RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0208p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WAYNE RUSSELL FUGATE,

Defendant-Appellant.

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No. 19-6163

Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 5:19-cr-00038-3—Danny C. Reeves, District Judge.

Decided and Filed: July 10, 2020

Before: MOORE, SUTTON, and WHITE, Circuit Judges.

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COUNSEL

ON BRIEF: Whitney True Lawson, TRUE GUARNIERI AYER, LLP, Frankfort, Kentucky, 

for Appellant. Charles P. Wisdom, Jr., John Patrick Grant, UNITED STATES ATTORNEY’S 

OFFICE, Lexington, Kentucky, for Appellee.

MOORE, J., delivered the opinion of the court in which WHITE, J., joined. SUTTON, J. 

(pp. 12–14), delivered a separate dissenting opinion.

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OPINION

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KAREN NELSON MOORE, Circuit Judge. Wayne Russell Fugate pleaded guilty to 

being a felon in possession of a firearm in connection with a firearms-trafficking operation. At 

sentencing, the district court applied two separate enhancements for the same conduct: an 

>
No. 19-6163 United States v. Fugate Page 2

enhancement under U.S.S.G. § 2K2.1(b)(5) for engaging in trafficking of firearms, and an 

enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing or trafficking firearms in 

connection with another felony—here, knowingly trafficking stolen firearms under 18 U.S.C. 

§ 922(j). We hold that applying the § 2K2.1(b)(6)(B) enhancement based on knowingly 

trafficking stolen firearms under § 922(j) was impermissible double-counting under the 

Sentencing Guidelines. We accordingly REVERSE the district court’s sentence of Fugate to 97 

months’ imprisonment and REMAND for resentencing.

I. BACKGROUND

Fugate sold stolen firearms and other property that he acquired from co-defendants 

conducting widespread thefts from automobiles across Kentucky, Ohio, Tennessee, and West 

Virginia. R. 112 (Sent’g Hr’g Tr. at 8–9, 12–13, 15) (Page ID #371–72, 375–76, 378). The 

authorities recovered twenty-five firearms in their search of Fugate’s residence, and Fugate’s 

wife tracked down and turned over an additional seven firearms that Fugate had sold. Id. at 9 

(Page ID #372). Fugate could not say how many firearms he had sold, or where exactly they 

came from (other than that they were taken from vehicles). Id. at 10 (Page ID #373). He 

admitted to the police that he sold them to drug traffickers and gang members. Id. at 11 (Page ID 

#374). The authorities were able to determine that at least some of the firearms that Fugate had 

possessed or trafficked truly were stolen. Id. at 16 (Page ID #379). Fugate himself admitted that 

he knew that some of the firearms had been stolen. Id. at 17 (Page ID #380).

Fugate was indicted on two charges: (1) being a felon in possession of a firearm in 

violation of 18 U.S.C. § 922(g)(1),1 and (2) receipt, possession, or trafficking of firearms and 

ammunition, “knowing and having reasonable cause to believe the firearms and ammunition 

were stolen,” in violation of 18 U.S.C. § 922(j). R. 1 (Indictment at 5–7) (Page ID #5–7). On 

May 13, 2019, Fugate pleaded guilty to the § 922(g)(1) charge. R. 63 (Plea Agreement at 1–2, 

¶¶ 1, 3) (Page ID #145–46). In return, the Government agreed to dismiss the § 922(j) charge. Id. 

at 1, ¶ 1 (Page ID #145).

