Case: 09-40861 Document: 00511291964 Page: 1 Date Filed: 11/12/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 12, 2010
No. 09-40861 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
MIREYA RIVERA JUAREZ,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Mireya Rivera Juarez pleaded guilty, pursuant to a written plea
agreement, to one count of making a false statement to a federally licensed
firearms dealer in violation of 18 U.S.C. §§ 924(a)(1)(A) and (a)(2). Juarez now
appeals her sentence, arguing that the district court erred when it applied two
four-level enhancements under U.S. Sentencing Guidelines (U.S.S.G.)
§ 2K2.1(b)(5) and § 2K2.1(b)(6). For the reasons discussed below, we affirm.
I
The underlying facts of this case are undisputed. Over an approximately
thirteen-month period, Juarez, a forty-four year old naturalized United States
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citizen with no prior criminal history, purchased twenty-five firearms for a man
known to her only as “El Mano.” The majority of these firearms were military-
style assault weapons, including AK-47 and AR-15 assault rifles, and authorities
ultimately discovered two of the purchased firearms—a Colt .38 caliber pistol
and a Bushmaster .223 caliber rifle—in the possession of gang members in
Mexico.
Juarez began making these purchases after meeting “El Mano” at the
Family Center in Roma, Texas. Juarez approached him to request money for
taxi fare, and “El Mano” asked Juarez if she would be willing to purchase
firearms in exchange for money. Juarez agreed.
Juarez’s purchases for “El Mano” occurred in the following manner. “El
Mano” would contact Juarez by cell phone and instruct her to meet him at the
Family Center. He would then give her money and lend her his vehicle, which
she would use to drive to a gun store. Juarez would purchase the firearms that
“El Mano” had specified, naming herself on ATF Form 4473 as the actual buyer
of the firearms and providing a false address. Juarez would then drive back to
the Family Center, transfer the firearms to “El Mano,” and receive $200 for each
firearm that she purchased. This arrangement ended when “El Mano” informed
Juarez that there would be no further purchases because law enforcement was
“too hot.”
ATF agents began investigating Juarez after receiving a tip that she had
purchased several highly trafficked firearms. Juarez was ultimately charged by
indictment with three counts of making false statements to federally licensed
firearms dealers, in violation of 18 U.S.C. §§ 924(a)(1)(A) and (a)(2). She pleaded
guilty to one count pursuant to a written plea agreement, and the district court
ordered the preparation of a presentence investigation report (PSR).
The PSR assigned Juarez a base offense level of twelve. Juarez then
received a six-level increase because the offense involved twenty-five to ninety-
2
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nine firearms and a two-level reduction for acceptance of responsibility, which
left Juarez with a total offense level of sixteen. After combining Juarez’s offense
level with her category I criminal history, her guidelines range of imprisonment
was twenty-one to twenty-seven months.
The Government filed written objections to the PSR. Specifically, the
Government argued for two separate four-level increases in Juarez’s base offense
level, pursuant to U.S.S.G. § 2K2.1(b)(5) and § 2K2.1(b)(6). The § 2K2.1(b)(5)
enhancement applies to a defendant convicted of a firearms offense who
“engaged in the trafficking of firearms.”1 The application notes to the guidelines
provide that the enhancement 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.2
The § 2K2.1(b)(6) enhancement applies “[i]f the defendant used or possessed any
firearm . . . in connection with another felony offense; or possessed or transferred
any firearm . . . with knowledge, intent, or reason to believe that it would be
used or possessed in connection with another felony offense.” 3
1
U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2K2.1(b)(5) (2008).
2
U.S.S.G. § 2K2.1 cmt. n.13.
3
U.S.S.G. § 2K2.1(b)(6).
3
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The Government argued that the § 2K2.1(b)(5) enhancement should apply
to Juarez because
[t]he types of the weapons Juarez purchased, coupled with Juarez’s
statement that “El Mano” said she could not purchase any more
firearms because law enforcement was “too hot,” and her proximity
to the U.S.–Mexican border and its associated violence leads to the
obvious conclusion that she should have had reason to believe that
the weapons would be transported, transferred, or disposed of to
individuals in Mexico, a disposition which would have been
unlawful.
Additionally, the Government noted that authorities discovered two of the
firearms that Juarez purchased in the possession of gangs in Mexico. The
Government also argued that the same facts supported the application of the
§ 2K2.1(b)(6) enhancement. The probation office ultimately filed an addendum
to the PSR in which it stated that it did not enhance Juarez’s offense level under
either § 2K2.1(b)(5) or § 2K2.1(b)(6) because there was insufficient evidence to
conclude that the enhancements applied, and the office deferred further
consideration of the issue to the district court.
