United States Court of Appeals For the Seventh Circuit ____________________ No. 22-2607 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN FEENEY, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:20-cr-00794-1 — Jorge L. Alonso, Judge. ____________________

ARGUED DECEMBER 13, 2023 — DECIDED APRIL 30, 2024 ____________________

Before WOOD, KIRSCH, and LEE, Circuit Judges. LEE, Circuit Judge. John Feeney pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and carrying an explosive during that unlawful possession in violation of 18 U.S.C. § 844(h)(2). At sentencing, the parties disagreed on the applicable base offense level un- der the Sentencing Guidelines for Feeney’s § 922(g)(1) convic- tion. The government argued that Feeney’s possession of an explosive warranted an increased base offense level under 2 No. 22-2607 U.S.S.G. § 2K2.1(a)(5). Meanwhile, Feeney argued that this outcome would punish him twice for the same conduct in vi- olation of Application Note 4 to U.S.S.G. § 2K2.4. The court agreed with the government and applied the higher base of- fense level to Feeney’s sentence. Because Feeney has the better interpretation of the relevant guideline and application note, we vacate his sentence and remand for resentencing. I. Background On July 24, 2020, officers with the Grundy County Sheriff’s Department received information that Feeney may have been involved in a roadside shootout. The next day, a sergeant be- gan conducting surveillance of Feeney’s residence. After ob- serving Feeney drive away from his house and commit mul- tiple traffic violations, the sergeant pulled him over. During the stop, Feeney was asked to step out of his car and stand at the rear, but instead he ignored the request, locked his car, and walked away. The sergeant and another deputy who ar- rived on the scene eventually caught up to Feeney, searched his vehicle, and found two pistols, ammunition, drugs, and drug paraphernalia. They also found three artillery-shell fire- works, one of which Feeney had modified to contain metal shrapnel. In a four-count superseding indictment, the government charged Feeney, a convicted felon, with unlawfully pos- sessing the two pistols pursuant to 18 U.S.C. § 922(g)(1) and with carrying explosives—the fireworks shells—while com- mitting that felony pursuant to 18 U.S.C. § 844(h)(2). Feeney pleaded guilty to both offenses. In anticipation of sentencing, the probation office pre- pared a presentence investigation report (PSR). As to the No. 22-2607 3 § 922(g)(1) conviction, the PSR set a base offense level of 14 under U.S.S.G. § 2K2.1(a)(6). The PSR then applied two spe- cific offense characteristics. First, it applied a two-point in- crease pursuant to U.S.S.G. § 2K2.1(b)(4) because one of the firearms was stolen. Second, it applied a four-point increase pursuant to § 2K2.1(b)(6)(B) because Feeney possessed the firearms in connection with another felony (here, drug traf- ficking). After a three-level reduction for acceptance of re- sponsibility, Feeney’s total offense level was 17. With a crimi- nal history category of IV, the PSR recommended a guideline range of 37 to 46 months of imprisonment. As to the convic- tion for carrying explosives while committing a felony, the PSR calculated the guideline sentence to be the statutory 10- year minimum under § 844(h)(2). See U.S.S.G. § 2K2.4(a). Both parties objected to the offense-level calculation for the § 922(g)(1) conviction. They reasoned that Application Note 4