RECOMMENDED FOR PUBLICATION

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

File Name: 23a0013p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES ANDREW HITCH,

Defendant-Appellant.

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No. 22-5088

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington.

No. 5:21-cr-00088-2—Danny C. Reeves, Chief District Judge.

Decided and Filed: January 24, 2023

Before: GILMAN, McKEAGUE, and GRIFFIN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: John F. Clark, CLARK LAW FIRM PLLC, Detroit, Michigan, for Appellant. 

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

Lexington, Kentucky, for Appellee.

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OPINION

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McKEAGUE, Circuit Judge. Following a guilty plea, James Hitch was sentenced to 

fifty-one months of imprisonment and three years of supervised release. He now appeals his 

sentence, alleging that the district court erred by applying a stolen-firearm enhancement under 

U.S.S.G. § 2K2.1(b)(4)(A) and an enhancement for possessing a firearm in connection with 

another felony offense under § 2K2.1(b)(6)(B). Because application of both enhancements does 

not constitute impermissible double counting, we affirm. 

>
No. 22-5088 United States v. Hitch Page 2

I.

Hitch and his co-defendant stole six firearms from Whitetail Heaven Outfitters Elite 

Outdoors Superstore, a federally licensed firearms dealer. Hitch was indicted and ultimately 

pleaded guilty to theft of multiple firearms from a federally licensed firearms dealer in violation 

of 18 U.S.C. § 922(u), and illegally possessing firearms after having previously been convicted 

of a felony, in violation of 18 U.S.C. § 922(g)(1). 

The parties entered a plea agreement, in which they jointly recommended the application 

of two enhancements: first, an enhancement under § 2K2.1(b)(1)(A) for the number of firearms 

involved; and second, an enhancement pursuant to § 2K2.1(b)(6)(B) because Hitch possessed a 

firearm in connection with another felony offense. The parties made no agreement about the 

application of § 2K2.1(b)(4)(A)’s stolen-firearm enhancement and preserved their rights to 

present arguments in favor or against its application. 

The probation department prepared a Presentence Report (PSR). Pursuant to U.S.S.G. 

§ 3D1.2(d), the PSR recommended grouping both counts together. Because the possession count 

had the higher offense level, it set the base offense level at fourteen pursuant to 

§ 2K2.1(a)(6)(A). 

The PSR also recommended applying both the § 2K2.1(b)(1)(A) and § 2K2.1(b)(6)(B) 

enhancements that the parties agreed to in their plea agreement. Further, the PSR recommended 

application of the stolen-firearm enhancement, § 2K2.1(b)(4)(A). 

Hitch objected to application of the stolen-firearm enhancement, arguing that its 

application resulted in double counting. The district court overruled his objection. 

The district court adopted the PSR’s findings and calculations. Hitch’s Guidelines range 

was forty-six to fifty-seven months of imprisonment, and he requested a sentence at or near the 

bottom of the range. The district court sentenced Hitch to fifty-one months of imprisonment and 

three years of supervised release. He timely appealed. 
No. 22-5088 United States v. Hitch Page 3

II.

We review de novo appeals regarding legal interpretations of the Sentencing Guidelines,

including whether impermissible double counting occurred. United States v. Clark, 11 F.4th 

491, 493–94 (6th Cir. 2021) (citations omitted). If precisely the same aspect of a defendant’s 

conduct results in an increase to a sentence in two ways, then impermissible double counting 

occurs. United States v. Nunley, 29 F.4th 824, 830 (6th Cir. 2022). However, if the defendant is 

“punished for distinct aspects of his conduct,” no double counting occurs. United States v. 

Battaglia, 624 F.3d 348, 351 (6th Cir. 2010). “In other words, district courts may impose two 

enhancements arising from the same conduct, provided the enhancements penalize distinct 

harms.” Nunley, 29 F.4th at 830 (internal quotation marks and ellipsis omitted). 

Hitch argues that the district court’s application of the § 2K2.1(b)(4)(A) stolen-firearm 

enhancement was based on the same conduct as the § 2K2.1(b)(6)(B) other-felony enhancement 

and thus constitutes double counting. We addressed a very similar situation in United States v. 