The district court initiated Juarez’s sentencing hearing by obtaining
Juarez’s affirmance that she had reviewed the PSR with her attorney and that
everything in the PSR was factually correct. The district court also granted
Juarez an additional one-level reduction in her offense level based on her
acceptance of responsibility. The district court then turned to the Government’s
argument regarding the § 2K2.1(b)(5) and § 2K2.1(b)(6) enhancements and
concluded that both applied, explaining:
It just seems to me that you would have to be deliberately blind to
the circumstances if we—our proximity to the border, the
substantial drug traffic that is common knowledge to any member
of the community, the violence associated with that, just south of
our border, the types of weapons that are being involved
here—assault, military style, automatic weapons, the nature in
which she’s being asked to purchase these, as a straw person,
4
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somebody who goes only by a nickname, and the fact that she leaves
them in a truck, gets paid, walks away from the truck, that the
circumstances of that are obvious, I think, to anyone who opens
their eyes to the situation to know that these drugs [sic] are being
taken into Mexico to be used for unlawful purposes, and of course,
the mere transporting them into Mexico is unlawful . . . .
***
So I can prove based on those obvious circumstances that the
trafficking enhancement is appropriately assessed, as well as the
enhancement for transferring these with reason to believe that they
would be possessed in connection with another felony offense, so
both of those enhancements are justifiably assessed.
In reaching its decision, the district court did not consider the statement by “El
Mano” to Juarez—that Juarez could no longer purchase firearms for him because
law enforcement was “too hot”—as the statement occurred after Juarez’s final
purchase and thus could not support the enhancements because it did not
evidence Juarez’s knowledge at the time she purchased the firearms. The
district court also granted Juarez, at her request, a two-level reduction because
it found that she was a minor participant.
With the one-level reduction for acceptance of responsibility, the two-level
minor participant reduction, the four-level enhancement under § 2K2.1(b)(5),
and the four-level enhancement under § 2K2.1(b)(6), Juarez’s revised offense
level was twenty-one. This resulted in a guidelines range of thirty-seven to
forty-six months, and the district court sentenced her to thirty-seven months of
imprisonment. On the Government’s motion, the district court dismissed the
remaining counts of the indictment. This appeal followed.
II
We first consider the district court’s decision to apply the § 2K2.1(b)(5)
trafficking enhancement to Juarez. “We review the district court’s
interpretation or application of the Sentencing Guidelines de novo and its factual
5
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findings for clear error.”4 A district court may draw reasonable inferences from
the facts when determining whether an enhancement applies, and we review
those inferences for clear error.5 The government must prove sentencing
enhancements by a preponderance of the evidence.6
As relevant here, the § 2K2.1(b)(5) enhancement applies where the
defendant (1) “transported, transferred, or otherwise disposed of two or more
firearms to another individual” and (2) “knew or had reason to believe that such
conduct would result in the transport, transfer, or disposal of a firearm to an
individual . . . who intended to use or dispose of the firearm unlawfully.”7 Juarez
concedes that she transferred two or more firearms to “El Mano,” but she
contends that the record is devoid of evidence that she knew or had reason to
believe that “El Mano” intended to use or dispose of those firearms unlawfully.
Thus, she argues, the Government failed to establish the second requirement for
the § 2K2.1(b)(5) enhancement.
A
Before addressing the specifics of Juarez’s argument, we note a
preliminary issue—the parties appear to dispute whether we should review the
district court’s decision to apply the § 2K2.1(b)(5) enhancement under the de
novo or clear error standard of review. Juarez argues that the facts before the
district court were uncontested—neither the Government nor Juarez disputed
the PSR’s recital of the facts—and the relevant issue on appeal is the district
court’s application of § 2K2.1(b)(5) to those facts. Juarez contends that the
4
United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007) (citing United States v.
Huerta, 182 F.3d 361, 364 (5th Cir. 1999)).
5
United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010) (citing United States v.
Caldwell, 448 F.3d 287, 290 (5th Cir. 2006)).
6
Trujillo, 502 F.3d at 357.
7
U.S.S.G. § 2K2.1 cmt. n.13.
6
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district court’s decision was simply a legal conclusion drawn from subsidiary
facts, and she notes that, in this circuit, an “application of the facts to the
guidelines is a question of law subject to de novo review.” 8
Juarez’s argument is without merit. She challenges the district court’s
determination that, when she purchased firearms for “El Mano,” she possessed
the requisite “knowledge” or “reason to believe” that “El Mano” intended to use
or dispose of those firearms unlawfully. We have reviewed such determinations
for clear error in prior cases,9 and nothing in the facts of this case warrants a
departure from that approach.
