United States v. Freeman

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0081p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-4158
v.
,
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Defendant-Appellant. -
CHRISTOPHER FREEMAN,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 09-00030-001—Michael R. Barrett, District Judge.
Decided and Filed: April 4, 2011
Before: GILMAN, GIBBONS, and COOK, Circuit Judges.

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COUNSEL
ON BRIEF: Kevin M. Schad, ASSISTANT FEDERAL PUBLIC DEFENDER,
Cincinnati, Ohio, for Appellant. Timothy D. Oakley, Benjamin C. Glassman,
ASSISTANT UNITED STATES ATTORNEYS, Cincinnati, Ohio, for Appellee.
_________________

OPINION
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RONALD LEE GILMAN, Circuit Judge. Christopher Freeman pled guilty to
one count of possessing stolen firearms, in violation of 18 U.S.C. § 922(j). The district
court imposed a sentence of 43 months’ imprisonment and $27,000 in restitution for the
value of the stolen weapons, minus the value of any items that are recovered. This
prison term is 6 months above the applicable United States Sentencing Guidelines
(U.S.S.G.) range of 30 to 37 months.

1
No. 09-4158 United States v. Freeman Page 2

Freeman objected at sentencing to the district court’s imposition of a sentencing
enhancement based on his trafficking in the stolen firearms, as well as to the court’s
upward departure based on exceptional circumstances. In addition to raising these issues
again on appeal, he objects to the court’s restitution order. For the reasons set forth
below, we AFFIRM the term of imprisonment imposed by the district court, but
REVERSE the court’s restitution order and REMAND the case for further
consideration regarding the issue of restitution.

I. BACKGROUND

Freeman admitted in his plea agreement that he and his accomplice, Christopher
Roehm, were involved in the disposal of approximately 34 firearms that were stolen
from the Arcade Antiques and Gun Shop (the Arcade) in Bethel, Ohio in February 2009.
Roehm sold eight of the weapons to an undercover agent from the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF). Another firearm from the Arcade was
recovered from Roehm’s car when he was arrested shortly after the sale to the
undercover agent. Freeman then sold three more of the weapons to a different ATF
agent in a transaction that Roehm arranged while cooperating with the authorities. At
this meeting, Roehm gave Freeman the cash that Roehm had previously been paid by the
first ATF agent. Freeman also offered the second ATF agent additional firearms that
Freeman claimed were located at another site. According to the plea agreement, the
ATF agent lost contact with Freeman when Freeman departed, purportedly to retrieve
the additional weapons.

A. The Presentence Report (PSR)

At Freeman’s sentencing hearing, the district court adopted the factual findings
contained in the PSR. The PSR explains that, on the day of the burglary, Freeman told
an acquaintance that Freeman had once attempted to break into the Arcade, but that he
had had to flee when a police officer arrived in the area. Freeman also told this
acquaintance that he planned to break into the Arcade because there was easy access
through a window. Later that evening, while Freeman’s sister and an unidentified
No. 09-4158 United States v. Freeman Page 3

juvenile were waiting in a car, he left with a crow bar and a black duffle bag and
returned with the bag full of firearms. Freeman told his sister that he had broken into the
Arcade. Aided by the juvenile, Freeman sold a total of five of the firearms to his cousin,
his uncle, and a drug dealer on the night of the break-in. Freeman then enlisted Roehm’s
assistance to sell more of the stolen firearms. Sometime after 4 a.m. the following
morning, Freeman and Roehm proceeded to sell several of the firearms to their own
heroin dealer in exchange for $400 and approximately five grams of heroin. Roehm sold
one more firearm before he and Freeman parted ways.

They reconvened shortly thereafter, with Freeman giving Roehm eight more
firearms to sell. Freeman told Roehm that he had stolen approximately 40 firearms and
had about 12 remaining. Roehm then sold the eight firearms that he had been given by
Freeman to an undercover ATF agent. After his arrest, Roehm proceeded to cooperate
with the police and assisted in arranging for the sale of three firearms between Freeman
and a second undercover ATF agent. Freeman, Roehm, and the agent then traveled to
Freeman’s apartment, where Freeman claimed that he had other firearms for sale.
Despite Freeman’s inability to enter the apartment because he had misplaced the key, he
obtained payment for the three firearms that he was selling to the agent.

