In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1588

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DANIEL KATALINIC,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06-CR-323-2—James F. Holderman, Chief Judge.

____________

ARGUED NOVEMBER 13, 2007—DECIDED DECEMBER 19, 2007

____________

Before COFFEY, EVANS, and SYKES, Circuit Judges.

EVANS, Circuit Judge. Daniel Katalinic pleaded guilty

to bank robbery (18 U.S.C. § 2113(a)) and carrying a

firearm in relation to a crime of violence (18 U.S.C.

§ 924(c)). At sentencing, the district court added two

levels to the base offense level on the robbery count

because Katalinic’s codefendant made a death threat

(U.S.S.G. § 2B3.1(b)(2)(F)) during the robbery. Katalinic

then received a 37-month sentence for the robbery to

be followed by an 84-month term on the firearm count.

The primary issue on appeal is whether Application Note

4 to § 2K2.4 of the sentencing guidelines prohibits, as

double counting, an upward adjustment for a death threat

that is related to the firearm for which the defendant
2 No. 07-1588

received a mandatory consecutive sentence under § 924(c).

This is the first time we have considered the issue, but

we agree with our sister circuits and hold that Application Note 4 prohibits the adjustment. We therefore vacate

Katalinic’s sentence and remand the case to the district

court for resentencing.

On May 4, 2006, Katalinic and Charles MaciorowskiMaltz robbed a bank in Mt. Prospect, Illinois. Katalinic

carried a duffel bag when they entered, while Maltz held

a loaded shotgun. They announced the robbery, and

Maltz asked for the bank manager and where the vault

was located. Maltz then gave the shotgun to Katalinic,

took the duffel bag, and climbed over the teller counter

to get to the vault. Meanwhile, Katalinic remained in the

lobby holding the gun. While the manager was trying

to get the vault open, Maltz told her to “hurry or I’ll

fucking shoot you.” When the manager could not open the

vault, Maltz took money from two teller drawers, and the

two men fled from the bank.

After Katalinic entered guilty pleas to the two charges

against him, a probation officer recommended in a PSR

that the base offense level for the robbery should be

increased by two levels for the statement Maltz made to

the manager, which constituted a death threat under

U.S.S.G. § 2B3.1(b)(2)(F). The PSR did not recommend a

further increase based on Katalinic brandishing the

shotgun because Application Note 4 to § 2K2.4 instructs not to do so when, as here, a defendant is also

convicted for carrying a firearm in a crime of violence

under § 924(c). The PSR added two points for taking

property of a financial institution, see § 2B3.1(b)(1),

subtracted three points because Katalinic accepted responsibility, see U.S.S.G. § 3E1.1, and arrived at a recommended offense level of 21. With a category I criminal

history, Katalinic’s guidelines range for the robbery was 37

to 46 months imprisonment. His firearm conviction,
No. 07-1588 3

however, required a minimum 84-month term to be

served consecutively to any other term of imprisonment.

At sentencing, Katalinic objected to the adjustment for

the death threat, arguing that it, like brandishing a gun,

constituted double counting prohibited by Application

Note 4 to § 2K2.4. Because the death threat was related to the firearm, he argued, it could not be used to

increase his base offense level for the robbery when he

was also subject to a mandatory sentence for the separate

firearm conviction. The court rejected that argument,

however, reasoning that a death threat, unlike possessing

or brandishing a firearm, is not specifically listed as a

prohibited weapon adjustment in Application Note 4. The

court then found that the PSR correctly calculated the

guidelines ranges for the robbery and the firearm, and

after considering the 18 U.S.C. § 3553(a) factors, the

court sentenced Katalinic to 37 months imprisonment

for the robbery conviction to be followed by a 7-year term

(84 months) on the firearm conviction.

On appeal, Katalinic first argues that the district court

improperly increased the offense level for his robbery

conviction based on Maltz’s death threat to the bank

manager. Katalinic contends that the prohibition against

double counting in Application Note 4 to § 2K2.4 includes

a prohibition against increasing a sentence for a death

threat that is related to the firearm forming the basis

of the § 924(c) conviction. Application Note 4 instructs

that when a court imposes a sentence for a conviction

under § 924(c) in addition to a sentence for an underlying

offense, such as the robbery in this case, the sentencing

court should “not apply any specific offense characteristic

for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence for the

underlying offense.” U.S.S.G. § 2K2.4, cmt. n.4. Because

Maltz threatened to “shoot” the manager, Katalinic

argues, the threat was related to the firearm and could not
4 No. 07-1588

1 The double-counting prohibition was located in Note 2 until

2002 when the Sentencing Commission moved the prohibition to

Note 4. See U.S.S.G., app. C, amend. 642 (2002). We will refer to

the note as Note 4 throughout this opinion and point out

when we are discussing earlier versions.

be used to increase his base offense level for the robbery under U.S.S.G. § 2B3.1(b)(2)(F).