B
Reviewing the district court’s decision for clear error, we conclude that the
district court did not clearly err when it applied the § 2K2.1(b)(5) enhancement.
There is considerable evidence from which the district court could infer that
Juarez knew or had reason to believe that her conduct would result in the
transport, transfer, or disposal of a firearm to an individual who intended to use
or dispose of the firearm unlawfully. “El Mano” was unwilling to purchase the
weapons himself, and he sent Juarez alone to make the purchases, indicating
that he did not wish to be associated with the transactions. The clandestine
nature of Juarez’s dealings with “El Mano” and the fact that she was paid $200
above the retail cost of each of twenty-five weapons for her role also would give
Juarez reason to believe that the firearms were being purchased for an unlawful
8
United States v. Shell, 972 F.2d 548, 550 (5th Cir. 1992).
9
See United States v. Green, 360 F. App’x 521, 523-24 (5th Cir. 2010) (reviewing for
clear error a district court’s finding that a defendant knew or had reason to believe that she
was transferring firearms to someone who intended to use or dispose of the firearms
unlawfully under § 2K2.1(b)(5)); United States v. Caldwell, 448 F.3d 287, 291-92, 293 (5th Cir.
2006) (reviewing for clear error a district court’s finding that defendants had reason to believe
that firearms would be used or possessed in connection with a felony offense under former
§ 2K2.1(b)(5)).
7
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purpose.10 It is highly unlikely that a person who intended to use these weapons
lawfully would pay a $200 premium for each of them.
Although Juarez points to our recent decision in United States v. Green to
support her claim of error, we believe that case is distinguishable. In Green, we
vacated a district court’s decision to apply the § 2K2.1(b)(5) enhancement to a
defendant who, in exchange for $1,500, purchased five Beretta pistols in Texas
and then smuggled the weapons into Mexico for her husband and another man.11
Here, Juarez purchased over two dozen weapons, most of them military-style
assault rifles, and delivered them to a man she knew only by a nickname. The
number of weapons, their type, and the circumstances surrounding Juarez’s
relationship with “El Mano” all serve to separate this case from Green. Under
such circumstances, we cannot conclude that it was clear error for the district
court to infer that Juarez knew or had reason to believe that she was
transferring firearms to an individual who intended to use or dispose of them in
an unlawful manner.12 Accordingly, we affirm the district court’s application of
the § 2K2.1(b)(5) enhancement to Juarez.
III
We next consider Juarez’s challenge to the district court’s decision to apply
the § 2K2.1(b)(6) enhancement. Section 2K2.1(b)(6) provides for a four-level
enhancement when the defendant “possessed or transferred any firearm . . . with
knowledge, intent, or reason to believe that it would be used or possessed in
10
See Caldwell, 448 F.3d at 292 (recognizing that evidence of knowledge that firearms
would be used or possessed in connection with drug activity included their sale on the street
above the market price).
11
360 F. App’x at 522-25.
12
Cf. United States v. Mena, 342 F. App’x 656, 658 (2d Cir. 2009) (affirming district
court’s imposition of the § 2K2.1(b)(5) trafficking enhancement when the defendant, as
instructed by his brother-in-law, twice delivered guns in a plastic bag in exchange for cash on
a street in Manhattan).
8
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connection with another felony offense.”13 A firearm is “used or possessed in
connection with another felony offense” when the firearm “facilitated, or had the
potential of facilitating” the felony offense.14 Thus, in order to demonstrate that
the § 2K2.1(b)(6) enhancement applied to Juarez, the Government needed to
establish by a preponderance of the evidence (1) another felony offense, (2) that
one of the firearms that Juarez purchased facilitated, or had the potential of
facilitating, that felony offense, and (3) that Juarez possessed or transferred the
firearm with knowledge, intent, or reason to believe that it would be used or
possessed in connection with that offense.15
The Government argued below that the same circumstances that
supported the application of the § 2K2.1(b)(5) enhancement supported an
enhancement under § 2K2.1(b)(6). The district court agreed. The district court
did not expressly identify a felony upon which it relied when applying the
§ 2K2.1(b)(6) enhancement to Juarez, but the district court observed that “these
drugs [sic] are being taken into Mexico to be used for unlawful purposes, and of
course, the mere transporting them into Mexico is unlawful.” The Government,
on appeal, points to illegal firearms smuggling in violation of 22 U.S.C.
