United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2627
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Benjamin William Willett, *
*
Appellant. *
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Submitted: January 13, 2010
Filed: October 18, 2010
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Before SMITH and COLLOTON, Circuit Judges, and KORNMANN,1 District Judge.
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COLLOTON, Circuit Judge.
Benjamin Willett pled guilty to possession of a stolen firearm, and the district
court sentenced him to 50 months’ imprisonment. Willett appeals his sentence,
arguing that the district court miscalculated the advisory guideline range. We
conclude that the court erred in its application of a four-level specific offense
characteristic for trafficking in firearms, pursuant to USSG § 2K2.1(b)(5), and we
therefore vacate the judgment and remand for resentencing.
1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota, sitting by designation.
I.
Willett, Michael Garr, and Daniel Vieth burglarized several residences within
four days in July 2008. The burglaries took place in Coralville, Iowa, when the
neighborhood was evacuated due to flooding. Approximately 25 firearms were stolen
during the burglaries.
The firearms were taken on two different nights. On one night, Garr and Vieth
stole a semiautomatic rifle, but Willet was not present. On a later night, with Willett
present, the three men broke into another house and discovered a large collection of
firearms. Garr loaded a suitcase with eight to ten firearms and carried them out.
Willett claimed that he did not want to take the firearms, and that it was Garr’s
decision to steal the weapons. The owner later reported that 24 handguns were stolen
from his house.
After the burglaries, Vieth and Garr sold some of the stolen firearms. They sold
the stolen semiautomatic rifle to Seth Mize for $200 from a vehicle in which Willet
and a woman also were present. Willett denied receiving any money from the sale and
claimed that Garr and Vieth split the $200 profit. The three men met with Mize again
in a vehicle several days later, and Mize bought another firearm. During this
encounter, Mize viewed other firearms, and Vieth and Garr told Mize that they had
three additional firearms that they were willing to sell.
Mize later contacted law enforcement to inquire whether the firearms that he
purchased were stolen. Law enforcement seized the firearms and discovered that the
weapons matched the description of firearms stolen from one of the residences. Mize
then agreed to cooperate with law enforcement and to arrange another purchase from
Garr. Mize contacted Garr and explained that he had a friend who was interested in
purchasing two firearms. Following several conversations, Garr and Mize scheduled
a transaction.
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Garr called Mize on the day of the sale and arranged to meet Mize and his
“friend,” an undercover officer, at an apartment building. When Mize and the officer
arrived, they proceeded to apartment 22, where Willett answered the door. It was
clear to the undercover officer that Mize and Willett knew each other, and Willett
informed the two that Garr was next door in apartment 21. Mize and the officer
moved down the hall to the next apartment, where Garr and Vieth were located. Garr
presented a suitcase that contained several handguns, and the officer purchased a
handgun for $200. After Mize and the officer departed, law enforcement agents
arrested Garr and Vieth. A search of the apartment uncovered fourteen additional
firearms.
A grand jury indicted Garr, Vieth, and Willett for firearms offenses, and Willet
pled guilty to possession of a stolen firearm, in violation of 18 U.S.C. §§ 922(j) and
924(a)(2). At sentencing, Willett objected to the application of a four-level specific
offense characteristic, pursuant to § 2K2.1(b)(5), for trafficking in firearms. The
district court concluded that the adjustment applied, calculated an advisory guideline
range of 46-57 months’ imprisonment, and sentenced Willett to 50 months’
imprisonment.
II.
Willett contends that the district court erred in applying the four-level
adjustment under § 2K2.1(b)(5), because the court held him responsible for acts of
Garr and Vieth that the court thought reasonably foreseeable by Willett. We review
the district court’s interpretation of the sentencing guidelines de novo, and its factual
determinations for clear error. United States v. Byas, 581 F.3d 723, 725 (8th Cir.
2009).
When a defendant is convicted under 18 U.S.C. § 922(j), the base offense level
is determined by USSG § 2K2.1(a). A four-level specific offense characteristic also
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applies “[i]f the defendant engaged in the trafficking of firearms.” USSG
§ 2K2.1(b)(5) (emphasis added).2 The commentary to § 2K2.1 provides that “[t]he
term ‘defendant,’ consistent with § 1B1.3 (Relevant Conduct), limits the
accountability of the defendant to the defendant’s own conduct and conduct that the
defendant aided or abetted, counseled, commanded, induced, procured, or willfully
caused.” USSG § 2K2.1, comment. (n.13(B)) (emphasis added).
This limitation means that the defendant is accountable only for conduct
described in USSG § 1B1.3(a)(1)(A), which mirrors application note 13 to USSG
§ 2K2.1. He is not accountable for reasonably foreseeable acts of others, as described
in § 1B1.3(a)(1)(B). Reasonable foreseeability is ordinarily part of the relevant
conduct analysis under § 1B1.3, but this approach governs only “unless otherwise
specified.” USSG § 1B1.3(a). The commentary to § 2K2.1 conspicuously omits any
reference to the foreseeability aspect of relevant conduct, and expressly “limits” the
defendant’s accountability to conduct described in § 1B1.3(a)(1)(A). See United
States v. Delgado-Paz, 506 F.3d 652, 655-56 (8th Cir. 2007) (applying substantially
identical commentary from USSG § 5C1.2); United States v. Pena-Sarabia, 297 F.3d
2
Commentary to the guideline explains that the adjustment applies when the
defendant:
(i) transported, transferred, or otherwise disposed of two or more
firearms to another individual, or received two or more firearms with the
intent to transport, transfer, or otherwise dispose of firearms to another
individual; and
(ii) knew or had reason to believe that such conduct would result in the
transport, transfer, or disposal of a firearm to an individual–
(I) whose possession or receipt of the firearm would be unlawful;
or
(II) who intended to use or dispose of the firearm unlawfully.
USSG § 2K2.1, comment. (n.13(A)).
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983, 987-88 (10th Cir. 2002) (same). Reasonable foreseeability is thus immaterial to
the analysis. United States v. Strange, 102 F.3d 356, 360 (8th Cir. 1996).
The district court’s determination that Willett was responsible for trafficking
in firearms was based on an erroneous interpretation of § 2K2.1(b)(5). The court
thought the definitions section of the commentary to § 2K2.1 referred back to “the
foreseeability of harm,” (S. Tr. 17-18), and the court thus appeared to apply the
specific offense characteristic based on what Willett knew or had reason to believe
about trafficking by Garr and Vieth. The court did not consider whether Willett
engaged in the trafficking of firearms based solely on his own conduct, or conduct that
he aided or abetted, counseled, commanded, induced, procured, or willfully caused.
As such, there was procedural error at sentencing.3
The government contends that even if the district court erred by applying a
reasonable foreseeability standard, the record supports the conclusion that Willett
aided or abetted the trafficking of firearms. Willett responds that his mere presence
at the scene of a sale and knowledge of the transaction is not sufficient to establish
that he aided or abetted firearms trafficking by others. The district court made no
findings on this question, however, and we decline to address it in the first instance.
For these reasons, the judgment of the district court is vacated, and the case is
remanded for resentencing.
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3
Willett argues that the district court also erred in applying § 2K2.1(b)(5)
because the government failed to prove that Mize was an individual “whose
possession or receipt of [a] firearm would be unlawful,” or “who intended to use or
dispose of the firearm unlawfully.” USSG § 2K2.1, comment (n.13(A)). The district
court did not address this element of the specific offense characteristic, and because
we vacate the sentence on other grounds, we do not reach the issue.
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