United States v. Argentina, No. 05-1560-cr (2d Cir. March 29, 2006) (found here)
Argentina was convicted of conspiracy to distribute and possess with intent to distribute narcotics, possession with intent to distribute narcotics, conspiracy to commit robbery, conspiracy to commit money laundering, and carrying a firearm in furtherance of a drug trafficking crime. At sentencing, Argentina received a five-level enhancement under U.S.S.G. § 2B1.3(b)(2)(C) for brandishing a weapon during the commission of a robbery. And, Argentina received a consecutive seven year sentence for carring a weapon in the commission of a crime in violation of 18 U.S.C. § 924(c). On appeal, Argentina argued that the five-level Guidelines enhancement and the seven year mandatory consecutive sentence constituted "double counting" so far as they related to the weapon at issue.
The Second Circuit disagreed. Relying specifically on its decision in United States v. Tran, 234 F.3d 798, 811-12 (2d Cir. 2000), overruled on other grounds by United States v. Thomas, 274 F.3d 655 (2d Cir. 2001), the Second Circuit held that "double counting does not occur when a 18 U.S.C. § 924(c) count involved one criminal act, while a firearms enhancement involved a separate criminal act, even if the two acts are ultimately grouped for sentencing purposes." Thus and with regard to Argentina, the district court did not double count Argentina's use of a weapon "because the 18 U.S.C. § 924(c) offense is linked to the drug offenses, and the firearm enhancement under U.S.S.G. § 2B1.3(b)(2)(C) is linked to the separate robbery offense."
While perhaps not technically double counting, the weapon at issue surely "counted" in two respects in determining Argentina's sentence -- once in connection with his narcotics offense and once in connection with his robbery offense.