Plain Error to Treat the Same Conduct as Both “Relevant Conduct” for § 2K2.1(b)(6)(B) and a “Prior Sentence” Under § 4A1.2: United States v. Zamora‑Estrada

Introduction

In United States v. Zamora‑Estrada, the Eleventh Circuit vacated a 24-month sentence on the ground that the district court committed plain error by “double counting” the same conduct in two incompatible ways under the Sentencing Guidelines. Specifically, the court held it was error to apply the four-level enhancement in U.S.S.G. § 2K2.1(b)(6)(B)—which presupposes the conduct is relevant to the instant firearm offense—while also assigning a criminal history point under §§ 4A1.1(c) and 4A1.2 for a state sentence arising from the very same conduct. Because § 4A1.2 defines a “prior sentence” to exclude conduct that is “part of the instant offense” (i.e., “relevant conduct” under § 1B1.3), the combined application impermissibly punished the same conduct twice. The panel found the error plain, prejudicial, and one that undermined the fairness and integrity of the proceedings, warranting vacatur.

The decision underscores a critical Guidelines principle: conduct cannot simultaneously serve as relevant conduct to increase offense level and as non-relevant “prior” conduct to increase criminal history. It also illustrates how unobjected factual assertions in a Presentence Investigation Report (PSI) can be dispositive on appeal and how Molina-Martinez and Rosales-Mireles guide prejudice and fourth-prong analysis for plain Guidelines errors.

Summary of the Opinion

Marco Zamora‑Estrada pleaded guilty to illegal reentry (8 U.S.C. § 1326(a)) and unlawful possession of a firearm by an undocumented person (18 U.S.C. § 922(g)(5)(A)). The PSI stated that on August 29, 2021, while intoxicated, he displayed a firearm in public and solicited cocaine and sexual favors; that same episode yielded state convictions for carrying a concealed firearm and improper exhibition. The PSI:

• Applied § 2K2.1(b)(6)(B) (+4 levels) on Count Two, asserting he possessed the firearm “in connection with another felony offense,” namely solicitation to possess cocaine;
• Counted the August 29 state convictions for one criminal history point under § 4A1.1(c) and § 4A1.2, even while noting the circumstances were “the same as the instant offense[s]”; and
• Calculated a total offense level of 16 and a criminal history category (CHC) of II (two points), producing a range of 24–30 months; the district court imposed 24 months.

On appeal, Zamora‑Estrada argued (for the first time) that the district court impermissibly double counted by treating the August 29 conduct as both relevant conduct (supporting § 2K2.1(b)(6)(B)) and a “prior sentence” (supporting a criminal history point). Applying plain error review, the Eleventh Circuit agreed:

• It was error to simultaneously apply § 2K2.1(b)(6)(B) (which necessarily relies on relevant conduct principles per comment n.14(E)) and to assign a criminal history point for the same conduct, which § 4A1.2 excludes if it is “part of the instant offense.”
• The error was plain under the Guidelines’ text and Eleventh Circuit precedent (Hunerlach; Johnson).
• The error affected substantial rights and the fairness, integrity, or public reputation of the proceedings because the incorrect Guidelines range likely influenced the low-end sentence imposed (Molina‑Martinez; Rosales‑Mireles).

The court vacated the sentence and remanded for resentencing.