1Previously, Fugate had been convicted of the felony offense of possession of firearms by an unlawful user 

of controlled substances. R. 63 (Plea Agreement at 2, ¶ 3) (Page ID #146).
No. 19-6163 United States v. Fugate Page 3

The Presentence Report (“PSR”) calculated Fugate’s total offense level under the 

Sentencing Guidelines to be 27, with a Category II Criminal History. R. 108 (PSR at 40) (Page 

ID #300). After starting with a base offense level of fourteen, the PSR recommended multiple 

enhancements: (1) a six-level enhancement under § 2K2.1(b)(1)(C) because the offense 

involved at least twenty-five but less than ninety-nine firearms; (2) a two-level enhancement 

under § 2K2.1(b)(4)(A) because some firearms were stolen; (3) a four-level enhancement under 

§ 2K2.1(b)(5) because Fugate engaged in the trafficking of firearms; and (4) a four-level 

enhancement under § 2K2.1(b)(6)(B) because Fugate possessed or trafficked the firearms “in 

connection with another felony offense, or possessed or transferred any firearm or ammunition 

with knowledge, intent, or reason to believe that it would be used or possessed in connection 

with another felony offense.” R. 108 (PSR at 6, ¶¶ 21–24) (Page ID #314). The PSR also 

recommended a three-level reduction for acceptance of responsibility. Id. at 7, ¶ 30 (Page ID 

#315). Altogether, the calculated Guidelines range for sentencing was 78 to 97 months’ 

imprisonment. R. 108 (PSR at 40) (Page ID #300).

At sentencing, the district court applied the enhancements recommended in the PSR, 

including the two separate four-level enhancements under § 2K2.1(b)(5) and § 2K2.1(b)(6)(B). 

See R. 112 (Sent’g Hr’g Tr. at 22–26) (Page ID #385–89). Fugate objected to the district court’s 

application of the § 2K2.1(b)(6)(B) enhancement, which was premised on both a § 922(j) 

violation for knowingly trafficking stolen firearms and the fact that he sold the firearms to drug 

traffickers and gang members likely to use or possess the firearms in connection with another 

felony. Id. at 23–24 (Page ID #386–87). The district court overruled Fugate’s objections and 

sentenced him to 97 months’ imprisonment—the top of the Guidelines range. Id. at 22–27, 36 

(Page ID #385–90, 399); R. 104 (Judgment at 2) (Page ID #291). The district court considered 

Fugate’s family support, work history, assistance to law enforcement, and addiction issues, but 

found that the severity of his crime, his central role in the trafficking scheme, and his failure to 

reform his past conduct warranted a more stringent sentence. R. 112 (Sent’g Hr’g Tr. at 26–36) 

(Page ID #389–99). Fugate did not object to the district court’s consideration of these factors. 

Id. at 40 (Page ID #403).
No. 19-6163 United States v. Fugate Page 4

Fugate retained his right to appeal the final sentence pursuant to the Plea Agreement. 

R. 63 (Plea Agreement at 4, ¶ 8) (Page ID #148). We have jurisdiction over his timely appeal.

II. DISCUSSION

“We review a district court’s sentence for procedural and substantive reasonableness, 

applying the abuse of discretion standard.” United States v. Seymour, 739 F.3d 923, 929 (6th 

Cir. 2014). “Our review of procedural reasonableness includes determining whether the district 

court properly calculated a defendant’s Guidelines range.” Id. Fugate makes several challenges 

to the procedural and substantive reasonableness of his sentence. Ultimately, we must reverse.

Fugate challenges the district court’s application of the § 2K2.1(b)(6)(B) enhancement 

based on both a § 922(j) violation for knowingly trafficking stolen firearms and his sale of the 

firearms to drug traffickers and gang members likely to use or possess the firearms in connection 

with another felony. We review de novo the district court’s interpretation of the Sentencing 

Guidelines and review its findings of fact for clear error. United States v. Brown, 579 F.3d 672, 

677 (6th Cir. 2009). We give deference to the district court’s application of the Guidelines to the 

facts. Id. “In the specific context of the § 2K2.1(b)(6)(B) firearm enhancement, ‘we review the 

district court’s factual findings for clear error and accord due deference to the district court’s 

determination that the firearm was used or possessed in connection with the other felony, thus 

warranting application of the . . . enhancement.’” United States v. Jackson, 877 F.3d 231, 236 

(6th Cir. 2017) (quoting Seymour, 739 F.3d at 929). “The government bears the burden of 

establishing the factors supporting this enhancement by a preponderance of the evidence.” 

Seymour, 739 F.3d at 929.