§§ 2778(b) and (c) and 22 C.F.R. § 121.1 as the felony offense supporting the
enhancement, and Juarez refers to this offense as well. Accordingly, we consider
Juarez’s appeal of the § 2K2.1(b)(6) enhancement with that offense in mind.16
13
U.S.S.G. § 2K2.1(b)(6) (2008).
14
U.S.S.G. § 2K2.1 cmt. n.14(A).
15
See United States v. Anderson, 559 F.3d 348, 357 (5th Cir.), cert. denied, — U.S. —,
129 S. Ct. 2814 (2009).
16
See United States v. Condren, 18 F.3d 1190, 1194 (5th Cir. 1994) (noting that the
initial step in evaluating a § 2K2.1(b)(6) enhancement is to “first identify the other felony
employed in the district court’s enhancement calculus”).
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Juarez makes two arguments on appeal. First, she claims that the illegal
smuggling of firearms into Mexico cannot constitute “another felony offense”
under § 2K2.1(b)(6). Second, she claims that, as with the § 2K2.1(b)(5)
enhancement, the Government failed to establish that she possessed or
transferred a firearm with “knowledge, intent, or reason to believe” that it would
be used or possessed in connection with a felony offense.
A
We first consider Juarez’s argument that the illegal transportation or
smuggling of firearms into Mexico cannot constitute “another felony offense”
under § 2K2.1(b)(6). Juarez claims that the commentary to the guidelines
excludes firearms trafficking and possession offenses from the definition of
“another felony offense” for purposes of the § 2K2.1(b)(6) enhancement and that
the transportation or smuggling of firearms into Mexico is such an excluded
firearms trafficking offense.
Juarez did not present this argument to the district court. Juarez’s only
objection to the application of § 2K2.1(b)(6) at sentencing was her claim that the
Government presented insufficient evidence to establish that she knew or had
reason to believe that any of the firearms would be used or possessed in
connection with a felony offense. That objection did not preserve the issue
Juarez now raises—that the district court relied on a felony offense that cannot
constitute “another felony offense” under the guidelines. We review this
particular challenge for plain error only.17 We find plain error when (1) there
was an error or defect; (2) the legal error was clear or obvious, rather than
subject to reasonable dispute; and (3) the error affected the defendant’s
17
United States v. Perez, 585 F.3d 880, 886 (5th Cir. 2009) (reviewing an objection that
defendant “failed to preserve” at sentencing “for plain error only”).
10
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substantial rights.18 If Juarez satisfies those three elements, the decision to
correct the error then lies within our discretion.19 We will exercise our discretion
to correct the error only if “the error ‘seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.’” 20
The district court did not plainly err. Although we acknowledge that
several of our sister circuits have taken the position Juarez now advances—that
a firearms possession or trafficking offense cannot constitute “another felony
offense” for purposes of the § 2K2.1(b)(6) enhancement—each of the cases Juarez
cites reached that decision after applying a version of the commentary to the
guidelines that has since been amended.21 Our sister circuits, in categorically
excluding firearms possession and trafficking offenses from the definition of
“another felony offense,” relied on an application note that provided, in relevant
part: “[a]s used in [former] subsection (b)(5) [now subsection (b)(6)] . . . ‘another
felony offense’ . . . refer[s] to offenses other than explosives or firearms
18
United States v. John, 597 F.3d 263, 284 n.91 (5th Cir. 2010) (citing Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009)).
19
Id.
20
Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).
21
See United States v. Valenzuela, 495 F.3d 1127, 1133-34 (9th Cir. 2007) (holding that
“a defendant’s sentence may not be enhanced under [former] § 2K2.1(b)(5) [now § 2K2.1(b)(6)]
if the other felony offense is a firearms trafficking or possession offense”); United States v.
Harper, 466 F.3d 634, 650 (8th Cir. 2006) (“‘Another felony offense’ for purposes of [former]
§ 2K2.1(b)(5) does not include firearms possession or trafficking offenses.”); United States v.
Lloyd, 361 F.3d 197, 201 (3d Cir. 2004) (“[R]egardless of the interpretation given to the word
‘another’ in [former] § 2K2.1(b)(5), ‘firearms possession or trafficking offenses’ are categorically
removed from the set of crimes that may constitute ‘another felony offense.’”); United States
v. Boumelhem, 339 F.3d 414, 427-28 (6th Cir. 2003) (holding that a district court erroneously
applied the former § 2K2.1(b)(5) enhancement because the predicate felony—conspiracy to ship
or transport firearms and ammunition in foreign commerce—was a “firearms trafficking
offense” that could not serve as “another felony offense” under the guideline); United States
v. Garnett, 243 F.3d 824, 827 (4th Cir. 2001) (noting that a firearms trafficking offense “cannot
serve as the basis for the [former] section 2K2.1(b)(5) enhancement”).
