[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-10021         ELEVENTH CIRCUIT
                         Non-Argument Calendar    SEPTEMBER 17, 2010
                       ________________________        JOHN LEY
                                                        CLERK
                D.C. Docket No. 3:08-cr-00003-JTC-ECS-6

UNITED STATES OF AMERICA

                                               lllllllllllllllllllllPlaintiff-Appellee,

                                  versus


BRANDON MCCLURE,
a.k.a. Mickey Mouse,

                                           lllllllll llllllllllllDefendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                           (September 17, 2010)

Before TJOFLAT, BARKETT and FAY, Circuit Judges.

PER CURIAM:
       Brandon McClure appeals his 125-month sentence following his guilty plea

for conspiring to steal firearms from a federal licensee and to receive stolen

firearms, in violation of 18 U.S.C. § 371; stealing firearms from a federal licensee,

in violation of 18 U.S.C. § 922(u); and receiving stolen firearms, in violation of 18

U.S.C. §922(j). McClure’s conviction was based on his participation in the

burglary of a federally-licenced firearms dealer, during which he and his 13 co-

defendants stole over 80 firearms.

       On appeal, McClure argues that the district court improperly calculated his

sentencing guidelines range by increasing his base offense level for possessing a

firearm in connection with another felony offense, under U.S.S.G. § 2K2.1(b)(6).

McClure also argues that the application the § 2K2.1(b)(6) sentencing

enhancement constituted impermissible double counting because the district court

also increased his base offense level for possessing a stolen firearm, under

U.S.S.G. § 2K2.1(b)(4)(A). After careful review, we affirm.1



       1
          McClure also argues, for the first time on appeal, that the application of the §
2K2.1(b)(4)(A) sentencing enhancement constituted impermissible double counting because the
district court also increased his base offense level due to the number of firearms involved in his
offenses, under U.S.S.G. § 2K2.1(b)(1)(C). He contends that applying both enhancements
constituted impermissible double counting.
         Because these sentencing enhancements deal with conceptually separate notions relating
to sentencing – possession of a stolen firearm and the number of firearms involved, respectively
– the district court did not plainly err by applying both in calculating McClure’s sentencing
guidelines range.

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      Section 2K2.1(b)(6) provides for a four-level increase in a defendant’s base

offense level “[i]f the defendant used or possessed any firearm or ammunition in

connection with another felony offense . . . .” § 2K2.1(b)(6). The enhancement

applies “if the firearm or ammunition facilitated, or had the potential of

facilitating, another felony offense . . . .” 

n.14(A). For the purposes of

this enhancement, “another felony offense” is defined as “any Federal, state, or

local offense, other than the . . . firearms possession or trafficking offense,

regardless of whether a criminal charge was brought, or a conviction obtained.”

n.14(C).

      Although McClure argues that the § 2K2.1(b)(6) enhancement was not

applicable to him, the guidelines commentary states that it applies “in a case in

which a defendant who, during the course of a burglary, finds and takes a firearm,

even if the defendant did not engage in any other conduct with that firearm during

the course of the burglary . . . .” 

n.14(B). McClure does not dispute

that the facts he admitted at his plea colloquy were sufficient to show that he took

the firearms during the course of a burglary. Rather, he contends that comment

14(B) does not apply in a case such as this, where the object of the burglary was to

steal firearms. However, the commentary makes no distinction between

circumstances where a burglary was committed in order to steal firearms, and

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those where a defendant found and took a firearm while committing a burglary for

some other reason. Comment 14(B) states that the enhancement is warranted

“because the presence of the firearm has the potential of facilitating another felony

offense[,]” which is true whether the theft of the firearm was merely incidental to

the burglary or was its object. 

n.14(B). Therefore, the application of

the § 2K2.1(b)(6) enhancement was not erroneous.

      McClure also argues that the application the § 2K2.1(b)(6) sentencing

enhancement constituted impermissible double counting because it addressed the

same kind of harm that was fully accounted for by the § 2K2.1(b)(4)(A)

sentencing enhancement he received for possessing stolen firearms. However, the

kind of harm accounted for under § 2K2.1(b)(6), possession of a firearm during a

burglary, is conceptually distinct from the notion that a defendant should be

punished more severely for possessing a firearm that was stolen. Because the §

2K2.1(b)(4)(A) sentencing enhancement did not fully account for the kind of harm

addressed by § 2K2.1(b)(6), the district court did not err in applying both

enhancements in calculating McClure’s sentencing guidelines range.

      AFFIRMED.




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