Fugate pleaded guilty to knowing possession of firearms as a felon in violation of 

§ 922(g)(1). In exchange for his plea, the Government agreed to drop the charge for knowingly 

trafficking stolen firearms under § 922(j). But at sentencing, the Government argued that Fugate 

should be subject to multiple enhancements for trafficking the firearms—first, under 

§ 2K2.1(b)(5) for trafficking firearms, and second, under § 2K2.1(b)(6)(B) for possessing or 

trafficking knowingly stolen firearms in violation of § 922(j) and for selling the firearms to drug 

traffickers and gang members. Finding that Fugate indeed had trafficked stolen firearms 
No. 19-6163 United States v. Fugate Page 5

knowingly under § 922(j), the district court applied the § 2K2.1(b)(6)(B) enhancement, in 

addition to a firearms-trafficking four-level enhancement under § 2K2.1(b)(5). That meant that 

Fugate was punished twice for trafficking firearms—once simply for engaging in the trafficking 

of firearms under § 2K2.1(b)(5), and once for knowingly trafficking stolen firearms under 

§ 2K2.1(b)(6)(B).2

Under § 2K2.1(b)(6)(B), a four-level sentencing enhancement applies “[i]f the defendant 

. . . [1] used or possessed any firearm or ammunition in connection with another felony offense; 

or [2] possessed or transferred any firearm or ammunition with knowledge, intent, or reason to 

believe that it would be used or possessed in connection with another felony offense.” The 

district court applied the enhancement to Fugate because (1) he unlawfully possessed the 

firearms in connection with another felony—knowingly trafficking stolen firearms under 

§ 922(j)—and (2) he transferred the firearms with knowledge or reason to believe that the new 

owners would use or possess the firearms in connection with another felony offense. Fugate 

argues that neither rationale can be sustained on appeal.

Whether a § 2K2.1(b)(6)(B) enhancement can be premised on a firearms possession or 

trafficking offense when the court already has applied an enhancement under § 2K2.1(b)(5) is an 

issue of first impression. Usually, district courts apply the § 2K2.1(b)(6)(B) enhancement when 

the defendant used the firearms in connection with a completely distinct crime, like drug 

trafficking. See, e.g., United States v. Sweet, 776 F.3d 447, 450 (6th Cir. 2015) (trading firearms 

for drugs); United States v. Harris, 552 F. App’x 432, 437–38 (6th Cir. 2014) (same); United 

States v. Shanklin, 924 F.3d 905, 919–22 (6th Cir. 2019) (firearms facilitating drug trafficking); 

United States v. Simmons, 630 F. App’x 365, 370–73 (6th Cir. 2015) (same). We also note that 

the general rule in our circuit is that impermissible “double-counting” occurs when two 

enhancements punish “precisely the same aspect of the defendant’s conduct.” See Sweet, 

776 F.3d at 451 (quoting United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010)). The 

2The dissent asserts that the district court applied both enhancements to punish Fugate for “two distinct 

acts: (1) helping others sell stolen firearms and (2) selling stolen firearms himself.” Diss. Op. at 13. Not so. The 

district court made no such distinction at the sentencing hearing, and one cannot be implied by virtue of the district 

court adopting the pre-sentence report’s description of the events leading to Fugate’s conviction. And, more 

importantly, facilitating the sale of firearms and selling firearms are two parts of the same whole: firearms 

trafficking.
No. 19-6163 United States v. Fugate Page 6

district court correctly observed in this case that the § 2K2.1(b)(6)(B) enhancement punishes a 

distinct aspect of the defendant’s conduct—knowingly trafficking stolen weapons under § 922(j). 

See R. 112 (Sent’g Hr’g at 24–25) (Page ID #387–88). Ordinarily, that would mean that no 

double-counting occurred. The particular question in this case is whether the plain language of 

§ 2K2.1 goes farther than our baseline rule and bars double-counting of any two firearms 

possession or trafficking offenses.

