United States Court of Appeals

For the Eighth Circuit

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No. 17-2414

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Chrishawn Lloyd Stuckey

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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Submitted: May 14, 2018

Filed: June 28, 2018

[Unpublished]

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Before SHEPHERD, MELLOY, and GRASZ, Circuit Judges.

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PER CURIAM.

Chrishawn Stuckey pled guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g). Stuckey appeals his sentence, asserting the district
court1

 committed procedural error in applying a sentencing enhancement set forth in

the U.S. Sentencing Guidelines Manual (USSG). We affirm.

On September 16, 2016, Cedar Rapids, Iowa police officers responded to a call

at a convenience store. The caller reported that a black male had entered the store,

showed her a handgun in his waistband, and stated that he would not shoot her

because she was being decent to him. The caller reported that the individual appeared

to be very intoxicated, and she provided a description of his clothing. Shortly after

responding to the call, officers observed Stuckey, who matched the description given

by the caller, standing on the street. Officers approached Stuckey and found that he

had the smell of an alcoholic beverage on his breath, his speech was slurred, and he

had bloodshot and watery eyes. A loaded .45 caliber handgun was in Stuckey’s

waistband. He was arrested for public intoxication and subsequently tested positive

for marijuana and cocaine. Stuckey was later indicted for one count of being a felon

in possession of a firearm.

The U.S. Probation Office prepared a presentence report (PSR) that calculated

a base offense level of 14 and recommended a four-level upward adjustment under

USSG § 2K2.1(b)(6)(B) for Stuckey’s possession of a firearm in connection with

another felony offense, namely the Iowa felony offense of carrying weapons in

violation of Iowa Code § 724.4(1). After applying this adjustment and others not in

dispute in this appeal, the PSR determined that Stuckey’s total offense level was 15,

his criminal history category was III, and his advisory sentencing range was 24 to 30

months.

The district court overruled Stuckey’s objection to the sentencing enhancement

under USSG § 2K2.1(b)(6)(B) and sentenced him to 30 months imprisonment. In this

1

The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa.

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appeal, Stuckey asserts that application of the enhancement set forth in USSG

§ 2K2.1(b)(6)(B) amounts to impermissible double counting because a violation of

18 U.S.C. § 922(g) always constitutes a violation of Iowa Code § 724.4(1). This

identical argument was asserted and rejected in United States v. Walker:

Iowa Code § 724.4(1), unlike 18 U.S.C. § 922(g), requires proof that the

defendant went armed “with a dangerous weapon concealed on or about

the person,” or went armed with a handgun “within the limits of any

city,” or “knowingly carrie[d] or transport[ed] [a handgun] in a vehicle.”

771 F.3d 449, 453 (8th Cir. 2014) (alterations in original). Bound by Walker, we

reject this argument.

Next, Stuckey argues that Walker should be re-examined. As only the en banc

court may overrule a panel opinion, this claim also fails. United States v. ANWAR,

880 F.3d 958, 971 (8th Cir. 2018) (“Only the en banc court has [the] authority to

overrule a prior panel opinion, whether in the same case or in a different case.”

(alteration in original) (internal quotation marks omitted)).

Finally, Stuckey attempts to factually distinguish Walker by pointing out that

he carried his handgun in his waistband while standing on a street corner, unlike the

defendant in Walker who carried or transported a handgun in his vehicle. Stuckey

does not explain why this factual distinction is significant, and we find that it is not

because a violation of § 922(g) does not require proof of either of these factual

scenarios. See 18 U.S.C. § 922(g); Walker, 771 F.3d at 453.

The judgment of the district court is affirmed.

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GRASZ, Circuit Judge, with whom MELLOY, Circuit Judge, joins, concurring.

I agree we are bound by United States v. Walker, 771 F.3d 449 (8th Cir. 2014). 

I write separately because I believe Walker was incorrectly decided. As expressed by

Judge Melloy and Judge Bye in prior cases dealing with this issue, “because 18 U.S.C.

§ 922(g)(1) and Iowa Code § 724.4(1) require essentially the same conduct, applying

a sentencing enhancement based on the Iowa offense constitutes impermissible

double-counting.” United States v. Boots, 816 F.3d 971, 976 (8th Cir. 2016) (Melloy,

J., concurring) (citing United States v. Sanford, 813 F.3d 708, 714-17 (8th Cir. 2016)

(Bye, J., concurring)). 

I recognize the Iowa law technically has additional elements beyond the federal

offense. See United States v. Maldonado, 864 F.3d 893, 901-02 (8th Cir. 2017)

(explaining that in addition to possessing the firearm, the Iowa law requires that the

defendant conceal the weapon, or be armed with a handgun within city limits, or

knowingly carry or transport a handgun in a vehicle), cert. denied, 138 S. Ct. 702

(2018). Yet, the reality is that most felons in possession of a firearm will inevitably

violate one of those requirements. Here, for example, Stuckey violated Iowa’s law

because he possessed a firearm within the city limits of Cedar Rapids. 

In my view, the sentence enhancement set forth in USSG § 2K2.1(b)(6)(B)

should not be available in circumstances such as this, where Stuckey’s act of

possessing the firearm in violation of federal law is inextricably entwined with his act

of possessing a firearm within city limits in violation of Iowa law. Increasing

Stuckey’s sentence “because he was present in a city rather than in the country . . .

does not further the purpose of the ‘other felony’ enhancement, and I find it hard to

believe the Sentencing Commission would have intended such a result either.” 

Sanford, 813 F.3d at 718 (Bye, J., concurring).

I would urge the Court, sitting en banc, to reconsider the holding in Walker. 

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