1The Honorable Mark W. Bennett, Chief Judge, United States District Court for

the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 00-2241

___________

United States of America, *

*

Appellee, *

* Appeal from the United States 

v. * District Court for the

* Northern District of Iowa.

Randall Dean Rohwedder, *

*

Appellant. *

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Submitted: December 13, 2000

Filed: March 5, 2001

___________

Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD, and HANSEN,

Circuit Judges.

___________

WOLLMAN, Chief Judge.

After Randall Dean Rohwedder pled guilty to various drug and firearms

possession crimes, the district court1 sentenced him to a term of imprisonment of 188

months. Rohwedder appeals his sentence, arguing that the court erred when it assessed
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enhancements under the sentencing guidelines for his possession of a sawed-off

shotgun and for possession of a firearm in connection with a felony offense. We affirm.

I.

On July 14, 1998, with Rohwedder’s consent, a local law enforcement officer

searched the Mason City, Iowa, apartment where Rohwedder lived with his girlfriend,

looking for items unrelated to this case. The officer noticed several guns in a glassfaced gun cabinet in the living room. The officer knew that Rohwedder had been

convicted of a felony and thus was likely unable to lawfully possess guns.

Shortly thereafter, police officers returned to the apartment with a warrant

authorizing them to search for weapons. The officers seized a number of guns from the

living room cabinet, a loaded handgun from under the sofa, and several more guns,

including a sawed-off shotgun, from a locked cabinet in the bedroom that Rohwedder

and his girlfriend shared. Both Rohwedder and his girlfriend had access to the cabinet

keys, which were kept in the bedroom. During this search, the officers discovered

drugs and objects connected with the trafficking of drugs, which were later seized after

the officers had obtained an additional warrant. In particular, the officers discovered

and seized methamphetamine from under the sofa and from the locked bedroom gun

cabinet.

Pursuant to a plea agreement, Rohwedder pled guilty to possession with intent

to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), to being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and to being an

unlawful user of a controlled substance in possession of a firearm, in violation of 18

U.S.C. § 922(g)(3).

In determining Rohwedder’s sentence based on the firearms charges, the district

court started with a base offense level of 22 under sentencing guidelines section
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2K2.1(a)(3), enhanced it two levels pursuant to section 2K2.1(b)(3) (possession of a

destructive device), four levels pursuant to section 2K2.1(b)(5) (possession of firearm

in connection with a felony offense), and seven more levels through enhancements

unchallenged in this appeal, ending with an adjusted offense level of 35. 

II.

We review the district court’s application of the sentencing guidelines de novo

and its factual findings for clear error. United States v. Bad Wound, 203 F.3d 1072,

1076 (8th Cir. 2000).

A. Destructive Device Enhancement

Pursuant to section 2K2.1(b)(3), an offense level is enhanced two levels if the

offense involved a “destructive device,” as defined in 26 U.S.C. § 5845(a). U.S.

Sentencing Guidelines Manual § 2K2.1(b)(3) & cmt. n.4. It is undisputed that the

seized sawed-off shotgun meets that statutory definition. Rohwedder contends that the

court incorrectly applied the subsection (b)(3) enhancement because (1) he did not

know that the shotgun was shortened and (2) the enhancement constitutes double

counting because the harm inherent in the shotgun had already been counted when the

court set the base offense level pursuant to section 2K2.1(a)(3).

First, Rohwedder argues that the government did not present sufficient evidence

to prove that he knew the characteristics of the shotgun, stating that his girlfriend had

brought it into the apartment and placed it into the locked cabinet essentially without

his knowledge.

In United States v. Otto, 64 F.3d 367, 370 (8th Cir. 1995), a case involving a

sawed-off rifle, we held, citing Staples v. United States, 511 U.S. 600 (1994), that to

convict a defendant for possessing a firearm as defined in § 5845(a), the government
2

 We have also noted that the “quasi-suspect” character of a sawed-off shotgun

may require a less stringent mens rea showing, see United States v. Barr, 32 F.3d 1320,

1323-24 (8th Cir. 1994); Staples, 511 U.S. at 611-12. This case does not require our

consideration of a lesser standard, because the government presented sufficient

evidence under the more stringent standard.