We hold that firearms possession or trafficking offenses cannot form the basis of a 

§ 2K2.1(b)(6)(B) enhancement when the § 2K2.1(b)(5) enhancement has been applied. Our 

answer turns on the relationship between § 2K2.1(b)(6)(B) and § 2K2.1(b)(5). Section 

2K2.1(b)(5) provides for a four-level enhancement if the defendant “engaged in the trafficking of 

firearms.” Fugate received the § 2K2.1(b)(5) enhancement in addition to the § 2K2.1(b)(6)(B) 

enhancement—each based on his trafficking of firearms.3 This was error.

Application Note 13(D) to § 2K2.1(b)(5) states that an enhancement under 

§ 2K2.1(b)(6)(B) will apply in addition to § 2K2.1(b)(5) “[i]f the defendant used or transferred 

one of such firearms in connection with another felony offense (i.e., an offense other than a

firearms possession or trafficking offense).” (emphasis added). Application Note 14(C) to 

§ 2K2.1(b)(6)(B) echoes the instruction in Application Note 13(D) by defining “another felony 

offense” as “any federal, state, or local offense, other than the explosive or firearms possession 

or trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of 

whether a criminal charge was brought, or a conviction obtained.” (emphasis added). Thus, the 

3Fugate did not raise a double-counting issue based on § 2K2.1(b)(5) in his opening brief and instead raised 

it for the first time in his reply. The Government contends that this means that his double-counting argument is 

waived. We conclude, however, that Fugate’s argument was properly raised in response to the Government’s brief. 

Fugate has consistently relied on the commentary to § 2K2.1 to argue that the application of the (b)(6)(B) 

enhancement is prohibited in his case. Fugate shifted the precise basis of that argument in his reply brief in an 

attempt to distinguish his case from a case relied on by the government in its appellee brief, United States v. 

Hemsher, 893 F.3d 525 (8th Cir. 2018). In any event, we must consider the enhancement scheme as a whole to 

interpret § 2K2.1(b)(6)(B). We do not deem the double-counting argument waived.

We also note that because Fugate raised the double-counting issue at sentencing, we do not agree with the 

dissent that Fugate forfeited the issue by failing to raise it before the district court. See R. 112 (Sent’g Hr’g Tr. at 

24) (Page ID #387) (“[Defense Counsel]: Well, and Your Honor, I am looking at [a] case . . . [that] dealt 

specifically with this very issue which it states – it deals with the issue of double counting in this circumstance 

where he’s, in fact, being punished for one conduct, and then being punished for it again.”).
No. 19-6163 United States v. Fugate Page 7

Application Notes carve out firearms possession or trafficking offenses from felony offenses that 

qualify for the § 2K2.1(b)(6)(B) enhancement.

There is one notable difference, however, between the language in Application Notes 

13(D) and 14(C). Application Note 13(D) to § 2K2.1(b)(5) says “an offense other than a 

firearms possession or trafficking offense,” whereas Application Note 14(C) to § 2K2.1(b)(6)(B) 

says “any . . . offense, other than the explosive or firearms possession or trafficking offense.” 

(emphasis added). The use of “a” in Application Note 13(D) suggests that a defendant cannot 

receive a second enhancement under § 2K2.1(b)(6)(B) for any firearms possession or trafficking 

offense. The use of “the” in Application Note 14(C), on the other hand, could signal that only 

the underlying firearms possession or trafficking offense of conviction—here, Fugate’s 

conviction for being a felon in possession of a firearm in violation of § 922(g)(1)—is excluded 

from the types of felony offenses that qualify for the § 2K2.1(b)(6)(B) enhancement. The Eighth 

Circuit adopted the latter interpretation in United States v. Hemsher, 893 F.3d 525, 535 (8th Cir. 

2018). In doing so, the Eighth Circuit reasoned that the use of “the” in Application Note 14(C) 

controls because Application Note 14(C) is tasked with explaining § 2K2.1(b)(6)(B), the 

enhancement at issue. Id. at 534–35. Therefore, in the Eighth Circuit’s view, any firearms 

possession or trafficking offense other than the underlying offense of conviction can qualify for 

the § 2K2.1(b)(6)(B) enhancement.