Campbell, which also involved a defendant being a felon in possession of a firearm following his 

theft of guns from a federally licensed firearms dealer. No. 21-1493, 2022 WL 1224551 (6th 

Cir. Apr. 26, 2022). There, the defendant argued that double counting occurred because his 

sentence was enhanced for possessing stolen firearms under § 2K2.1(b)(4)(A), and for 

possessing firearms in connection with another felony offense (that felony offense being theft of 

firearms from a federal firearms dealer) under § 2K2.1(b)(6)(B), contending that the 

application of both enhancements “punished him twice ‘for indistinguishable conduct.’” Id. at 

*1. But we rejected that argument, explaining that the enhancements punish different 

conduct: “the § 2K2.1(b)(4) enhancement punished [the defendant] for the fact that he possessed 

stolen guns; the § 2K2.1(b)(6)(B) enhancement punished [the defendant] for the facts that [the 

defendant] himself had stolen the guns, and had done so from a licensed federal firearms dealer.” 

Id. Because courts can impose two sentencing enhancements for the same conduct if the 

enhancements punish “distinct aspects” of the conduct, there was no error. 

The same two enhancements at issue in Campbell are at issue here. And although 

Campbell is unpublished, and thus not binding, it is persuasive, and its reasoning yields the same 

outcome in this case. See Harper v. AutoAlliance Int’l, Inc., 392 F.3d 195, 205 n.3 (6th Cir. 
No. 22-5088 United States v. Hitch Page 4

2004). And it is consistent with how our sister circuits have approached the issue. See, e.g.,

United States v. Toomer, 837 F. App’x 416, 416 (8th Cir. 2021) (per curiam); United States v. 

Brake, 904 F.3d 97, 101–02 (1st Cir. 2018); United States v. McClure, 396 F. App’x 619, 621 

(11th Cir. 2010). We find no double-counting in this case. 

Hitch pushes back and attempts to distinguish Campbell and many of our sister circuits’ 

cases because he pleaded guilty not just to possession under § 922(g)(1), but also to theft under 

§ 922(u). We view this as essentially a second double-counting argument, which fails because it 

relies on the false premise that the § 922(u) count increased the base offense level in the first 

instance and through the § 922(u) conduct-related enhancements.

When a defendant is convicted of more than one count, the Sentencing Guidelines 

provide a clear path forward for grouping those counts to determine an offense level. See 

U.S.S.G. § 3D1.1(a). There are instances in which multiple counts do increase a defendant’s 

offense level, and those instances could arguably result in double counting if enhancements were 

applied based on the same behavior. See U.S.S.G. § 3D1.4; but see United States v. Craig, 

420 F. App’x 605, 607 (7th Cir. 2011) (order) (finding no double-counting issue when a 

multiple-count adjustment and an enhancement covered similar offense behavior because that 

was the Commission’s intent). 

In Hitch’s case, his two counts were grouped together, and the offense level was 

calculated based on his felon-in-possession count, because that count produced a higher offense 

level. U.S.S.G. § 3D1.3(b). His base offense level was not increased because of the 18 U.S.C. 

§ 922(u) violation. Id. at § 3D1.4; see also PSR 6–7, R. 66, PID # 228–29. That is, there was no 

multiple-count adjustment. See U.S.S.G. § 3D1.4; PSR, R. 66, PID # 228. Accordingly, the 

§ 922(u) offense conduct is reflected in the Guidelines calculation only through the 

enhancements. Cf. United States v. Moon, 513 F.3d 527, 542 (6th Cir. 2008) (reaching the same 

conclusion when the counts were grouped and only one of the grouped counts provided the 

offense level for the group). 

United States v. Fugate, 964 F.3d 580 (6th Cir. 2020), does not direct a different outcome 

as Hitch contends. Fugate dealt with enhancements “for engaging in the trafficking of firearms 
No. 22-5088 United States v. Hitch Page 5

under § 2K2.1(b)(5), and . . . for knowingly trafficking stolen firearms under § 2K2.1(b)(6)(B).” 

Id. at 584. We acknowledged that, normally, these two enhancements would not result in double 

counting because they punish distinct aspects of a defendant’s conduct, yet found double 

counting because an Application Note directed that the two enhancements could not both apply 

in that specific instance. Id. at 885–87. There is no such Application Note that bars application 

of the two enhancements at issue in this case. 

III.

For the foregoing reasons, we AFFIRM the judgment of the district court.