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“must prove that the defendant knew of the features of the weapon that brought it

within the scope of” unlawful possession, in particular, of a reduction in barrel and

overall length.2 Here, the district court found that Rohwedder knew that he possessed

a sawed-off shotgun. The court noted Rohwedder’s plea agreement stipulations to

knowing possession and the inconsistencies in Rohwedder’s testimony. The court also

observed Rohwedder’s experience with weapons, stating that it “would be readily

apparent to a defendant who was in possession of as many guns, including long rifles

and the like, that this would be a destructive device.”

We discern no error in the court’s finding. In the plea agreement, Rohwedder

stipulated to knowingly possessing all of the guns, including the sawed-off shotgun.

Following the general “knowing possession” stipulation was a stipulation targeting the

characteristics of the sawed-off shotgun in particular:

The [sawed-off] shotgun had its barrel and stock sawed off such that it

had a barrel length of approximately 11 1⁄2 inches and overall length of

approximately 19 inches, . . . which firearm was not registered . . . , but

the defendant does not admit that he knew that the shotgun’s length was

sufficiently short such that he was required to register the firearm . . . .

Additionally, the cabinet containing the shotgun was in Rohwedder’s bedroom

and was locked with a key to which Rohwedder admittedly had access. Along with the

shotgun, the bedroom cabinet contained several guns that Rohwedder does not dispute

knowingly possessing. The shotgun itself was more than six inches shorter than the

minimum length allowable, an alteration that without question would be noticeable to
3Section 2K2.1(a)(3) sets a base offense level of 22 if the “offense involved a

firearm described in 26 U.S.C. § 5845(a) . . . , and the defendant had one prior felony

conviction of either a crime of violence or controlled substance offense . . . .”

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Rohwedder, who was familiar with guns, particularly long guns. Rohwedder admitted

to ownership of most of the seized weapons, many of which were long rifles and

shotguns, and to using them for hunting. We find no clear error in the district court’s

conclusion that Rohwedder knew that the shotgun had been shortened.

Second, Rohwedder contends that the (b)(3) destructive device enhancement was

applied improperly because the shotgun had already been referred to by the court in

determining Rohwedder’s base offense level pursuant to section 2K2.1(a)(3), and thus

possession of the shotgun was improperly double counted.3

“Double 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.

Hipenbecker, 115 F.3d 581, 583 (8th Cir. 1997) (internal quotation marks and citation

omitted). Double counting is permissible if the Sentencing Commission intended that

result and each section concerns conceptually separate notions relating to sentencing.

Id. We review this matter de novo. Id.

Even assuming that subsections (a)(3) and (b)(3) each individually fully account

for the harm of possession of a sawed-off shotgun, Rohwedder’s claim fails because

the Commission intended the result and each section concerns conceptually separate

notions relating to sentencing. The district court noted that although the subsection

(b)(3) enhancement “looks like double count[ing],” the guidelines specifically state that

applying both sections is proper. See U.S. Sentencing Guidelines Manual § 2K2.1,

cmt. n.11 (“A defendant whose offense involves a destructive device receives both the
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base offense level from the subsection applicable to a firearm listed in 26 U.S.C. §

5845(a) (e.g., . . . (a)(3) . . .), and a two-level enhancement under subsection (b)(3).”).

We agree that the application note makes clear that the Commission intended

both subsections (a)(3) and (b)(3) are to be applied to offenses involving destructive

devices such as a sawed-off shotgun. Because Rohwedder does not argue that the

application note violates the constitution or a federal statute or reflects a plainly

erroneous reading of section 2K2.1, it binds us in this case. United States v. Hawkins,

181 F.3d 911, 913 (8th Cir. 1999); United States v. Justice, 56 F.3d 1329, 1330 (11th

Cir. 1995) (per curiam) (because note 11 is not “plainly erroneous or inconsistent with”

section 2K2.1, it controls regardless of conflict with other guideline).