We see it the other way around. Under the § 2K2.1 enhancement scheme, courts first 

must decide whether a defendant has engaged in firearms trafficking, which would justify a 

§ 2K2.1(b)(5) enhancement. If yes, the question becomes whether an additional enhancement 

under § 2K2.1(b)(6)(B) is appropriate. In this scenario, where the court has applied the 

§ 2K2.1(b)(5) enhancement and is considering whether to apply an additional enhancement 

under § 2K2.1(b)(6)(B), Application Note 13(D) to § 2K2.1(b)(5) directs courts to apply the 

§ 2K2.1(b)(6)(B) enhancement only if the § 2K2.1(b)(6)(B) enhancement is based on a felony 

offense other than a firearms possession or trafficking offense. Thus, Application Note 13(D) is 

designed to prevent double-counting of firearms possession or trafficking offenses. Because the 

Sentencing Guidelines require courts to work through Application Note 13(D) after applying 

§ 2K2.1(b)(5) before they even reach § 2K2.1(b)(6)(B), Application Note 13(D) controls our 
No. 19-6163 United States v. Fugate Page 8

interpretation of Application Note 14(C), once § 2K2.1(b)(5) has been applied. Taking the 

enhancement scheme as a whole, a firearms possession or trafficking offense cannot form the 

basis for a § 2K2.1(b)(6)(B) enhancement as “another felony offense” after the application of 

§ 2K2.1(b)(5).

The same is true for the second clause of § 2K2.1(b)(6)(B), which provides for an 

enhancement where the defendant “possessed or transferred any firearm or ammunition with 

knowledge, intent, or reason to believe that it would be used or possessed in connection with 

another felony offense.” Here, the second clause arguably could apply to Fugate because, as the 

district court noted, Fugate transferred firearms to gang members and drug traffickers, who likely 

were prohibited from possessing a firearm or might use the firearm to commit a felony. Putting 

aside the inference (which is questionable) that the mere fact that Fugate transferred the firearms 

to gang members and drug traffickers means that the firearms were in the possession of 

prohibited persons or were used in the commission of a felony,4the § 2K2.1(b)(6)(B) 

enhancement cannot be sustained on these grounds. This time, the answer lies in Application 

Note 13(A), which explains what counts as “engag[ing] in the trafficking of firearms” under 

§ 2K2.1(b)(5).

Application Note 13(A) to § 2K2.1(b)(5) describes “engag[ing] in the trafficking of 

firearms” as “transport[ing], transfer[ring], or otherwise dispos[ing] of two or more firearms to 

another individual, or receiv[ing] two or more firearms with the intent to transport, transfer, or 

otherwise dispose of firearms to another individual,” while knowing or having reason to believe 

that the firearms will wind up in the hands of someone “whose possession or receipt of the 

firearm would be unlawful” or “who intended to use or dispose of the firearm unlawfully.” In 

4There is no hardline rule that any sale of firearms to drug traffickers or gang members imputes to the 

defendant knowledge, intent, or reason to believe that the firearms will be used or possessed in connection with 

another felony offense. We instead look to all the surrounding circumstances to decide whether the district court’s 

conclusions were reasonable. For example, we have considered as context the nature of the firearms sold, the 

quantity of firearms sold, the time of day, the defendant’s conduct during the sale, and whether the sale of firearms 

accompanied a drug deal. See, e.g., United States v. Freeman, 640 F.3d 180, 188–89 (6th Cir. 2011); United States 

v. Turner, 698 F. App’x 803, 806–07 (6th Cir. 2017); United States v. Jenkins, 528 F. App’x 483, 486 (6th Cir. 

