sentencing Commission’s decision to use “any” again in subsequent sentences does not broaden the meaning of enhancement. See Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (noting “the ‘normal rule of statutory construc- tion’ that ‘identical words used in different parts of the same act are intended to have the same meaning’”) (quotation omit- ted). Simply, the first sentence refers to “any specific offense characteristic,” while the second sentence refers to “any en- hancement.” Based on the plain language of the note and its statutory background, this is a distinction without a differ- ence. Rather, it is the majority’s interpretation that now renders portions of Application Note 4 meaningless: the introductory sentence to be specific. If the majority is correct that “any en- hancement” refers to both specific offense characteristics and higher base offense levels, then the note’s initial, narrow ref- erence to “specific offense characteristics” would be redun- dant and pointless. The Sentencing Commission might as well have struck “specific offense characteristics” from the text be- cause the “any enhancement” language fully encompasses 22 No. 22-2607

the concept. We do not interpret statutes this way. See Dun- can, 533 U.S. at 174. C The majority also contends that applying § 2K2.4 only to specific offense characteristics would lead to impermissible double-counting. But there is no rule against double counting in the Guidelines; instead, “double counting is presumed per- missible ….” United States v. Cook, 850 F.3d 328, 334 (7th Cir. 2017) (quotation omitted); see also United States v. Vizcarra, 668 F.3d 516, 518 (7th Cir. 2012) (“[T]he default rule is that the same conduct may determine the base offense level and also trigger the cumulative application of enhancements and ad- justments unless a specific guideline instructs otherwise.”). And in this case, as I noted above, Application Note 7 in § 2K2.1 distinguishes a defendant’s base offense level due to his use of a destructive device under § 2K2.1(a)(5) from the two-level enhancement under § 2K2.1(b)(3)(B) based on the same conduct. Correspondingly, the limitation in Application Note 4 of § 2K2.4 only serves to limit the application of the two-level § 2K2.1(b)(3)(B) enhancement, not the initial base offense level determination. That is precisely what happened in this case. Feeney was convicted of violating 18 U.S.C. § 922(g)(1), which bars felons from possessing a firearm, and 18 U.S.C. § 844(h)(2), which prohibits the carrying of an explosive during the commission of a felony. Under U.S.S.G. § 2K2.4, the district court calcu- lated the § 844(h)(2) Guidelines range to be the mandatory term of imprisonment required by statute. The § 922(g)(1) Guidelines range was determined separately under U.S.S.G. § 2K2.1. There, the district court first addressed the threshold step of determining the base offense level. Because Feeney No. 22-2607 23

used a destructive device, his base offense level was 18 under § 2K2.1(a)(5). The majority views this as an enhancement be- cause Feeney was assigned a base offense level of 18 rather than a base offense level of 14 under § 2K2.1(a)(6) (the base offense level for possession by a prohibited person). But the district court merely determined which of the eight possible base offense levels applied to Feeney based on his criminal conduct. Only then could the court enhance that offense level based on specific offense characteristics. Because of Applica- tion Note 4’s command, however, the court correctly re- frained from enhancing Feeney’s offense level by two under § 2K2.1(b)(3)(B) (a specific offense characteristic). That is all that the note required. The majority interprets Application Note 4 in a manner in- consistent with the plain text of the applicable Guidelines and its amendment history. “It is not our place to rewrite the guidelines,” United States v. Joseph, 50 F.3d 401, 403 (7th Cir. 1995), and I would not do so here. For the reasons outlined above, I respectfully dissent.