We review a legal interpretation of the sentencing

guidelines and amendments de novo. United States v.

Howard, 352 F.3d 332, 335 (7th Cir. 2003); see also United

States v. Carbaugh, 141 F.3d 791, 792 (7th Cir. 1998). An

application note is “authoritative unless it violates the

Constitution or a federal statute, or is inconsistent

with, or a plainly erroneous reading of” the guideline it

interprets. Stinson v. United States, 508 U.S. 36, 38

(1993); see also United States v. Dyer, 464 F.3d 741, 743

(7th Cir. 2006). Even though the guidelines are no longer

mandatory after United States v. Booker, 543 U.S. 220

(2005), courts must still begin the sentencing process

by calculating the guideline sentence and must, therefore, use the commentary to interpret the guidelines. See

United States v. Mooney, 425 F.3d 1093, 1100-01 (8th Cir.

2005).

This case turns on an amendment in 2000 to Application Note 4 of § 2K2.4.1

 Before the amendment, Application Note 4 included examples of the types of firearm

characteristics a court could not use to increase an underlying sentence when also imposing a mandatory firearm sentence under § 924(c):

Where a sentence under this section is imposed in

conjunction with a sentence for an underlying offense,

any specific offense characteristic for the possession,

use, or discharge of an explosive or firearm (e.g.,
No. 07-1588 5

§ 2B3.1(b)(2)(A)-(F) (Robbery)) is not to be applied in

respect to the guideline for the underlying offense.

U.S.S.G. § 2K2.4 cmt. n.2 (1998). The listed examples,

§ 2B3.1(b)(2)(A)-(F), are the firearm-related, specific offense characteristics a sentencing court must impose for

robbery, including making a death threat, § 2B3.1(b)(2)(F).

Courts interpreted the note to mean that they could not

even use a death threat to increase the base offense level

for an underlying offense if the defendant was also convicted of carrying a firearm under § 924(c) because the

note directly referred to the death threat adjustment. See

United States v. Smith, 981 F.2d 887, 892-93 (6th Cir.

1992) (reasoning that “it is clear that the Sentencing

Commission viewed an express threat of death as the

equivalent of possession, use, or discharge of a firearm

in the course of a robbery”); see also United States v.

Franks, 230 F.3d 811, 814 (5th Cir. 2000); United States v.

Triplett, 104 F.3d 1074, 1081-82 (8th Cir. 1997); United

States v. Duran, 4 F.3d 800, 804 (9th Cir. 1993). Most

of the courts concluded, however, that the threat had to

be related to the firearm to be considered double counting. Franks, 230 F.3d at 814; Triplett, 104 F.3d at 1082;

Smith, 981 F.2d at 893.

In the 2000 amendment to Application Note 4, the

Sentencing Commission removed the reference to

§ 2B3.1(b)(2)(A)-(F) without discussing the death-threat

issue. See U.S.S.G. § 2K2.4 cmt. n.4; U.S.S.G., app. C,

amend. 599 (2000). Application Note 4 now prohibits a

sentencing court from applying “any specific offense

characteristic for possession, brandishing, use, or discharge of” a firearm in an underlying offense when the

court has imposed a sentence for a § 924(c) conviction,

including any adjustment that would apply based on

relevant conduct. U.S.S.G. § 2K2.4 cmt. n.4. The Commission was presumably aware of the caselaw prohibit-
6 No. 07-1588

ing death-threat adjustments in this context and tacitly

approved the interpretation by not criticizing it. See

United States v. O’Flanagan, 339 F.3d 1229, 1235 (10th

Cir. 2003) (presuming that Sentencing Commission

approved of judicial interpretations of guidelines when

making minor changes and failing to mention caselaw);

see also United States v. Mitchell, 353 F.3d 552, 556 (7th

Cir. 2003) (using “general rules of statutory construction”

when interpreting sentencing guidelines). Indeed, without addressing this specific issue, we have said generally

that after the 2000 amendment, Application Note 4

“included the same general admonition against double

counting” as it did before the amendment and that § 2K2.4

“continues to generally prohibit the application of specific

offense characteristics relating to possession, brandishing,

use, or discharge of a firearm to the underlying offense.”

Howard, 352 F.3d at 337, 338-39.

The two circuits to consider whether the amended

Application Note 4 still prohibits an upward adjustment

for a death threat have concluded that it does. See United

States v. Hazelwood, 398 F.3d 792, 798-800 (6th Cir. 2005);

United States v. Reevey, 364 F.3d 151, 158-59 (4th Cir.

2004). Both the Fourth and Sixth Circuits reasoned

that the new language necessarily encompasses a death

threat made in relation to a firearm, concluding that the

“relevant inquiry” is “whether the threat-of-death enhancement was applied ‘for possession, brandishing, use, or

discharge of’ a firearm.” Reevey, 364 F.3d at 158-59

(quoting U.S.S.G. § 2K2.4 cmt. n.4); accord Hazelwood,

398 F.3d at 799-800. The Hazelwood court emphasized

that the note “precluded the use of enhancements for any

firearm-related conduct” that was part of the underlying offense. Id. at 799.