The subsections are also conceptually separate. Section 2K2.1 part (a) sets out

base offense levels for certain firearms crimes, taking into account factors such as a

defendant’s criminal history, whether the defendant is a “prohibited person,” and the

types of firearms involved in the offense. Part (b), in contrast, concerns the specific

characteristics of the offense charged that serve to enhance the base offense level.

Subsection (b)(3) involves a specific definition of destructive device and applies

regardless of the base offense level applicable to a particular defendant. We conclude

that these subsections are sufficiently conceptually separate notions to support the

application of both in this case. See Hawkins, 181 F.3d at 913 (looking at structure of

2K2.1 and comparing (a)(6) with (b)(4)); United States v. Shepardson, 196 F.3d 306,

312-14 (2d Cir. 1999) (analyzing section 2K2.1(a)(4), (a)(7), and (b)(4)); United States

v. Brown, 169 F.3d 89, 93 (1st Cir. 1999) (analyzing section 2K2.1(a)(2) and (b)(4)).

Accordingly, the district court correctly enhanced Rohwedder’s offense level pursuant

to section 2K2.1(b)(3).
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B. Firearm In Connection with a Felony

Finally, Rohwedder argues that the court erred when it assessed a four-level

enhancement pursuant to section 2K2.1(b)(5) because Rohwedder possessed firearms

in connection with the methamphetamine offense. Rohwedder contends that there was

no evidence that any of the weapons were connected with the methamphetamine or the

distribution conviction, and that he possessed all of the weapons for hunting purposes.

Pursuant to section 2K2.1(b)(5), the sentencing court applies a four-level

enhancement “if the defendant . . . possessed any firearm . . . in connection with

another felony offense . . . .” “‘In connection with’ means ‘that the firearm must have

some purpose or effect with respect to,’ and ‘must facilitate, or have the potential of

facilitating,’ another felony offense; ‘its presence or involvement cannot be the result

of accident or coincidence.’” United States v. Fredrickson, 195 F.3d 438, 439-40 (8th

Cir. 1999) (per curiam) (quoting United States v. Regans, 125 F.3d 685, 686 (8th Cir.

1997)). We review for clear error the court’s factual findings about the purpose

underlying the possession of the firearm. Id.

Rohwedder argues that, because nearly all of the guns were found in cabinets,

one of which was locked, and thus were spatially isolated from the drugs, there was no

showing by the government that the weapons had any connection with criminal activity.

Because firearms are tools of the drug trade, however, the weapons’ close physical

proximity to the significant quantity of drugs provides a sufficient nexus between the

two to support an enhancement pursuant to section 2K2.1(b)(5). Regans, 125 F.3d at

686. Several of the seized weapons were indeed in a locked cabinet in the bedroom,

but in that same cabinet was the majority of the methamphetamine, a fact that negates

Rohwedder’s claim of spatial isolation. A loaded handgun was found under the couch

in the living room, as were more drugs and drug-related paraphernalia. The living room

gun cabinet, located approximately eight to ten feet from the couch, also contained a
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loaded handgun. Thus, the district court did not err in finding that the weapons were

possessed in connection with the drug offense.

Rohwedder’s final contention is that because he was merely holding the

methamphetamine for someone else, his weapons were unconnected to the drugs.

Leaving aside Rohwedder’s guilty plea to possession with intent to distribute, we have

noted that weapons provide protection for those who merely possess drugs. United

States v. Belitz, 141 F.3d 815, 818 (8th Cir. 1998); Regans, 125 F.3d at 686.

Likewise, we reject Rohwedder’s contention that because the weapons were all for

hunting purposes, they should not have been found to be connected to the drug offense,

particularly in light of the nature of several of the weapons, such as the sawed-off

shotgun, which is a quasi-suspect weapon not regularly used for hunting, see Barr, 32

F.3d at 1324 (“A defendant who observes [a quasi-suspect weapon] cannot possess it

with innocence.”). Accordingly, the district court did not err in applying the four-level

enhancement.

The judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.