A few days later, Freeman was arrested. He subsequently admitted selling three
firearms to the undercover agent. Freeman also acknowledged that he had told the agent
that he had more firearms for sale at his apartment in an attempt to lure the agent, who
Freeman suspected was an undercover agent, to his apartment for the purpose of robbing
him at gunpoint. Because he observed that the buyer had more money, Freeman had
hoped to take this additional money, retrieve the firearms that he had already sold, and
escape. This plan was foiled when Freeman was unable to gain entry to his apartment.
According to the PSR, Freeman denied burglarizing the Arcade and claimed that he had
obtained all of the firearms from Roehm.
No. 09-4158 United States v. Freeman Page 4

B. Freeman’s sentencing

As part of his plea agreement, Freeman waived the right to appeal his sentence
“except for the grounds that (a) the sentence includes a term of custody that exceeds the
maximum Guideline imprisonment range, or (b) the sentence exceeds the statutory
maximum penalty.” The district court determined that Freeman’s base offense level
under the Guidelines for possessing stolen firearms in violation of 18 U.S.C. § 922(j)
was 12. This level was increased by six based on U.S.S.G. § 2K2.1(b)(1)(C) because the
offense involved between 25 and 99 firearms. The court also imposed a four-level
enhancement for trafficking in firearms based on U.S.S.G. § 2K2.1(b)(5). In addition,
the court addressed a possible four-level enhancement under U.S.S.G. § 2K2.1(b)(6) for
using or possessing a firearm in connection with another felony offense. But the court
clarified before calculating Freeman’s total Guidelines range that it had misspoken and
had actually intended to impose the four-level enhancement under § 2K2.1(b)(5).
Finally, as suggested by the PSR, the court reduced Freeman’s offense level by three
based on Freeman’s acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a)-(b).
A final offense level of 19 and criminal history category of I brought his applicable
Guidelines range to 30 to 37 months in prison.

Freeman argued that the district court’s imposition of a four-level enhancement
for trafficking in firearms constituted impermissible double counting because his
conviction and the enhancement were both predicated on his selling firearms. The
government responded that the enhancement for trafficking in the firearms was not
accounted for by Freeman’s conviction because Freeman could have been convicted
solely for having received or having possessed the stolen firearms, even if he did not sell
them to a third party. Moreover, the government argued, even if Freeman’s conviction
did account for his trafficking in the firearms, the four-level enhancement for trafficking
concerned a distinct aspect of Freeman’s conduct in that his 12-point base offense level
accounted only for his possession of, but not his trafficking in, the firearms. The court
agreed with the government’s position and overruled Freeman’s objection to the
four-level enhancement.
No. 09-4158 United States v. Freeman Page 5

After the district court discussed the various 18 U.S.C. § 3553(a) sentencing
factors, it concluded that an upward departure under U.S.S.G. § 5K2.0(a)(2)(B) was
appropriate. This provision allows for departures from the defendant’s putative
Guidelines range “in the exceptional case in which there is present a circumstance that
the Commission has not identified in the guidelines but that nevertheless is relevant to
determining the appropriate sentence.” U.S.S.G. § 5K2.0(a)(2)(B). The court explained
that because Freeman admitted that he had planned on robbing the undercover agent at
gunpoint, and did not carry out this plan only because he was unable to unlock the door
to his apartment, an upward departure was warranted. In making this determination, the
court also compared Freeman’s sentence to the types of sentences that the court
generally imposed in these types of situations, as well as the fact that Freeman, “the
younger junkie[,] was leading the older junkie [Roehm] down the path in this case.” The
court ultimately imposed a sentence of 43 months in prison, which constituted a 6-month
upward departure from the Guidelines range of 30 to 37 months that would have
otherwise been applicable.

In addition, the district court ordered Freeman to pay $27,000 in restitution,
minus the value of any firearms that are recovered. When the court first suggested this
restitution amount, Freeman’s attorney stated that Freeman was “willing to make every
effort, once he is employed, to try to make recompense for his wrongs here.” But when
the court actually ordered restitution at the end of sentencing, the probation officer
pointed out that restitution is limited to the count of conviction, and that the only
firearms referenced in the indictment were the ones that were a part of the transactions
with the undercover agents. The probation officer further observed that restitution was
not appropriate in this case because all of the firearms referenced in the indictment were
recovered. In response, the government asserted that “the relevant conduct would be
such that the restitution would be appropriate.”

