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United States v. Shaw

United States District Court, E.D. Virginia, Richmond Division

March 6, 2017

UNITED STATES OF AMERICA
v.
JOHNNY SHAW, Defendant.

          MEMORANDUM OPINION (SUSTAINING UNITED STATES OF AMERICA'S OBJECTION)

          HENRY E. HUDSON, UNITED STATES DISTRICT JUDGE

         THIS MATTER came before the Court on February 24, 2017, for the sentencing of Defendant Johnny Shaw ("Defendant") after he plead guilty to one count of possession of a firearm by a drug user, in violation of 18 U.S.C. § 9229g)(3). At the sentencing hearing, the United States objected to the calculation of Defendant's sentencing guidelines as stated in the Presentence Investigation Report ("PSR"), specifically the total offense level. The Government argued that Defendant should receive a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for transferring a firearm with reason to believe that it would be possessed in connection with another felony. For the reasons announced from the bench during the sentencing hearing and further amplified herein, the Court finds the four-level enhancement applicable, sustains the objection, and finds that Defendant's total offense level is 17.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         The only evidence put on at the sentencing hearing was testimony by Special Agent Joe Norman from the Bureau of Alcohol, Tobacco, Firearms, and Explosives ("ATF") as well as a summary report of an interview he conducted with Defendant on June 17, 2016, admitted over Defendant's objection as Government's Exhibit 1. Special Agent Norman's report and testimony revealed the following pertinent facts.

         On June 17, 2016, ATF Special Agents Joe Norman and Todd Fleming visited Defendant at his residence to discuss five firearm purchases Defendant made in 2015. (Govt. Ex. 1 ¶ 1; see also Id. ¶ 3 (describing the ATF Forms Defendant filled out while purchasing the firearms as well as a general description of each firearm).) Upon learning of the reason for the Agents' visit, Defendant immediately stated that four of the five firearms had been stolen from a van parked in his driveway, but that the Chesterfield County Police Department had refused to file a report without the weapons' serial numbers. (Id. ¶¶ 1, 2.) Defendant stated that the firearms were all previously stored in his van, but that "six (6) months" prior he noticed the guns were missing. (Id. ¶ 3.) Special Agent Norman then informed Defendant that he wanted to review some paperwork relating to Defendant's firearm purchases, and Defendant invited both Agents inside his house. (Id. ¶ 2.)

         The Agents were primarily concerned with the location of a Taurus PT24/7G2 firearm with serial number TIS72351 ("Taurus"), which Defendant purchased on August 5, 2015. (Id. ¶¶ 3, 5.) Special Agent Norman told Defendant that the Taurus had been used in several shootings and that if the firearms were stolen, as Defendant had previously stated, then that meant that Defendant "was responsible for all the shootings that occurred. " (Id. ¶5.)

         Defendant quickly changed his story and "stated that he ha[d] been smoking marijuana at least four (4) to five (5) times a day, every day for the last [fifteen] years, and ha[d] been purchasing marijuana from an unknown" dealer in Petersburg, Virginia. (Id. ¶ 6 (emphasis added).) Defendant stated that he purchased the Taurus for this marijuana dealer, but that he did not know the dealer's name. (Id.) "During questioning, Special Agent Norman was flipping through some paperwork in his folder and a picture of ["W"] was in the paperwork and became visible to [Defendant]. Before Special Agent Norman could show [Defendant] the picture of ["W"], [Defendant] stated 'that's the guy right there, he is the one that has the gun'. [Defendant] stated that he did not know ["W's"] name, but stated that ["W"] was the guy he gave the gun to." (Id. ¶ 8.)

         Defendant then described in detail the events leading up to and surrounding his straw purchase of the Taurus for "W." Defendant stated that "he would purchase marijuana from ["W"] on the street in the area near a Deli, close to Washington Street and Dunlop Street in Petersburg." (Id. ¶ 6 (emphasis added).) During one of an ongoing series of these drug purchases, "W" noticed that Defendant "always open carried a gun, and asked [Defendant] if he was worried about Law Enforcement taking his gun and getting in trouble." (Id. (emphasis added).) Defendant told "W" that he was allowed to buy and carry a gun lawfully. (Id.) "W" then asked Defendant to purchase a firearm for him in exchange for free marijuana. (Id.)

         Defendant agreed and drove "W" to Liberty Firearms in Hopewell, Virginia, where "W" picked out the Taurus as the gun that he wanted Defendant to purchase. (Id. ¶ 7.) After selecting the firearm that he wanted, "W" gave Defendant $400.00 to pay for the Taurus and ammunition. (Id.) Defendant then drove "W" back to Petersburg, where "W" gave defendant "a handful of marijuana" for purchasing the Taurus. (Id.) When the Special Agents asked Defendant why "W" needed Defendant to purchase a gun for him, Defendant stated that he did not know and that he just assumed "W" "was a convicted felon and could not get one for himself." (Id. ¶ 9.) Before concluding their visit, the Special Agents seized from Defendant's home a Hi-Point, JCP 40 caliber pistol, bearing serial number X7232072, and a bag of marijuana. (Id. ¶ 12.)

         On September 20, 2016, the Grand Jury returned a seven-count Indictment, charging the Defendant with possession of firearms and ammunition by a drug user, illegal transfer of a firearm, and possession of marijuana. (ECF No. 1.) Defendant subsequently pleaded guilty to one count of possession of a firearm and ammunition by a drug user in violation of 18 U.S.C. § 922(g)(3) on November 17, 2016. (ECF No. 13.) The Government dismissed the remaining six counts.

         Following the Court's acceptance of Defendant's guilty plea, the case was referred to the United States Probation Office for the preparation of a PSR. The PSR calculated Defendant's total offense level at 13 with a criminal history category of I. (ECF No. 17.) At the sentencing hearing, the Government objected to the PSR and sought the application of a four-level enhancement pursuant to U.S.S.G. § 2K2.1(B) (1)(b). (ECF No. 19.) After hearing evidence and argument, the Court sustained the objection. This opinion followed.

         II. LEGAL STANDARD

         The Court should apply a four-level enhancement to a base offense calculation if it finds that a defendant transferred a firearm "with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6)(B). "The government bears the burden of proving the facts necessary to establish the applicability of [the § 2K2.1(b)(6)(B)] enhancement by the preponderance of the evidence ...." United States v. Garnett, 243 F.3d 824, 828 (4th Cir. 2001); see also United States v. Steffen, 741 F.3d 411, 414 (4th Cir. 2013) ("The burden is on the government to prove by a preponderance of the evidence that the sentencing enhancement should be applied."). In the immediate case, it is undisputed that Defendant "transferred" a gun to "W." Thus, the Government must prove by a preponderance of the evidence that the transfer occurred with Defendant's "knowledge, intent, or reason to believe that [the firearm] would be used or possessed in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6)(B).

         "Another felony offense" is defined by the Sentencing Guidelines as "any Federal, state, or local offense ... punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained." U.S.S.G. § 2K2.1, cmt. n. 14(C). Section 2K2.1(b)(6)(B) "does not require a defendant's knowledge of a specific offense to be committed." United States v. Cutler,36 F.3d 406, 408 (4th Cir. 1994).[1] When, as here, the defendant has personal contact with the gun's recipient, "it is 'logical for the sentencing courts to infer a certain level of knowledge about [the recipient's] intended uses.'" United States v. ...


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