### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT March 26,

2004 THOMAS K. KAHN CLERK [PUBLISH]
IN THE UNITED STATES COURT OF APPEALS FOR THE EL EVENTH C IRCUIT

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_______ No. 03-14 031 Non-Argument Calendar

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_______ D.C. Docket No. 02-00057-CR-OC -10-GRJ UNITED STATES OF AMERICA, Plaintiff-Appellee,
versus JAMES MICHAEL

PHILLIPS, Defenda nt-Appell ant.

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_________ Appeal f rom t he United States D istrict C ourt for th e Middle Di strict of

Florida

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________ (March26, 2004) Before A NDERS ON, H

ULL a nd WIL SON, Circuit Ju dges. PER CURIAM: James Michael Phillips appeals his 21-month sentence for failure to pay court-or dered chi ld support, in violation of the De adbeat Pa rents Puni shmen

t Act,1 All citati ons are t o the 2002 edition of

the Unite d States Se

ntencing Guideline s.
2 This Court r

eviews de novo Phillips’s c laim that the distric t court e ngag ed in impermissible double counting. See United States v. Matos-Rodriguez , 188 F.3d 1300, 1310 (11th Cir. 1999). 2 18 U.S.C. § 228(a)(3). T his appeal involves a single issue: whether the district court engaged in impermissible “ double counting” by adding a two-level enhancement under U.S. S.G. § 2B1.1(b)(7)(C) 1 to Phillips’ s base off ense leve l. 2 We conc lude that th e applica tion of § 2B1. 1(b)(7)( C) does not result in imperm issible double counting and, thus, affirm Phillips’s sentence. Before addres sing the merits of Philli ps’s appeal, we fi rst discu ss § 2B1.1 and why Phillips was sentenced pursuant to § 2B1.1. As stated above, Phillips was convicte d of viol ating 18 U.S.C. § 228(a)(3 ). The commentary to U.S.S.G. § 2J1.1 states tha t “[f ]or off enses involv ing the wil lful fail ure to pay

court-or dered chi ld support (violations of 18 U.S.C. § 228), the most analogous guideline is § 2B1.1.” U.S.S .G. § 2J 1.1, cm

t. n.2. Theref

ore, Phi llips was p roperly sentence d pursuant to § 2B1.1. Section 2B1.1, however, is not limited to those who willfully fail to pay court-or dered chi ld support. Rather, § 2B1.1 addresses a wide var iety of crim es, including, but not lim

ited to, la rceny , em bezzlem ent, and o ther forms of theft.3

Although § 2B 1.1(a) a ssigns a base offense l evel of six

to a widevariety

of crim es, § 2B1. 1(b)(7)( C) provide s for a tw o-level e nhancement if the offense o f conviction involves “ a violation of any prior, s pecific j udicial or admin istrative order, injunction, decree, or process not addressed elsewhere in the guidelines.” U.S.S.G. §§ 2B1.1(a) & (b)(7)(C). The district court concluded that failure to pay court-or dered chi ld support co nstituted a violation of

a prior j udicial or

der and increased Phillips’s offense level by two. Phillips contends that this constitutes imper missib le double c ounting. “Im perm issible doubl e counting oc curs only when one p art of the Guideline s is applied

to increa se a defe ndant’s p unishment on accoun t of a kind of harm that has al

ready been fully

accounte d for by

applicati on of anothe r part of the Guidelines.” United States v. Matos-Rodriguez , 188 F.3d 1300, 1309 (11th Cir. 1999) (internal quotations and citation omitted). Double counting is permissible, however, when (1) the Sentencing Com mission intended the result, and (2) each guideline se ction in ques tion “c oncerns c onceptuall y sepa rate notio ns relate d to sentencing.” Id. at 1310 (internal quotations and citation omitted). This Court presum es that, unless spec ifically directed otherwis e, the S entencing C omm ission intended that separ ate guide lines sect ions be ap plied cumulat ively. Id
.4

As stated above, § 2B1.1 provides for a base offense level of six and applies to man y ty pes of criminal

offenses . The S entencing C omm ission added

a twolevel enhancement when the theft or other ty pe of offense involved a violation of a court order. In United States v. Naves , 252 F.3 d 1166 (11th C ir. 2001) , this Court addressed a similar situa tion in wh ich a defend ant was conv icted of carjack ing. As noted in Naves , carjacking cri mes are to be sent enced und er § 2B3.1. See Naves , 252 F.3d at 1168; U.S.S.G. § 2B3.1, cmt statutory provisions. However, § 2B3.1 app lies to more than j ust carj acking. R ather, § 2B3.1 prov ides a base offense lev el of twenty that applies t o robberi es in gener al. See U.S.S.G. § 2B3.1(a). It is a separate provision of § 2B3.1 that provides for a two-level enhancement if t he offense i nvolved carjacking. See U.S.S.G. § 2B3.1(b)(5). In Naves , this Cour

t concluded

that the tw o-level e nhancement for carja cking under

the general robber

y guide line did not c onstitute im permissible double counting. 252 F.3d at 1169. In so doing, the Naves Court state d tha t “[w]e must a ssumethat the S entencing C omm ission knew

that the tw o point enhancem

ent at issue

herein w ould be im

posed in eve ry ca se involving a conviction under § 2119 [carjacking], that it intended this result, and that in effect it was creating a base level of 22 for a conviction under § 2119.” Id. at 1168-6 9.5

Likewis e, we m

ust assum e in Philli

ps’s ca se that the

Sentencing Com

missio n knew that a two-le vel enhanc emen t would be a

pplied in every con

viction for willful f ailure to p ay cou

rt-order ed child supp ort and tha

t the net e ffect w as to create a base off

ense leve l of eight f

or convicti ons under § 22 8. “The Sentencing Com

missio n is authori zed to provi de such an enhancement as long as th ere is a r

ational re lationship be tween the enhancem

ent and a legitimate governmental obj ective.” Naves , 252 F.3d at 1169 (cit ation omitted ). The burden is on Phil lips to es tablish that the g uidelin e provisi on is irrat ional. Id. (citation omitt ed). Ph illips has not met t his burden. Obviously , the Se ntencing Co mm ission could h ave crea

ted a sepa rate guideline f

or willf ul failure to pay child suppor

t with a ba se offens e of eight. The fact that the Sentencing Comm ission elected not to draft a separate guideline does not render the application of the two-level enhancement under § 2B1.1(b)(7)(C) irrational. Rather, it is r

ational fo r the Sent encing Com missio n to use § 2B1. 1 to establish a base offense level of six for the culpability incident to offenses involv ing larcen y, embezzlement, and other fo rms of theft. See Naves , 252 F.3d at 1169. It is also rati onal for th e Sentenc ing Com missio n to then pro vided a tw olevel increase “to reflect the heightened seriousness” of a violation of a court order. See Naves , 252 F.3 d at 1169. T he Senten cing Com

missio n was wit

hin its6

statutory authority when dra fting § 2B1. 1(b)(7)( C) and Phi llips’s s entence i s not the result of im perm issible doubl e counting. Theref ore, we affirm Phillips’ s 21- month sentence. AFFIRMED.