The PSR noted that the total value of the stolen firearms was approximately
$26,000 (rather than the $27,000 referenced by the court), minus approximately $8,000
for the 12 firearms retrieved by the undercover agents, leaving the Arcade’s total loss
No. 09-4158 United States v. Freeman Page 6

at approximately $18,000. Moreover, the Arcade’s owner recovered most of his losses
through an insurance claim that he filed.

II. ANALYSIS

On appeal, Freemam objects to three aspects of his sentence. He first objects to
the district court’s four-level enhancement under U.S.S.G. § 2K2.1(b)(5) for his
trafficking in firearms because, as he argued at sentencing, he claims that this constituted
impermissible double counting. To this first objection, Freeman now adds the argument
that the court did not make proper findings to support this enhancement. He next
contends that the court’s findings were insufficient to support its upward departure under
§ 5K2.0(a)(2)(B) based on exceptional circumstances that were allegedly not accounted
for by the Guidelines. Finally, Freeman argues that the district court’s restitution order
was imposed in error because the conduct underlying the order was not part of the
offense for which he was convicted.

A. Standard of review

Sentences in criminal cases are reviewed for procedural and substantive
reasonableness. Gall v. United States, 552 U.S. 38, 51 (2007). This review is conducted
under the deferential abuse-of-discretion standard. United States v. Novales, 589 F.3d
310, 314 (6th Cir. 2009). Substantive-reasonableness claims do not need to be raised
before the district court to be preserved for appeal. United States v. Penson, 526 F.3d
331, 337 (6th Cir. 2008). But “if a sentencing judge asks . . . whether there are any
objections not previously raised, in compliance with the procedural rule set forth in
United States v. Bostic, 371 F.3d 865 (2004)[,] and if the relevant party does not object,
then plain-error review applies on appeal” to those procedural-reasonableness arguments
that were not preserved in the district court. Penson, 526 F.3d at 337 (alterations and
internal quotation marks omitted) (quoting United States v. Vonner, 516 F.3d 382, 385
(6th Cir. 2008) (en banc)).

In the present case, after the district court imposed Freeman’s sentence, including
the amount of restitution, it asked Freeman’s counsel: “Richard, do you want to renew
No. 09-4158 United States v. Freeman Page 7

your previously-raised objections for the record?” Freeman’s counsel responded to this
question by renewing two objections to the court’s term of imprisonment that he had
previously raised in the sentencing hearing. Although Freeman’s counsel clarified that
he was renewing his objections pursuant to Bostic, the purpose of the Bostic question is
to allow the parties to raise objections “that have not previously been raised.” Bostic,
371 F.3d at 872. Asking the parties whether they want to renew their previously raised
objections, as the district court did here, does not address Bostic’s primary concern of
giving the parties a final opportunity to raise new objections. See United States v. Batti,
631 F.3d 371, 379 n.2 (6th Cir. 2011) (holding that the district court’s question of
whether there was “[a]nything else concerning sentence?” did not satisfy Bostic’s
requirement of asking whether the parties have “any additional objections at the end of
the sentencing hearing” (emphasis added)).

Freeman’s objections on appeal to his term of imprisonment will therefore be
reviewed under the abuse-of-discretion standard as if they had been raised below
because the district court failed to properly ask the Bostic question. Under this standard,
“[t]he district court’s legal interpretation[s] of the Guidelines are reviewed de novo, but
its factual findings will not be set aside unless they are clearly erroneous.” United States
v. Brooks, 628 F.3d 791, 796 (6th Cir. 2011).

We next turn to the district court’s restitution order. If a party does not object
at sentencing to the restitution order, then the order is also reviewed under the plain-error
standard. Batti, 631 F.3d at 379 n.2. But, as is the case with procedural-reasonableness
objections, if the district court fails to ask the Bostic question, then the default
abuse-of-discretion standard of review applies. Id.

The fact that Freeman’s counsel stated early in the sentencing hearing that he did
not have any objections to the district court’s proposed restitution order does not obviate
the need for a proper Bostic question concerning restitution. This is especially true here
because, towards the end of the hearing, the probation officer stated that he doubted the
court’s ability to order any restitution since all of the firearms related to Count 1 of the
indictment were recovered. Despite this “red flag” alert, Freeman has conceded on
No. 09-4158 United States v. Freeman Page 8

appeal that his challenge to the district court’s restitution order should be reviewed for
plain error because he did not raise his challenge at sentencing. Although we might still
be able to review this challenge as if it had been raised below because “a party cannot
‘waive’ the proper standard of review by failing to argue it,” see Brown v. Smith, 551
F.3d 424, 428 n.2 (6th Cir. 2008), we need not further address this issue because we have
concluded that the restitution order should be reversed even under the more deferential
plain-error standard of review.

