U.S.S.G. §2K2.4

(a) If the defendant, whether or not convicted of another crime, was convicted

of violating section 844(h) of title 18, United States Code, the guideline

sentence is the term of imprisonment required by statute. Chapters Three

(Adjustments), Parts A through E, and Four (Criminal History and Criminal Livelihood) shall not apply to that count of conviction.

(b) Except as provided in subsection (c), if the defendant, whether or not convicted of another crime, was convicted of violating section 924(c) or section 929(a) of title 18, United States Code, the guideline sentence is the

minimum term of imprisonment required by statute. Chapters Three,

Parts A through E, and Four shall not apply to that count of conviction.

(c) If the defendant (1) was convicted of violating section 924(c) or section 929(a) of title 18, United States Code; and (2) as a result of that conviction (alone or in addition to another offense of conviction), is determined

to be a career offender under §4B1.1 (Career Offender), the guideline sentence shall be determined under §4B1.1(c). Except for §§3E1.1 (Acceptance

of Responsibility), 4B1.1, and 4B1.2 (Definitions of Terms Used in Section 4B1.1), Chapters Three, Parts A through E, and Four shall not apply

to that count of conviction.

(d) Special Instructions for Fines

(1) Where there is a federal conviction for the underlying offense, the fine

guideline shall be the fine guideline that would have been applicable

had there only been a conviction for the underlying offense. This

guideline shall be used as a consolidated fine guideline for both the

underlying offense and the conviction underlying this section.

Commentary

Statutory Provisions: 18 U.S.C. §§ 844(h), (o), 924(c), 929(a).

Application Notes:

1. Application of Subsection (a).—Section 844(h) of title 18, United States Code, provides a mandatory term of imprisonment of 10 years (or 20 years for the second or subsequent offense). Accordingly, the guideline sentence for a defendant convicted under 18 U.S.C. § 844(h) is the term

required by that statute. Section 844(h) of title 18, United States Code, also requires a term of

imprisonment imposed under this section to run consecutively to any other term of imprisonment.

2. Application of Subsection (b).—Sections 924(c) and 929(a) of title 18, United States Code, provide mandatory minimum terms of imprisonment (e.g., not less than five years). Except as provided

in subsection (c), in a case in which the defendant is convicted under 18 U.S.C. § 924(c) or § 929(a),

the guideline sentence is the minimum term required by the relevant statute. Each of 18 U.S.C.

§§ 924(c) and 929(a) also requires that a term of imprisonment imposed under that section shall run

consecutively to any other term of imprisonment.

3. Application of Subsection (c).—In a case in which the defendant (A) was convicted of violating

18 U.S.C. § 924(c) or 18 U.S.C. § 929(a); and (B) as a result of that conviction (alone or in addition

to another offense of conviction), is determined to be a career offender under §4B1.1 (Career

Offender), the guideline sentence shall be determined under §4B1.1(c). In a case involving multiple counts, the sentence shall be imposed according to the rules in subsection (e) of §5G1.2

(Sentencing on Multiple Counts of Conviction)

4. Non-Applicability of Certain Enhancements.—

(A) In General.—If a sentence under this guideline is imposed in conjunction with a sentence

for an underlying offense, do not apply any specific offense characteristic for possession,

brandishing, use, or discharge of an explosive or firearm when determining the sentence

for the underlying offense. A sentence under this guideline accounts for any explosive or

weapon enhancement for the underlying offense of conviction, including any such enhancement that would apply based on conduct for which the defendant is accountable under

§1B1.3 (Relevant Conduct). Do not apply any weapon enhancement in the guideline for the

underlying offense, for example, if (A) a co-defendant, as part of the jointly undertaken

criminal activity, possessed a firearm different from the one for which the defendant was

convicted under 18 U.S.C. § 924(c); or (B) in an ongoing drug trafficking offense, the defendant possessed a firearm other than the one for which the defendant was convicted under

18 U.S.C. § 924(c). However, if a defendant is convicted of two armed bank robberies, but is

convicted under 18 U.S.C. § 924(c) in connection with only one of the robberies, a weapon

enhancement would apply to the bank robbery which was not the basis for the 18 U.S.C.