Analysis

Precedents and Authorities Cited—and Their Influence

• U.S.S.G. § 2K2.1(b)(6)(B) & comment. n.14(A), n.14(E): The enhancement applies when the defendant uses or possesses a firearm “in connection with another felony offense,” and courts assess the relationship “consistent with relevant conduct principles.” The panel relied on n.14(E) to emphasize that application of the enhancement is anchored in relevant conduct analysis.
• U.S.S.G. §§ 4A1.1, 4A1.2 & comment. n.1: Define how prior sentences score in criminal history; a “prior sentence” excludes conduct that is “part of the instant offense,” i.e., relevant conduct under § 1B1.3. This textual carve-out is the fulcrum for finding the double counting impermissible.
• U.S.S.G. § 1B1.3 (Relevant Conduct): Defines what counts as “part of the instant offense,” including acts occurring “during the commission of the offense of conviction.” The PSI described the August 29 conduct as “the same as the instant offense[s],” and the district court adopted that finding.
• United States v. Hunerlach, 258 F.3d 1282 (11th Cir. 2001): Where conduct is treated as relevant conduct for offense-level purposes, it cannot simultaneously be counted as a “prior sentence” for criminal history. The panel quoted and applied this core rule.
• United States v. Johnson, 87 F.3d 1257 (11th Cir. 1996): Notes that amendments to § 4A1.2 were designed to prevent the very double counting at issue here. Reinforces the Commission’s intent against dual treatment.
• United States v. Suarez, 893 F.3d 1330 (11th Cir. 2018); United States v. Dudley, 463 F.3d 1221 (11th Cir. 2006): Define impermissible versus permissible double counting. Even though different guideline provisions can be triggered by the same conduct, § 4A1.2’s “prior sentence” definition explicitly forbids treating relevant conduct as prior criminal history—making this instance impermissible.
• United States v. Williams, 431 F.3d 767 (11th Cir. 2005): Cited to confirm how relevant conduct can drive enhancements in firearm cases, underscoring that the August 29 episode was embraced as relevant conduct for § 2K2.1 purposes.
• United States v. Jayyousi, 657 F.3d 1085 (11th Cir. 2011); United States v. Grushko, 50 F.4th 1 (11th Cir. 2022): Standards of review; the double counting claim—raised for the first time on appeal—was reviewed for plain error.
• United States v. Utsick, 45 F.4th 1325 (11th Cir. 2022); United States v. Bankston, 945 F.3d 1316 (11th Cir. 2019); United States v. Bennett, 472 F.3d 825 (11th Cir. 2006): Plain error framework and “plainness” in miscalculation of Guidelines ranges.
• Molina‑Martinez v. United States, 578 U.S. 189 (2016); Rosales‑Mireles v. United States, 585 U.S. 129 (2018): A miscalculated Guidelines range typically suffices to show prejudice, and in the ordinary case warrants plain-error relief under the fourth prong given the risk of unnecessary incarceration.
• United States v. Shelton, 400 F.3d 1325 (11th Cir. 2005): Unobjected-to PSI facts are deemed admitted; the government did not object to the PSI’s key characterization that the August 29 state conduct was the same as the instant offense.
• United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc); United States v. Jews, 74 F.4th 1325 (11th Cir. 2023): Post-Kisor guidance on deference to Guidelines commentary. The panel noted that while courts may not defer to commentary when the Guideline text is clear, reliance on commentary here was uncontroversial because both parties invoked it and no one disputed its interpretation.
• United States v. Coast, 602 F.3d 1222 (11th Cir. 2010); United States v. Maddox, 803 F.3d 1215 (11th Cir. 2015); United States v. Maurya, 25 F.4th 829 (11th Cir. 2022): Additional authority on criminal history computation, relevant conduct, and the fourth-prong analysis for plain Guidelines error.

Legal Reasoning

The court’s reasoning proceeds in three principal steps.

1) Identifying the error: the mutually exclusive treatments of the August 29 conduct

• Section 2K2.1(b)(6)(B) requires a finding that the firearm was used or possessed “in connection with another felony offense,” assessed through relevant conduct principles (comment n.14(E)).
• Section 4A1.2 defines a “prior sentence” as one “for conduct not part of the instant offense,” and cross-references § 1B1.3’s definition of “relevant conduct.” If the conduct is relevant conduct, it is by definition excluded from “prior sentence” scoring.
• The PSI stated—and the district court adopted—that the August 29 state convictions arose from the “same” circumstances as the instant offenses. The PSI also used the August 29 episode to justify the § 2K2.1(b)(6)(B) enhancement, i.e., as relevant conduct.
• Therefore, the August 29 conduct cannot be both relevant conduct (supporting offense-level enhancement) and non-relevant, prior conduct (supporting criminal history points). This is the precise double counting the Guidelines and Eleventh Circuit precedent forbid (Hunerlach; Johnson).

2) Plainness of the error

• The error “flies in the face” of the “explicit language” of § 4A1.2 and comment n.1 and settled circuit law (Bankston; Bennett; Hunerlach; Johnson). The panel thus deemed the error plain.
• Although the panel acknowledged post-Dupree caution with commentary, no party contested the content or applicability of the relevant commentary. Moreover, the operative bar on double counting is rooted in the Guideline texts themselves—§ 4A1.2’s definition and § 1B1.3’s cross-reference—so the outcome does not depend on commentary deference.

3) Prejudice and the fairness/integrity of proceedings

• With the August 29 state convictions removed from criminal history, Zamora‑Estrada’s criminal history points fall from two to one, dropping his CHC from II to I. At total offense level 16, CHC I yields a range of 21–27 months (rather than 24–30 months).
• Because the district court expressly chose a low-end sentence, there is a reasonable probability that a lower range would have produced a lower sentence (Molina‑Martinez). The Guidelines error thus affected substantial rights.
• Under Rosales‑Mireles and Maurya, such a miscalculation ordinarily satisfies the fourth prong given the risk of unnecessary incarceration and the ease of correction. The panel accordingly vacated and remanded.