2013). Pertinent here, “[w]e ha[d] no problem concluding that [the defendant’s] sale of firearms to his heroin dealer 

in the wee hours of the morning in exchange for heroin and cash gave him reason to know or have reason to believe 

that his heroin dealer ‘intended to use or dispose of the firearm unlawfully.’” Freeman, 640 F.3d at 189 (quoting 

then U.S.S.G. § 2K2.1(b)(5) cmt. n.13, now § 2K2.1(b)(5) cmt. n.13(A)(ii)(II)) (emphasis added).
No. 19-6163 United States v. Fugate Page 9

simpler terms, a defendant qualifies for the § 2K2.1(b)(5) firearms trafficking enhancement if he 

transferred or received two or more firearms with the knowledge that the firearms will then go to 

someone who cannot lawfully possess the firearms or who will use the firearms unlawfully. 

What is key here is that the second clause of § 2K2.1(b)(6)(B) describes conduct that falls within 

Application Note 13(A)’s description of firearms trafficking—possessing or transferring a 

firearm to someone who cannot lawfully possess it or who will use it to commit a crime. In other 

words, the second clause of § 2K2.1(b)(6)(B) is already covered by § 2K2.1(b)(5). It does not 

add anything new. Therefore, applying the § 2K2.1(b)(6)(B) enhancement, in addition to the 

§ 2K2.1(b)(5) enhancement, based on the sale of firearms to a prohibited person or someone 

likely to commit a felony is impermissible double-counting, too.

We are not alone in our conclusion that firearms-trafficking offenses do not qualify for 

the § 2K2.1(b)(6)(B) enhancement when the § 2K2.1(b)(5) enhancement is applied. The Seventh 

Circuit similarly has held that courts cannot “appl[y] both the trafficking enhancement and the 

other felony offense enhancement based on the same conduct.” United States v. Johns, 732 F.3d 

736, 740 (7th Cir. 2013) (emphasis added). “This double counting [is] impermissible because 

Application Note 13(D) to § 2K2.1 expressly prohibits it.” Id. Like here, the defendant in Johns

pleaded guilty to being a felon in possession of a firearm under § 922(g)(1). See id. at 737. The 

district court applied both the trafficking enhancement under § 2K2.1(b)(5) and the enhancement 

for transfer in connection with another felony offense under § 2K2.1(b)(6)(B) for the same 

conduct: trafficking the firearms in a larger trafficking scheme.5 The Seventh Circuit held that 

that was error. Id. at 740. Whatever the elements of the firearms possession or trafficking 

offense might be, courts cannot, without something more, count the defendant’s firearms 

5The firearms at issue in Johns appear to have been stolen as well. 732 F.3d at 737 (citing PSR). It is not 

clear, however, whether the defendant in Johns knew or had reason to believe that the firearms were stolen. It could 

be, then, that there was no basis for a § 922(j) charge in Johns as there is here because, unlike a § 922(j) charge, 

knowledge that the firearms are stolen is not required for a § 2K2.1(b)(5) enhancement. Nevertheless, this 

distinction makes no difference. As the Seventh Circuit stated, Application Note 13(D) excises firearms possession 

or trafficking conduct from § 2K2.1(b)(6)(B) when § 2K2.1(b)(5) is applied, not a particular firearms possession or 

trafficking offense. See Johns, 732 F.3d at 740.
No. 19-6163 United States v. Fugate Page 10

possession or trafficking conduct twice via both § 2K2.1(b)(5) and § 2K2.1(b)(6)(B) at 

sentencing.6

This result also is consistent with our precedent on double-counting in the context of 

§ 2K2.1. We held in Sweet that courts may apply both the § 2K2.1(b)(5) and the 

§ 2K2.1(b)(6)(B) enhancement for the transfer of firearms to facilitate a drug deal. 776 F.3d at 

451. “[T]he § 2K2.1(b)(5) enhancement punished [the defendants] for transferring guns to an 

individual who could not lawfully possess them, see U.S.S.G. § 2K2.1 cmt. 13, while the 

§ 2K2.1(b)(6)(B) enhancement punished them for using the firearms to facilitate the distribution 

of heroin.” Id. Were there evidence in this case that Fugate had sold the firearms to drug dealers 

in exchange for drugs, we would have no problem concluding that both enhancements apply. 