B. Freeman’s four-level enhancement under U.S.S.G. § 2K2.1(b)(5)

1. Double counting

Freeman argues that his four-level enhancement under U.S.S.G. § 2K2.1(b)(5)
for trafficking in firearms impermissibly double counts his selling firearms to an
undercover agent because, “in order to convict him of the offense of conviction, the
Government needed to, and did, prove that he trafficked in firearms.” He bases this
argument on the fact that Count 1 of the indictment, to which he pled guilty, alleges that
Freeman knowingly disposed of the weapons that he unlawfully possessed, all in
violation of 18 U.S.C.§ 922(j). As such, according to Freeman, his trafficking in
firearms is accounted for in both his initial base offense level and in the § 2K2.1(b)(5)
enhancement.

Freeman errs, however, in arguing that because his offense of conviction
included the disposal of stolen firearms, his initial offense level must have accounted for
this activity as well. Regardless of whether Freeman’s trafficking was accounted for in
his offense of conviction, this conduct factored into the district court’s Guidelines
calculation only once. Freeman’s base offense level of 12, under U.S.S.G.
§ 2K2.1(a)(7), is based solely on his unlawful possession of firearms, with no weight
being given to his trafficking of these, or any related, firearms. “The guideline applied
by the court, U.S.S.G. § 2K2.1 . . . , identifies possession alone as a crime . . . . Thus, the
Sentencing Commission recognized that the guideline would be applied to crimes
involving mere possession of an illegal weapon, regardless of the circumstances under
which it was acquired.” United States v. Dalecke, 29 F.3d 1044, 1047 (6th Cir. 1994).
No. 09-4158 United States v. Freeman Page 9

Freeman’s base offense level of 12 under § 2K2.1(a)(7) and his four-level
enhancement for trafficking pursuant to § 2K2.1(b)(5) are thus punishing entirely
different aspects of his crime. See United States v. Wheeler, 330 F.3d 407, 414 (6th Cir.
2003) (holding that no impermissible double counting occurs where “each of the
guidelines applied by the District Court . . . emphasizes different aspects of Defendant’s
conduct”); see also United States v. Hayes, 399 F. App’x 57, 61-62 (6th Cir. 2010)
(“Although the enhancement and the conviction arose from the same conduct, they
punished different aspects of the defendant’s conduct. The first was his brandishing of
the gun; the second was the physical restraint. So there was no double-counting.”
(alterations, citations, and internal quotation marks omitted)).

2. Disputes at sentencing under Rule 32(i)(3)(B) of the Federal
Rules of Criminal Procedure
Freeman also objects that, in imposing the U.S.S.G. § 2K2.1(b)(5) enhancement,
the district court violated Rule 32(i)(3)(B) of the Federal Rules of Criminal Procedure
by not making adequate findings of fact to support the enhancement. “[F]or any
disputed portion of the presentence report or other controverted matter,” this Rule
requires the court to “rule on the dispute or determine that a ruling is unnecessary either
because the matter will not affect sentencing, or because the court will not consider the
matter in sentencing.” Fed. R. Crim. P. 32(i)(3)(B). When the court explicitly asked the
parties at sentencing if they disagreed with the PSR before adopting its factual findings,
Freeman did not object to the findings related to the § 2K2.1(b)(5) enhancement. The
court therefore did not violate Rule 32(i)(3)(B). See United States v. Treadway, 328
F.3d 878, 886 (6th Cir. 2003) (“We can find no reason to require a district court to make
independent findings outside the PSR when the facts are undisputed.”)

3. Support for the U.S.S.G. § 2K2.1(b)(5) enhancement

Freeman’s final argument relating to § 2K2.1(b)(5) is that the district court did
not make the necessary findings as set out in the Commentary to the Guidelines for that
section. This provision’s Application Note states that § 2K2.1(b)(5) applies to a
defendant who (1) “disposed of two or more firearms to another individual,” and
No. 09-4158 United States v. Freeman Page 10

(2) “knew or had reason to believe that such conduct would result in the . . . 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.” U.S.S.G.
§ 2K2.1 cmt. n.13. The district court is required to find the facts supporting this
provision by a preponderance of the evidence. United States v. Goodman, 519 F.3d 310,
321 (6th Cir. 2008) (explaining that for a prior version of § 2K2.1(b)(5) to apply to the
use or possession of a firearm in connection with another felony offense, the government
had to prove by a preponderance of the evidence that the firearm aided the felonious
conduct (internal quotation marks omitted)).

