United States of America v. Nicolas Rodriguez

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2222
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
NICOLAS R ODRIGUEZ ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 CR 250 — Matthew F. Kennelly, Judge.
____________________
A RGUED NOVEMBER 29, 2017 — DECIDED M ARCH 7, 2018
____________________
Before WOOD, Chief Judge, and R IPPLE and K ANNE, Circuit
Judges.
K ANNE, Circuit Judge. Nicolas Rodriguez pled guilty to
dealing firearms without a license and distributing cocaine. In
his plea agreement, Rodriguez admitted to selling cocaine to
an informant on one occasion and selling firearms to that in-
formant on eight other occasions.

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2 No. 17-2222
The plea agreement also suggests that Rodriguez was
aware that the guns he sold were being used to commit felo-
nies. Indeed, Rodriguez admitted that he and the informant
discussed the use of the weapons. For example, Rodriguez
told the informant “You got 50 in the box. You better shoot
them flakes.” (R. 62 at 5.) Rodriguez also asked if the inform-
ant’s “boys” had used a Tec-9 semi-automatic pistol that he
had previously sold. (Id. at 5–6.) The informant responded
that they had used it once. After those conversations, Rodri-
guez continued to sell the informant firearms.
At sentencing, the district court applied a four-level en-
hancement under U.S.S.G § 2K2.1(b)(5) for trafficking fire-
arms (“trafficking enhancement”). And it applied an addi-
tional four-level enhancement under U.S.S.G § 2K2.1(b)(6)(B)
for transferring a firearm with the knowledge, intent, or rea-
son to believe that it would be used or possessed in connec-
tion with another felony offense (“other-felony enhance-
ment”). The enhancements produced a guideline range of 135
to 168 months. Ultimately, the district court imposed a below
guidelines sentence of 108 months’ imprisonment. Rodriguez
now appeals.
I. A NALYSIS
Rodriguez argues that the district court’s simultaneous ap-
plication of the trafficking and other-felony enhancements
was impermissible double counting. Neither the text of the
enhancements nor their application note supports his asser-
tion.

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No. 17-2222 3
A. The “trafficking” and “other-felony” enhancements
U.S.S.G § 2K2.1 addresses enhancements for the “Unlaw-
ful Receipt, Possession, or Transportation of Firearms or Am-
munition; Prohibited Transactions Involving Firearms or Am-
munition.” The trafficking enhancement requires a four-level
increase to the base offense level if the defendant “engaged in
the trafficking of firearms.” § 2K2.1(b)(5). The other-felony
enhancement has multiple triggers. But the one relevant
here—Part (B)—requires a minimum four-level increase if the
defendant “used or possessed any firearm or ammunition in
connection with another felony offense” or if the defendant
“possessed or transferred any firearm or ammunition with
knowledge, intent, or reason to believe that it would be used
or possessed in connection with another felony offense.”
§ 2K2.1(b)(6)(B).
The Sentencing Commission’s commentary gives further
guidance on the simultaneous application of these enhance-
ments and provides the following:
In a case in which three or more firearms were both
possessed and trafficked, apply [the trafficking en-
hancement]. If the defendant used or transferred one
of such firearms in connection with another felony
offense [the other-felony enhancement] also would
apply.
§ 2K2.1 cmt. n.13(D).
B. Simultaneous application of the trafficking and other felony
enhancements
“In the context of guidelines sentencing, the term ‘double
counting’ refers to using the same conduct more than once to
increase a defendant’s guidelines sentencing range.” United

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4 No. 17-2222
States v. Vizcarra, 668 F.3d 516, 519 (7th Cir. 2012). But double
counting is permitted unless the text of the guidelines or the
authoritative commentary expressly prohibits it. Id. at 519-20.
Thus, to find that the court erred by applying the trafficking
and other-felony enhancements simultaneously, we must con-
clude that the guidelines expressly prohibit it.
Rodriguez argues that Application Note 13(D) does just
that. First, he observes that the other-felony enhancement ap-
plies in two distinct scenarios: (1) when the defendant uses or
possesses the firearms in connection with another felony or
(2) when the defendant possesses or transfers the firearms
with knowledge, intent, or reason to believe that they will be
used in connection with another felony offense. He then
points to the language of the application note, supra, which
does not mention the “knowledge, intent, or reason to be-
lieve” language present in the second scenario. See § 2K2.1
cmt. n.13(D). This omission, he argues, means that the note
permits double counting only in the first scenario, when the
defendant himself uses or possesses the firearms in connec-
tion with another felony. It would not apply in the second sce-
nario, when the defendant transfers the firearms and the re-
cipient commits the other-felony offense.
Were Rodriguez’s reading correct, the court could not ap-
ply both sentencing enhancements because his conduct falls
under the second scenario. But Rodriguez misreads the appli-
cation note. First, the note mentions that both enhancements
should be applied if the defendant “transferred any firearm.”
§ 2K2.1 cmt. n.13(D). “Transferred” only appears in the sec-
ond scenario. § 2K2.1(b)(6)(B). Second, reading the note to for-
bid simultaneous application of the trafficking enhancement
and the other-felony enhancement when the court bases the

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No. 17-2222 5
other-felony enhancement on the defendant’s “knowledge, in-
tent, or reason to believe” reads part of that clause out of the
guideline. Indeed, any time a defendant transfers a firearm
with the knowledge, intent, or reason to believe that it would
be used in connection with another felony they will neces-
sarily have trafficked firearms. As a result, the guidelines fall
far short of expressly prohibiting simultaneous application of
the trafficking enhancement and the other-felony enhance-
ment.
II. CONCLUSION
Nicolas Rodriguez argues that the district court improp-
erly double counted when it applied both the trafficking and
other-felony enhancements. But double counting is only for-
bidden when the text of the guidelines or the commentary ex-
pressly prohibits it. Because the guidelines do not prohibit
simultaneous application of the trafficking and other-felony
enhancements, we AFFIRM the district court’s sentence.

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