United States vs. Daniel Katalinic, No. 07-1588.

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 co-defendant made a death threat (U.S.S.G. § 2B3.1(b)(2)(F)) during the robbery.

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 received a mandatory consecutive sentence under § 924(c). We agree with our sister circuits and hold that Application Note 4 prohibits the adjustment.

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.

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). 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.

This case turns on an amendment in 2000 to Application Note 4 of § 2K2.4. 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., § 2B3.1(b)(2)(A)-(F) (Robbery)) is not to be applied in respect to the guideline for the underlying offense.

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).

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. 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."

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.

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).

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

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