See United States v. Truitt, 696 F. App’x 391, 394 (11th Cir. 2017) (per curiam) (“[T]he harms 

associated with possession of methamphetamine are separate from those associated with 

trafficking of firearms such that neither enhancement fully accounts for both harms.” (quotation 

omitted)). That is the paradigmatic case for an application of both § 2K2.1(b)(5) and 

§ 2K2.1(b)(6)(B). And the rule we announce today in no way disrupts the application of 

§ 2K2.1(b)(6)(B) where there is no overlap with § 2K2.1(b)(5), as is often the case. See supra at 

pp. 5–6.

6The Second Circuit came to effectively the same conclusion with different reasoning. See United States v. 

Young, 811 F.3d 592, 599–604 (2d Cir. 2016). It similarly held that “Application Note 13(D) avoids the 

simultaneous application of two provisions likely in many circumstances to punish the same behavior.” Id. at 603; 

see also United States v. Truitt, 696 F. App’x 391, 394 (11th Cir. 2017) (per curiam) (“[T]he Application Notes 

expressly contemplate that both enhancements will apply where the defendant used or transferred firearms in 

connection with a felony offense other than firearms possession or trafficking.”).

The Second Circuit held that an enhancement under the second clause of § 2K2.1(b)(6)(B) is never proper 

if the § 2K2.1(b)(5) trafficking enhancement applies—meaning that no prospective offense committed by the 

recipient of the firearms (drug trafficking, robbery, etc.) could warrant the application of the § 2K2.1(b)(6)(B) 

enhancement. To get there, the Second Circuit emphasized that Application Note 13(D) omits mention of transfers 

of firearms made “with knowledge, intent, or reason to believe it would later be used in connection with another 

felony offense.” See Young, 811 F.3d at 602. Thus, “by negative implication, . . . when the ‘trafficking’ 

enhancement applies, a sentence may be enhanced under the in-connection-with [another felony] clause but not 

under the reason-to-believe [the firearms will be used in the commission of another felony] clause.” Id. The 

problem with this analysis is that Application Note 13(D) permits courts to apply the § 2K2.1(b)(6)(B) enhancement 

when the firearm is “used or transferred in connection with” another felony. (emphasis added). “Transferred” only 

shows up in the second clause, not the first clause, of § 2K2.1(b)(6)(B). That suggests that Application Note 13(D) 

does in fact address the second clause of § 2K2.1(b)(6)(B), and therefore that an additional enhancement under the 

second clause of § 2K2.1(b)(6)(B) can be proper in some circumstances.
No. 19-6163 United States v. Fugate Page 11

Because § 2K2.1 prohibits double-counting of firearms trafficking offenses by applying 

both § 2K2.1(b)(5) and § 2K2.1(b)(6)(B) for engaging in the trafficking of firearms, we hold that 

the district court erred when, after applying the § 2K2.1(b)(5) enhancement to Fugate, it then 

applied the § 2K2.1(b)(6)(B) enhancement for knowingly trafficking stolen firearms in violation 

of § 922(j) and for selling the firearms to drug traffickers and gang members. We accordingly 

need not address his additional challenges to the procedural and substantive reasonableness of 

his sentence based on the district court’s consideration of the 18 U.S.C. § 3553(a) sentencing 

factors.

III. CONCLUSION

We REVERSE the district court’s sentence of Fugate to 97 months’ imprisonment and 

REMAND for resentencing.
No. 19-6163 United States v. Fugate Page 12

_________________

DISSENT

_________________

SUTTON, Circuit Judge, dissenting. Readers may wonder, as I initially did, why the 

district court never addressed Fugate’s double-counting argument. The answer is that Fugate 

never raised it. He did not raise it in his objections to the government’s pre-sentence report. He 

did not raise it during the sentencing hearing. He did not raise it at the end of the sentencing 

hearing when, consistent with our urging, the district court gave Fugate one last chance and 

asked him if he had “any objections” under United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 

2004), to the proposed sentence. R.112 at 39–40. He did not even raise the issue in his opening 

brief on appeal. Not until his reply brief on appeal did he raise the point. 