Although we have never addressed this precise issue, our

cases discussing Application Note 4’s general double-
No. 07-1588 7

counting prohibition are not in tension with the analysis in

Reevey and Hazelwood. Specifically, we have held that

Application Note 4 prohibits an increase in the sentence

for an underlying offense “for the same weapon and the

same conduct that underlie the § 924(c) conviction,”

but not if the offense level increase and the mandatory

§ 924(c) sentence were “imposed for different underlying

conduct.” United States v. White, 222 F.3d 363, 373 (7th

Cir. 2000). Thus, in United States v. Mrazek, we held

that a defendant who committed several armed robberies

but was convicted under § 924(c) for only one of them could

receive weapon adjustments for the other robberies. 998

F.2d 453, 454-55 (7th Cir. 1993). Similarly, in White, we

held that a defendant who brandished a gun and used a

bomb during a bank robbery could receive a weapon

adjustment based on the bomb despite having received a

§ 924(c) sentence for the gun. 222 F.3d at 374-76.

Another part of Application Note 4 also supports the

conclusion that a death threat relating to the firearm

cannot be used to increase the offense level for the underlying offense. Application Note 4 instructs sentencing

courts not to “apply any weapon enhancement in the

guideline for the underlying offense” if “a co-defendant, as

part of the jointly undertaken criminal activity, possessed

a firearm different from the one for which the defendant

was convicted under” § 924(c). U.S.S.G. § 2K2.4 cmt. n.4.

If a defendant’s sentence cannot be increased based on a

codefendant’s use of a firearm, it seems anomalous to

nevertheless allow the defendant’s sentence to be increased

based on his codefendant’s threat of death—a less serious

offense characteristic as evidenced by the fewer points

added for a death threat than for using a firearm. See

U.S.S.G. § 2B3.1(b)(2)(A)-(F).

We choose to adopt the rule used by our sister circuits

that death threats related to the firearm forming the

basis of the § 924(c) sentence cannot be double counted
8 No. 07-1588

by increasing the base offense level for the underlying

crime. Prohibiting double counting in this context comports with both the language in Application Note 4 and

the intent of the Sentencing Commission.

Applying this rule, the district court erred because

Maltz’s death threat was related to the shotgun for

which Katalinic received a mandatory sentence under

§ 924(c). While Katalinic brandished the shotgun, Maltz

told the manager to hurry or he would “shoot” her. The

threat to “shoot” was thus directly related to the gun

carried into the bank to facilitate the robbery. See Reevey,

364 F.3d at 159 (holding that court could not use threats

made during kidnaping after defendant had brandished

gun to increase offense level because threats specifically

to “shoot” victim necessarily involved firearm for which

defendant received § 924(c) sentence). Moreover, both

men brandished the shotgun in the lobby before Maltz

went back to the vault, making it clear that the men could

use the shotgun to follow through on a threat to “shoot.”

Because Katalinic and Maltz, as codefendants in jointly

undertaken criminal activity, are accountable for each

other’s reasonably foreseeable conduct, it does not matter that Katalinic was in the lobby with the shotgun

when Maltz made the “Hurry or I’ll fucking shoot you”

threat. See U.S.S.G. § 1B1.3(a)(1)(B); United States v.

Bailey, 227 F.3d 792, 800 (7th Cir. 2000). And Katalinic

does not challenge the district court’s finding that

Maltz’s statement was a death threat that was reasonably foreseeable to Katalinic. Thus, because the death

threat was related to the shotgun, the district court

should not have increased Katalinic’s robbery sentence

based on Maltz’s threat.

Because the district court misapplied the sentencing

guidelines in calculating the guidelines range, we must

remand the case for resentencing. See United States v.

Scott, 405 F.3d 615, 617 (7th Cir. 2005). If the district
No. 07-1588 9

court had not improperly adjusted Katalinic’s base

offense level upward two levels for the death threat under

§ 2B3.1(b)(2)(F), Katalinic’s total offense level would have

been 19, which would have resulted in an imprisonment

range of 30 to 37 months for the robbery conviction. The

district court sentenced Katalinic to 37 months, the lowest end of the guidelines range for the higher offense level

the court calculated with the threat adjustment. Faced

with a lower guidelines range, the district court may

have sentenced Katalinic differently.

Katalinic also argues on appeal that the presumption of

reasonableness applied to sentences within the guidelines

range by appellate courts has produced a de facto mandatory sentencing regime in violation of United States v.

Booker, 543 U.S. 220 (2005). Counsel withdrew that

contention at oral argument, conceding that Rita v. United

States, 127 S.Ct. 2456, 2462 (2007), has foreclosed it.

Therefore, we do not address this issue.

For the foregoing reasons, we VACATE Katalinic’s

sentence and REMAND the case for resentencing.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-19-07