This circuit has not yet interpreted U.S.S.G. § 2K2.1(b)(5) to determine at what
point a defendant would know or have reason to believe that the transferee intended to
use the transferred firearms unlawfully. But cases interpreting the prior version of
§ 2K2.1(b)(5), which required that the defendant have reason to believe that the firearms
“would be used or possessed in connection with another felony offense,” support the
district court’s application of the current version of § 2K2.1(b)(5) in the present case.
See United States v. Cummings, No. 93-2037, 1994 WL 91825, at *2 (6th Cir. Mar. 22,
1994) (unpublished opinion) (holding that the application of § 2K2.1(b)(5) was
appropriate where “the volume of Cummings’ gun sales was significant; handguns
constituted the largest proportion of the weapons sold; Cummings knew his customers
were criminals; and his customers knew the guns were stolen”); see also United States
v. Cutler, 36 F.3d 406, 407-08 (4th Cir. 1994) (holding that § 2K2.1(b)(5) applied where
the defendant had reason to believe that the firearms were sold to drug abusers and to
violent drug dealers whom the defendant feared), cited favorably by United States v.
Cobb, 250 F.3d 346, 349 (6th Cir. 2001).

Decisions from our sister circuits interpreting the current version of
§ 2K2.1(b)(5) also support the conclusion that this provision applies in the present case.
See United States v. Juarez, 626 F.3d 246, 252 (5th Cir. 2010) (holding that the fact that
the transferee “did not wish to be associated with the [firearms] transactions,” the
secretive nature of the defendant’s dealings with the transferee, “and the fact that she
No. 09-4158 United States v. Freeman Page 11

was paid $200 above the retail cost of each of twenty-five weapons . . . would give
Juarez reason to believe that the firearms were being purchased for an unlawful
purpose”); United States v. Mena, 342 F. App’x 656, 658 (2d Cir. 2009) (holding that
there was no clear error in the district court’s finding that “the circumstances [of the
offense conduct] indicate by a preponderance of the evidence that [Mena] knew or had
reason to believe that his delivery of the firearms was to someone or people who
intended to use or dispose of the firearms unlawfully” where the defendant “twice
delivered guns in a plastic bag in exchange for cash on a street in Manhattan”
(alterations in original) (internal quotation marks omitted)).

Based on the facts included in the PSR, the district court found that Freeman
“participated in transporting, transferring and dispos[ing] of two or more firearms to
another individual.” The court also found that Freeman and Roehm “bartered and sold
guns to a drug dealer.” We have no problem concluding that Freeman’s sale of firearms
to his heroin dealer in the wee hours of the morning in exchange for heroin and cash
gave him reason to know or have reason to believe that his heroin dealer “intended to use
or dispose of the firearm unlawfully.” U.S.S.G. § 2K2.1(b)(5) cmt. n.13.

Furthermore, Freeman’s sale of firearms to his heroin dealer can form the basis
for the district court’s § 2K2.1(b)(5) enhancement even though he was not charged with
this conduct. Under U.S.S.G. § 1B1.3(a)(2), uncharged conduct may be considered in
determining specific offense characteristics (such as those covered by § 2K2.1(b)(5)),
when such conduct is “part of the same course of conduct or common scheme or plan as
the offense of conviction.” U.S.S.G. § 1B1.3(a)(2); see also United States v. Gill, 348
F.3d 147, 153-55 (6th Cir. 2003) (noting that U.S.S.G. § 1B1.3(a)(2) may apply to a
conviction for possession of a controlled substance with intent to distribute).