On this record, I would be reluctant to reverse a district court’s judgment based on an 

argument forfeited four times over even if I thought the court erred. But the district court did not 

err. Least of all did it do so plainly. United States v. Vonner, 516 F.3d 382, 385–86 (6th Cir. 

2008) (en banc).

In steering a district court’s discretion about how to punish a defendant, the sentencing 

guidelines increase a defendant’s sentencing range if he engaged in other harmful behavior to 

society while committing a crime, say by using stolen weapons to facilitate other felonies. Such 

enhancements sometimes cover related conduct, creating the potential for double-counting. If 

“precisely the same aspect of the defendant’s conduct factors into his sentence in two separate 

ways,” the district court has committed an error. United States v. Sweet, 776 F.3d 447, 451 (6th 

Cir. 2015) (quotation omitted). But no double counting occurs if the “enhancements penalize 

distinct aspects of [the] defendant’s conduct.” Id. (quotation and alterations omitted).

That’s all that happened. Take each guideline and each enhancement. The firearms 

trafficking guideline, U.S.S.G. § 2K2.1(b)(5), penalized Fugate’s decision to sell stolen firearms 

to “drug traffickers” and “gangbangers,” as Fugate admitted in his words he did. R.112 at 11. 

He “disposed of two or more firearms to another individual” and “knew or had reason to believe 

that such conduct would result in the . . . disposal of a firearm to an individual . . . who intended 
No. 19-6163 United States v. Fugate Page 13

to use or dispose of the firearm unlawfully.” U.S.S.G. § 2K2.1 cmt. n.13(A). That accounts for 

one enhancement.

The firearms possession guideline, U.S.S.G. § 2K2.1(b)(6)(B), punished Fugate for a 

different act: buying stolen firearms. The guideline applies if a person possesses a firearm “in 

connection with another felony offense.” Id. For the guideline to apply, the possession must 

have “had the potential of facilitating another felony offense.” Id. cmt. n.14(A). Fugate’s 

conduct readily clears this bar. When he purchased (and possessed) the firearms from his 

compatriots, he facilitated their commission of felony firearms trafficking offenses. See 18 

U.S.C. § 922(d), (i), (j); see also United States v. Juarez, 626 F.3d 246, 254 (5th Cir. 2010); 

United States v. Jackson, 741 F.3d 861, 863 (7th Cir. 2014); United States v. Hemsher, 893 F.3d 

525, 535 (8th Cir. 2018). 

Far from punishing “precisely the same aspect of the defendant’s conduct,” the guidelines 

punished precisely two distinct acts: (1) helping others sell stolen firearms and (2) selling stolen 

firearms himself. All of this was apparent from the pre-sentence report, which described in 

detail how Fugate’s compatriots sold him stolen weapons and which the district court adopted in 

its entirety. On top of that, an officer testified at the sentencing hearing that Fugate confessed to 

selling weapons to people he knew to be “drug traffickers” and “gangbangers.” R.112 at 11.

No doubt, the district court could have said more. But Fugate never asked it to say 

more—or for that matter to say anything on this score. No doubt, a district court could use these 

two guidelines to create a double-counting violation by imposing the two enhancements for the 

same sale to the same third party for the same reason. But that did not happen.

Nor can Fugate plausibly argue that his comment about “double counting” at sentencing 

preserved the point. Id. at 24. That statement concerned an utterly distinct double-counting 

argument, one not relied on by the Court here. 

Which brings me to one last undoubted point. On remand, the district court can fix this 

alleged problem by clarifying that each enhancement covers different transactions, concerns 

different third parties, and has different objectives. See, e.g., United States v. Johns, 732 F.3d 

736, 740 (7th Cir. 2013). No court has held that courts can never use both guidelines to enhance 
No. 19-6163 United States v. Fugate Page 14

a defendant’s sentence. And some have confirmed the self-evident point that they may. See 

Sweet, 776 F.3d at 451; United States v. Rodriguez, 884 F.3d 679, 681 (7th Cir. 2018).

Respectfully, I dissent.