1/19/17 - Case about double counting under the Guidelines

Today, in United States v. Joey, --- F.3d ---, Case No. 15-10096 (9th Cir. 2017), the Ninth Circuit rejected the defendant's double counting argument in the context of his convictions for abusive sexual contact under 18 U.S.C. § 2244(a)(5) and committing a felony offense involving a minor while required to register as a sex offender under 18 U.S.C. § 2260A.

The defendant's claim was that, because the Guidelines prohibit applying specific offense enhancements "based on the same conduct as the conduct comprising the conviction under . . .  § 2260A," the district court erred in applying such enhancements to his convictions under 2244(a)(5).

The Ninth Circuit held:  "Because the Guidelines do not contain any instruction that precludes a district court from applying § 4B1.5 in calculating the Guidelines sentencing range for a § 2244(a)(5) conviction where a defendant has also been convicted under § 2260A, but rather instruct district courts to determine the Guidelines sentencing range for the § 2244(a)(5) count independently of § 2260A, the district court did not procedurally err in calculating the applicable Guidelines sentencing range."

There is significant discussion of the law about double counting under the Guidelines.  If you have a double counting issue, this case is a must read.