In order to be considered part of the same course of conduct or common scheme
as the offense of conviction, U.S.S.G. § 1B1.3(a)(2) requires that multiple counts based
on the offenses be grouped under U.S.S.G. § 3D1.2(d). Under § 3D1.2(d), counts
involving substantially the same harm are to be grouped together where “the offense
level is determined largely on the basis of the total amount of harm or loss, the quantity
No. 09-4158 United States v. Freeman Page 12

of a substance involved, or some other measure of aggregate harm, or if the offense
behavior is ongoing or continuous in nature and the offense guideline is written to cover
such behavior.” “[O]ffenses covered by § 2K2.1 of the Guidelines,” such as Freeman’s
offense of conviction and the uncharged conduct of selling firearms to his heroin dealer,
“are to be grouped under this subsection.” See Jenkins v. United States, 394 F.3d 407,
411 (6th Cir. 2005) (quoting U.S.S.G. § 3D1.2(d)). In considering this uncharged
conduct, the district court could properly take into account conduct beyond the scope of
the defendant’s plea agreement. See United States v. Velez, 1 F.3d 386, 389 (6th Cir.
1993) (allowing the district court to consider uncharged conduct in imposing a
sentencing enhancement even though this conduct was beyond the scope of the
defendant’s plea agreement). The district court in the present case was thus allowed to
consider Freeman’s uncharged conduct in imposing the § 2K2.1(b)(5) enhancement even
though, as will be explained below, the court could not consider this conduct in
determining the proper amount of restitution that he owes.

Another condition that must be met in order for § 2K2.1(b)(5) to apply is that
“there must be a relationship between firearms that form part of the relevant conduct and
the firearms that are part of the offense of conviction.” United States v. Howse, 478 F.3d
729, 732 (6th Cir. 2007) (internal quotation marks omitted) (remanding for the district
court to determine whether a clear connection existed between the firearm that was part
of the offense of conviction and the firearm that was possessed during the enhancement
offense). This requirement is satisfied in the present case. The firearms that form the
basis of the § 2K2.1(b)(5) enhancement (i.e., the firearms that Freeman sold to his heroin
dealer) are connected to the firearms that form the basis for the offense of conviction
(i.e., the firearms sold to the undercover agents) because they were all acquired as part
of the same burglary and all sold in the same course of conduct.

Although the district court could have explained more clearly its conclusion that
Freeman’s furtive sale of weapons to his heroin dealer satisfied § 2K2.1(b)(5)’s
requirement that he “knew or had reason to believe that such conduct would result in the
. . . disposal of a firearm to an individual . . . who intended to use or dispose of the
No. 09-4158 United States v. Freeman Page 13

firearm unlawfully,” we find no abuse of discretion in the application of this four-level
enhancement. See United States v. Hall, — F.3d —, 2011 WL 134232, at *3 (6th Cir.
Jan. 18, 2011) (published opinion) (“Though the district court did not mention § 5G1.3
specifically, in light of its entire explanation, it is evident that the district court
considered § 5G1.3(c) and adequately explained its reasons for applying it when
sentencing Hall.”).

C. The district court’s upward departure under U.S.S.G. § 5K2.0(a)(2)(B)

Freeman also objects to the district court’s upward departure, pursuant to
U.S.S.G. § 5K2.0(a)(2)(B), which allows for departures “in the exceptional case in
which there is present a circumstance that the Commission has not identified in the
guidelines but that nevertheless is relevant to determining the appropriate sentence.”
The court imposed a sentence that was six months longer than the top of the applicable
Guidelines range based on Freeman’s admission that he had planned to rob the
undercover agent at gunpoint inside Freeman’s apartment, but was prevented from doing
so only because he did not have the key to the apartment with him at the time.

Although the government argues that this upward adjustment to Freeman’s
sentence was a variance rather than a departure, the sentencing transcript makes clear
that the district court imposed the additional months of imprisonment as an upward
departure. The court explicitly stated that § 5K2.0(a)(2)(B) permits the departure,
explaining that “I think that the upward departure is warranted in this case.” Our review
will therefore focus on whether this adjustment was a proper departure under U.S.S.G.
§ 5K2.0(a)(2)(B).

1. Evaluation of whether U.S.S.G. § 5K2.0(a)(2)(B) or
§ 2K2.1(b)(6) applies to Freeman’s conduct
Freeman contends that “the circumstance relied upon by the court, that [Freeman]
was planning on robbing [the undercover agent], was not one which is ‘not identified in
the guidelines’” because § 2K2.1(b)(6) covers the use or
No. 09-4158 United States v. Freeman Page 14

possession of a firearm in combination with another offense. He argues, in other words,
that the planned robbery of the undercover agent was just the sort of “other offense”
contemplated by the Guidelines. Freeman is correct that § 5K2.0(a)(2)(B) does not
apply to conduct that could be punished by another Guidelines provision because, in
such a situation, the conduct at issue cannot be considered “a circumstance that the
Commission has not identified in the guidelines.” See United States v. Waugh, 207 F.3d
1098, 1101 (8th Cir. 2000) (holding that the district court erred in imposing an
“enhancement” under the § 5K2.0 departure provision where an enhancement under the
separate Guidelines provision for restraining a victim during the course of an offense
would have been appropriate).

