United States Court of Appeals

For the Eighth Circuit

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No. 16-4026

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Sulif I. Wilkins

lllllllllllllllllllll Defendant - Appellant

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Appeal from United States District Court 

for the Western District of Missouri - Kansas City

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 Submitted: September 18, 2017

 Filed: April 12, 2018

[Unpublished]

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Before SMITH, Chief Judge, MELLOY and GRUENDER, Circuit Judges.

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PER CURIAM.

Defendant Sulif I. Wilkins pleaded guilty to one count of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appeals his
sentence, raising three separate challenges to the district court’s application of the

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United States Sentencing Guidelines. We affirm.

Wilkins’s girlfriend reported that he had assaulted her, fired shots in her

direction, and threatened to shoot her mother and siblings. Officersrecovered a bullet

from the drywall of her apartment. Approximately two weeks later, officers

approached Wilkins regarding an unrelated homicide investigation. They directed

him to get on the ground. Officers reported that Wilkins reached under his shirt and

pulled what appeared to be a firearm from near his waistband. He then leaned into

the driver’s side of a vehicle and reached towards the bottom of the driver’s seat

before fleeing. Officers pursued and captured him. Officers then looked into the

vehicle and could see the handle of a firearm extending from under the driver’s seat. 

Officers retrieved the firearm, identifying it as a .40-caliber semiautomatic handgun

loaded with fifteen rounds in the magazine and one in the chamber. 

Wilkins was arrested and charged with one count of being a felon in possession

of a firearm and one count of possessing a stolen firearm. He pleaded guilty to the

first count, and the second count was dismissed. The district court sentenced him to

120 months’ imprisonment, the statutory maximum.

As a first point of error, Wilkins argues the district court erroneously classified

his prior Missouri conviction for second degree robbery, Missouri Revised Statutes

§ 569.030 (2006), as a “crime of violence” under U.S.S.G. § 2K2.1(a)(2). The district

court properly classified the prior conviction. See United States v. Swopes, No. 16-

1797, slip op., 2018 WL 1525825, — F.3d — (8th Cir. Mar. 29, 2018) (en banc)

(holding § 569.030 qualifies as a “violent felony” under 18 U.S.C. § 924(e));see also

The Honorable Howard F. Sachs, United States DistrictJudge for the Western 1

District of Missouri.

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United States v. Vinton, 631 F.3d 476, 484 (8th Cir. 2011) (interpreting “crime of

violence” and “violent felony” synonymously).

As a second point of error, Wilkins argues the district court erroneously applied

a two-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(4)(A) based on a finding

that the gun at issue in the present offense was stolen. We need not address the

substance of this claim because the district court specifically noted that it would not

have changed the overall sentence even had this enhancement not applied. See

United States v. Martinez, 821 F.3d 984, 988–89 (8th Cir. 2016) (error is harmless

“where the district court specifies the resolution of a particular issue did not affect the

ultimate determination of a sentence, such as when the district court indicates it

would have alternatively imposed the same sentence even if a lower guideline range

applied” (citations omitted)). 

As the third point of error, Wilkins presents a two-pronged argument

challenging the application of U.S.S.G. § 2K2.1(b)(6)(B) based on the district court’s

determination that he possessed the firearm in connection with another felony

offense. According to Wilkins, the district court’s finding was clearly erroneous, and,

in any event, application of this Guideline resulted in impermissible “doublecounting.” 

The district court determined Wilkins had committed a felony under Missouri

Revised Statutes § 571.030.1(1) by carrying a concealed firearm. Unobjected-to

paragraphs of the presentence investigation report contain factual averments

establishing this violation. See United States v. Killen, 761 F.3d 945, 949 (8th Cir.

2014) (“[T]he court may accept the facts as true and rely on the unobjected-to facts

in determining whether to impose an enhancement.” (quoting United States v.

Douglas, 646 F.3d 1134, 1137 (8th Cir. 2011))). The district court’s finding was not

clearly erroneous.

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“[D]ouble counting occurs when one part of the Guidelines is applied to

increase a defendant’s punishment on account of a kind of harm that has already been

fully accounted for by application of another part of the Guidelines.” United States

v. Chapman, 614 F.3d 810, 812 (8th Cir. 2010) (quoting United States v.

Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997)). Illegally carrying a concealed

firearm in violation of Missouri law requires the proof of different elements than the 

underlying § 922(g) offense in this case. Applying U.S.S.G. § 2K2.1(b)(6)(B) based

upon the cited Missouri offense, therefore, punishes a different harm than that

accounted for in the Guideline’s base offense level for § 922(g). See United States

v. Jackson, 633 F.3d 703, 705–07 (8th Cir. 2011); see also United States v. Long, 563

F. App’x 498, 499–500 (8th Cir. 2014) (per curiam).

We affirm the judgment of the district court.

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