Important clarification

• The court did not hold that applying § 2K2.1(b)(6)(B) was itself erroneous. Rather, the court held it was error to apply § 2K2.1(b)(6)(B) and, at the same time, score a criminal history point for a “prior sentence” arising from the same relevant conduct. The defect was the conjunction of those two applications.

Impact and Practical Implications

Doctrinal impact

• The opinion reinforces a long-standing but sometimes overlooked boundary in Guidelines practice: the conduct underlying offense-level calculations as “relevant conduct” cannot also be used to inflate criminal history.
• While unpublished, the decision is a clear application of binding Eleventh Circuit authority (Hunerlach; Johnson) and the Guidelines’ textual cross-references (§§ 1B1.3 and 4A1.2). Expect district courts and probation offices in the Eleventh Circuit to treat it as persuasive confirmation of existing law.
• The opinion also illustrates the continued vitality of Molina‑Martinez and Rosales‑Mireles in establishing prejudice and the fourth prong for plain Guidelines errors—even where the sentence imposed remains within both the incorrect and correct ranges.

Practical guidance for sentencing stakeholders

• Probation officers: When drafting PSIs, flag whether any state or local convictions are factually coterminous with the federal conduct and, if so, treat them as relevant conduct for offense-level purposes and exclude them from criminal history scoring. Avoid describing the same episode as “the same as the instant offense” while also scoring it as a prior sentence.
• Defense counsel: Scrutinize criminal history scoring for episodes explicitly relied upon as relevant conduct for enhancements (especially § 2K2.1(b)(6)(B) and cross-references). Object contemporaneously to preserve de novo review, though Molina‑Martinez/Rosales‑Mireles can still assist on plain error review.
• Prosecutors: If seeking a § 2K2.1(b)(6)(B) enhancement based on uncharged state conduct, be wary of also advocating criminal history points for a state conviction arising from the same conduct; be prepared to articulate why the episodes are distinct in time or nature if you contend they are not relevant conduct.
• District judges: Before adopting PSIs, ensure there is no internal inconsistency between relevant-conduct findings used for offense level and criminal-history scoring. Where an episode is central to § 2K2.1(b)(6)(B), consider whether § 4A1.2’s exclusion rule applies to any convictions from that episode.

What to expect on remand

• Removing the one criminal history point for the August 29 state convictions should reduce the CHC from II to I, lowering the advisory range at offense level 16 from 24–30 months to 21–27 months.
• The district court remains free to reconsider any non-erroneous aspects of the original sentencing so long as it complies with the mandate. Given the original low-end selection, a sentence closer to 21 months is possible, though not compelled.

Complex Concepts Simplified

• Relevant Conduct (U.S.S.G. § 1B1.3): Conduct that is part of, prepares for, or occurs during the offense of conviction; in certain grouped cases, also conduct in the same course of conduct or common scheme. It is used to calculate the offense level.
• Prior Sentence (U.S.S.G. § 4A1.2): A sentence for conduct “not part of the instant offense.” If the conduct is relevant conduct, it cannot be a “prior sentence.”
• Impermissible Double Counting: Using the Guidelines to punish the same harm twice. Here, the same conduct was treated as relevant conduct for offense level and as non-relevant prior conduct for criminal history—the very duplication the Guidelines forbid.
• § 2K2.1(b)(6)(B) “In Connection With” Standard: Enhancement applies if a firearm facilitated, or had the potential to facilitate, another felony offense (federal, state, or local), whether or not charged. Courts look to the relationship between the firearm and the other offense using relevant conduct principles.
• Plain Error Review: Four-part test: (1) error; (2) clear or obvious; (3) affects substantial rights (reasonable probability of a different outcome); and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings. Miscalculated Guidelines ranges commonly satisfy prongs 3 and 4.
• PSI Admissions: Facts in the PSI not objected to are generally deemed admitted and may be relied upon by the court.

Conclusion

United States v. Zamora‑Estrada reiterates a fundamental guardrail in federal sentencing: conduct cannot be both the basis for a § 2K2.1(b)(6)(B) enhancement as “relevant conduct” and simultaneously scored as a “prior sentence” under § 4A1.2. The Eleventh Circuit’s plain-error vacatur rests on clear Guideline text and established circuit law (Hunerlach; Johnson), aided by unobjected PSI findings and the Supreme Court’s framework for prejudice and the fourth prong in Guidelines miscalculation cases (Molina‑Martinez; Rosales‑Mireles). While unpublished, the opinion provides a lucid roadmap for avoiding double counting across offense level and criminal history and will likely shape everyday sentencing practice: probation officers must align narrative findings with scoring, counsel must police for internal inconsistencies, and courts must ensure that relevant conduct is not repurposed as prior history. The upshot is both principled and practical—protecting defendants from unwarranted incremental punishment and enhancing the accuracy and integrity of Guideline calculations.