§ 924(c) conviction.

A sentence under this guideline also accounts for conduct that would subject the defendant

to an enhancement under §2D1.1(b)(2) (pertaining to use of violence, credible threat to use

violence, or directing the use of violence). Do not apply that enhancement when determining

the sentence for the underlying offense.

If the explosive or weapon that was possessed, brandished, used, or discharged in the course

of the underlying offense also results in a conviction that would subject the defendant to an

enhancement under §2K1.3(b)(3) (pertaining to possession of explosive material in connection with another felony offense) or §2K2.1(b)(7)(B) (pertaining to possession of any firearm

or ammunition in connection with another felony offense), do not apply that enhancement.

A sentence under this guideline accounts for the conduct covered by these enhancements

because of the relatedness of that conduct to the conduct that forms the basis for the conviction under 18 U.S.C. § 844(h), § 924(c) or § 929(a). For example, if in addition to a conviction for an underlying offense of armed bank robbery, the defendant was convicted of

being a felon in possession under 18 U.S.C. § 922(g), the enhancement under

§2K2.1(b)(7)(B) would not apply.

(B) Impact on Grouping.—If two or more counts would otherwise group under subsection (c)

of §3D1.2 (Groups of Closely Related Counts), the counts are to be grouped together under

§3D1.2(c) despite the non-applicability of certain enhancements under Application

Note 4(A). Thus, for example, in a case in which the defendant is convicted of a felon-in-possession count under 18 U.S.C. § 922(g) and a drug trafficking count underlying a conviction under 18 U.S.C. § 924(c), the counts shall be grouped pursuant to §3D1.2(c). The

applicable Chapter Two guidelines for the felon-in-possession count and the drug trafficking count each include “conduct that is treated as a specific offense characteristic” in the

other count, but the otherwise applicable enhancements did not apply due to the rules in

§2K2.4 related to 18 U.S.C. § 924(c) convictions.

5. Chapters Three and Four.—Except for those cases covered by subsection (c), do not apply

Chapter Three (Adjustment), Parts A through E, and Chapter Four (Criminal History and Criminal Livelihood) to any offense sentenced under this guideline. Such offenses are excluded from

application of those chapters because the guideline sentence for each offense is determined only

by the relevant statute. See §§3D1.1 (Procedure for Determining Offense Level on Multiple

Counts) and 5G1.2. In determining the guideline sentence for those cases covered by subsection (c): (A) the adjustment in §3E1.1 (Acceptance of Responsibility) may apply, as provided in

§4B1.1(c); and (B) no other adjustments in Chapter Three, Parts A through D, and no provisions

of Chapter Four, other than §§4B1.1 and 4B1.2, shall apply.

6. Terms of Supervised Release.—Imposition of a term of supervised release is governed by the

provisions of §5D1.1 (Imposition of a Term of Supervised Release).

7. Fines.—Subsection (d) sets forth special provisions concerning the imposition of fines. Where

there is also a conviction for the underlying offense, a consolidated fine guideline is determined

by the offense level that would have applied to the underlying offense absent a conviction under

18 U.S.C. § 844(h), § 924(c), or § 929(a). This is required because the offense level for the underlying offense may be reduced when there is also a conviction under 18 U.S.C. § 844(h), § 924(c),

or § 929(a) in that any specific offense characteristic for possession, brandishing, use, or discharge of a firearm is not applied (see Application Note 4). The Commission has not established

a fine guideline range for the unusual case in which there is no conviction for the underlying

offense, although a fine is authorized under 18 U.S.C. § 3571.

Background: Section 844(h) of title 18, United States Code, provides a mandatory term of imprisonment. Sections 924(c) and 929(a) of title 18, United States Code, provide mandatory minimum terms

of imprisonment. A sentence imposed pursuant to any of these statutes must be imposed to run consecutively to any other term of imprisonment. To avoid double counting, when a sentence under this

section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for explosive or firearm discharge, use, brandishing, or possession is not applied in respect

to such underlying offense.