U.S. v. Aimufua

16 Citing cases

  1. U.S. v. Stevenson

    68 F.3d 1292 (11th Cir. 1995)   Cited 39 times
    Holding that we "consider[] sentence objections raised for the first time on appeal under the plain error doctrine to avoid manifest injustice"

    Whether the cumulative enhancement of a sentence under two separate guideline provisions constitutes impermissible double counting presents a question of law reviewed de novo. United States v. Aimufua, 935 F.2d 1199, 1200 (11th Cir. 1991). This Court "consider[s] sentence objections raised for the first time on appeal under the plain error doctrine to avoid manifest injustice."

  2. U.S. v. Rodriguez-Matos

    188 F.3d 1300 (11th Cir. 1999)   Cited 64 times
    Holding that a defendant who "possessed pistol to prevent theft [of counterfeit money] during a close, face-to-face, hand-to-hand encounter with a person he apparently did not know well" possessed a firearm "in connection with" the offense

    This court reviews de novo a double counting claim. United States v. Aimufua, 935 F.2d 1199, 1200 (11th Cir. 1991). "Double counting during sentencing is permissible if the Sentencing Commission intended the result, and if the result is permissible because each section concerns conceptually separate notions related to sentencing."

  3. U.S. v. Hipenbecker

    115 F.3d 581 (8th Cir. 1997)   Cited 34 times
    Noting that there is no impermissible double counting "if the Commission intended the result and each statutory section concerns conceptually separate notions relating to sentencing"

    Whether it is permissible for a district court, based on a defendant's single criminal act, both to impose a Section(s) 5K2.0 upward departure and to deny the defendant's request for a Section(s) 3E1.1 downward adjustment is an issue of first impression in this Circuit. The Eleventh Circuit, however, has addressed this issue in United States v. Aimufua, 935 F.2d 1199 (11th Cir. 1991), and we find the Aimufua court's reasoning persuasive. Turning to the first prong of the double counting test, whether the Commission intended the result, we must consider whether the Commission intended that a district court could both impose a Section(s) 5K2.0 upward sentencing departure and impose another provision of the sentencing guidelines based on the same conduct.

  4. U.S. v. Chotas

    968 F.2d 1193 (11th Cir. 1992)   Cited 40 times
    Holding that disparate sentencing among codefendants was adequately considered by the Sentencing Commission and is therefore not an appropriate ground for departure

    We conclude that the district court improperly bypassed the prerequisite for a departure under section 5K1.1 for substantial assistance to the government by using the same mitigating circumstance to depart under section 5K2.0. Chotas cites United States v. Aimufua, 935 F.2d 1199 (11th Cir. 1991), for the proposition that the same underlying circumstance may trigger two separate provisions of the guidelines. The defendant in Aimufua had committed bank fraud while on bail for an offense to which he had pled guilty. The sentencing court properly declined to award a two-level reduction for acceptance of responsibility because this subsequent offense demonstrated that the defendant had not terminated his criminal conduct.

  5. United States v. Mozie

    No. 22-10813 (11th Cir. Nov. 6, 2023)

    I. Ordinarily, we review claims of double counting de novo. United States v. Aimufua, 935 F.2d 1199, 1200 (11th Cir. 1991). However, plain-error review applies when an appellant does not bring an argument to the district court's attention.

  6. U.S. v. Perez

    366 F.3d 1178 (11th Cir. 2004)   Cited 30 times
    Explaining that we presume the inclusion or exclusion of terms is purposeful and intentional

    However, double counting is permitted if the Sentencing Commission intended the result, and the applicable sentence enhancements concern conceptually separate notions related to sentencing. United States v. Aimufua, 935 F.2d 1199, 1201 (11th Cir. 1991); see also United States v. Box, 50 F.3d 345, 359 (5th Cir. 1995) ("Double counting is prohibited only if the particular guidelines at issue forbid it."); United States v. Wong, 3 F.3d 667, 670 (3d Cir. 1993) ("[T]he Sentencing Guidelines are explicit when double counting is forbidden. . . ."); United States v. Curtis, 934 F.2d 553, 556 (4th Cir. 1991) (same); United States v. Campbell, 967 F.2d 20, 25 (2d Cir. 1992) (double counting is permissible "where a single act is relevant to two dimensions of the Guideline analysis"). In response, the government asserts that the base offense level for ยง 2Q1.3 contemplates violations that do not involve the failure to obtain a permit.

  7. U.S. v. Naves

    252 F.3d 1166 (11th Cir. 2001)   Cited 22 times
    Concluding that the carjacking enhancement to the base offense level for robbery does not constitute impermissible double counting

    Double counting is permitted "if the Sentencing Commission intended the result, and if the result is permissible because `each section concerns conceptually separate notions related to sentencing.'" United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992) (quoting United States v. Aimufua, 935 F.2d 1199, 1201 (11th Cir. 1991)). Absent a specific direction to the contrary, we presume that the Sentencing Commission intended to apply separate guideline sections cumulatively.

  8. U.S. v. Lewis

    115 F.3d 1531 (11th Cir. 1997)   Cited 77 times
    Holding that a defendant's admission that he kidnapped a victim for "companionship" constituted a benefit and satisfied the "or otherwise" language

    The defendant's final challenge to the application of the sexual abuse guideline, wherein he claims that application of ยง 2A3.1's enhancement for abduction constituted impermissible double counting, is meritless. Double counting under separate guidelines is permitted if the Sentencing Commission intended that result and if each section concerns conceptually separate notions relating to sentencing. United States v. Aimufua, 935 F.2d 1199, 1200-01 (11th Cir. 1991). The kidnapping provision specifically requires that either the cross-referenced guideline include an adjustment for kidnapping or, if not, the court should add four levels to the base offense level in the cross-referenced provision.

  9. United States v. Wimbush

    103 F.3d 968 (11th Cir. 1997)   Cited 18 times
    Finding that a judgment that incorrectly cited a non-existent statutory subsection was merely a clerical error

    But double counting a factor under different guidelines is permitted if the Commission intended that result and if "each section concerns conceptually separate notions relating to sentencing." United States v. Aimufua, 935 F.2d 1199, 1201 (11th Cir. 1991). We have previously held that a defendant's prior felony conviction can be considered to determine both his base level offense under 2K2.1(a) and his criminal history category under Section(s) 4A1.1. United States v. Wyckoff, 918 F.2d 925, 927 (11th Cir. 1990).

  10. U.S. v. Saffeels

    39 F.3d 833 (8th Cir. 1994)   Cited 23 times
    Holding that a district court may depart upward based upon based criminal conduct, when such conduct is not included in the computation of criminal history category

    Id. at 927. See also United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992) (double-counting permissible if Commission intended the result and each statutory section concerns conceptually separate notions relating to sentencing); and United States v. Aimufua, 935 F.2d 1199, 1201 (11th Cir. 1991) (to same effect). We find the Eleventh Circuit's analysis to be helpful here. Although, in our view, the present case differs somewhat from Wyckoff in that triple-counting, rather than double-counting, is involved, we find the difference to be immaterial.