11
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possession or trafficking offenses.”22 A 2006 amendment to the guidelines
removed that note from the commentary,23 however, and the commentary to the
2008 version of the guidelines—the version applicable in this case—defines
“another felony offense” as “any federal, state, or local offense, other than the
explosive or firearms possession or trafficking offense.” 24
The addition of the word “the” in the amendment indicates the Sentencing
Commission’s intention to no longer exclude all explosive or firearms possession
or trafficking offenses from the definition of “another felony offense” under
§ 2K2.1(b)(6). The commentary now excludes from the definition of “another
felony offense” only the possession or trafficking offense that serves as the basis
for the defendant’s conviction. Here, Juarez’s crime of conviction, making a false
statement to a federally licensed firearms dealer, is distinct from the crime used
to support the application of the enhancement, the illegal transportation of
firearms into Mexico. Accordingly, we reject Juarez’s argument that the district
court erred by treating the illegal transportation or smuggling of firearms into
Mexico as “another felony offense” under § 2K2.1(b)(6).
B
Juarez contends that the Government failed to establish that she
possessed or transferred a firearm with “knowledge, intent, or reason to believe”
that it would be used or possessed in connection with a felony offense. She
asserts that the record does not support the district court’s conclusion that she
knew or had reason to believe that any of the firearms she transferred to “El
Mano” would be smuggled into Mexico. As we already noted with respect to the
22
U.S.S.G. § 2K2.1 cmt. n.15 (2005).
23
U.S.S.G. app. C amend. 691 (Supp. 2008).
24
U.S.S.G. § 2K2.1 cmt. n.14(C) (2008) (emphasis added).
12
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§ 2K2.1(b)(5) enhancement, whether Juarez had the requisite “knowledge” or
“reason to believe” is reviewed for clear error.25
We conclude that the district court did not clearly err when it imposed the
enhancement under § 2K2.1(b)(6). Juarez purchased over two dozen weapons,
the majority of which were military-style assault rifles, for a man that she knew
only as “El Mano.” Many of these purchases were repetitive—in one one-month
period, for example, Juarez purchased the same model of firearm six different
times. In every transaction with “El Mano,” she delivered the weapons in Roma,
Texas, a town located just one mile from the border between Mexico and the
United States, in some instances after transporting them from a gun store in
McAllen, Texas, thirty-seven miles from Roma. The district court cited the
violence across the border between Texas and Mexico as reason for Juarez to
believe that the assault-type weapons she illegally purchased were intended to
be transported the very short distance separating Roma from Mexico. These
facts, considered as a whole, support the district court’s conclusion that Juarez
transferred a firearm with knowledge or reason to believe that it would be
smuggled into Mexico.
Although Juarez compares her case to the Eleventh Circuit’s decision in
United States v. Askew, in which that court concluded that a district court
erroneously applied the § 2K2.1(b)(6) enhancement to a defendant who assisted
in the theft of fifty-four firearms from a gun store with the knowledge that the
guns were being stolen to be sold,26 Juarez’s circumstances are somewhat
different from those present in Askew. The court in Askew relied heavily on the
fact that the defendant was a “non-seller” in that he knew the firearms that he
25
See United States v. Caldwell, 448 F.3d 287, 291-93 (5th Cir. 2006) (reviewing for
clear error a district court’s finding that defendants had reason to believe that firearms would
be used or possessed in connection with a felony offense).
26
193 F.3d 1181, 1185 (11th Cir. 1999).
13
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helped to steal would be sold but did not know to whom they would be sold or
under what circumstances.27 By contrast, the district court here could
reasonably infer from all of the circumstances surrounding Juarez’s purchases
that Juarez transferred at least one of those twenty-five weapons with a “reason
to believe” that it would be illegally smuggled into Mexico.
To be sure, the record contains no direct evidence establishing Juarez’s
knowledge with respect to the future use of the firearms she purchased. But, as
we previously have explained, “the sentencing court is permitted to make
common-sense inferences from the circumstantial evidence.”28 Under the clear
error standard of review, the district court’s decision to apply the enhancement
need only be “plausible in light of the record as a whole.”29 Based on the
particular facts before us, the district court’s finding that Juarez transferred a
firearm with knowledge or reason to believe that it would be illegally smuggled
into Mexico is plausible, and we cannot say that there is clear error. The district
court did not clearly err in applying the § 2K2.1(b)(6) enhancement.
* * *
For the aforementioned reasons, the sentence is AFFIRMED.
27
Id. at 1184-85.
28
Caldwell, 448 F.3d at 292.
29
Id.
14