But the district court’s imposition of the § 5K2.0(a)(2)(B) departure was
appropriate here because the evidence does not show that Freeman’s planned robbery
of the undercover agent was necessarily subject to the § 2K2.1(b)(6) enhancement. An
enhancement pursuant to § 2K2.1(b)(6) requires that the firearm possessed in connection
with another felony be connected to the firearm that is the subject of the underlying
firearm-possession charge. Howse, 478 F.3d at 733 (holding that the application of the
enhancement for using a firearm in connection with another felony offense is proper only
if there is a clear connection between the firearm that was used in the other offense and
the one that was used in the offense of conviction). The record here does not show that
the firearm Freeman planned on using to rob the undercover agent was one of the
firearms that was stolen from the Arcade. We conclude that because § 2K2.1(b)(6) was
not shown to be applicable, Freeman’s plan to rob the undercover agent qualifies as a
circumstance under § 5K2.0(a)(2)(B) that was not identified by the underlying
Guidelines provision.

And even if we assume for the sake of argument that § 2K2.1(b)(6) could in fact
cover Freeman’s plan to rob the undercover agent, the district court’s alleged error in
applying § 5K2.0(a)(2)(B) instead of § 2K2.1(b)(6) would be harmless if “we are certain
that the error did not affect the district court’s selection of the sentence imposed.”
United States v. Jeross, 521 F.3d 562, 569, 573-76 (6th Cir. 2008) (internal quotation
No. 09-4158 United States v. Freeman Page 15

marks omitted) (holding that the district court’s use of an incorrect method for
calculating the amount of drugs at issue was harmless because “the end result under
either method” would have resulted in the court “depart[ing] downward from the
Guidelines range and render[ing] a sentence within the statutory maximum” of 240
months’ imprisonment, and “[n]othing in the record, moreover, suggests that the district
court would have imposed a sentence of less than 240 months”).

Nor would the application of § 2K2.1(b)(6) in conjunction with Freeman’s
§ 2K2.1(b)(5) gun-trafficking enhancement raise any double-counting concerns because
§ 2K2.1(b)(6) (focusing on the possession of a firearm in connection with another felony
offense) would apply to a felony offense that is separate from the § 2K2.1(b)(5)
trafficking enhancement. See U.S.S.G. § 2K2.1 cmt. n. 13(D) (stating that “[i]f the
defendant used or transferred one of such firearms in connection with another felony
offense (i.e., an offense other than a firearms possession or trafficking offense) an
enhancement under subsection (b)(6) also would apply” in addition to the enhancement
under subsection (b)(1) based on the number of firearms involved and the enhancement
under subsection (b)(5) for trafficking).

Moreover, assuming that § 2K2.1(b)(6) could apply to Freeman’s planned
robbery of the undercover agent, the four-level enhancement that § 2K2.1(b)(6) would
add to Freeman’s Guidelines offense level would bring the lower end of Freeman’s
adjusted Guidelines range above the total of 43 months’ imprisonment that the court
imposed pursuant to § 5K2.0(a)(2)(B). See Jeross, 521 F.3d at 573-76 (holding that the
district court’s error in calculating the amount of drugs at issue was harmless because
the error had no impact on the defendant’s sentence). We are thus confident that if
§ 5K2.0(a)(2)(B) did not apply to Freeman’s planned robbery of the undercover agent
because § 2K2.1(b)(6) applied instead, the district court’s error in applying
§ 5K2.0(a)(2)(B) would have been harmless because the correct application of
§ 2K2.1(b)(6) would have resulted in a sentence of at least the same length as the
43 months that Freeman received under § 5K2.0(a)(2)(B). See United States v. Farmer,
42 F. App’x 804, 808 (6th Cir. 2002) (“Any arguable inadequacy in the district court’s
No. 09-4158 United States v. Freeman Page 16

articulation of its reasons for departing upward were, at worst, harmless error, given that
specific and appropriate reasons for the departure are evident on the record.”).

2. The unusual nature of Freeman’s planned robbery

Freeman also claims that his plan to rob the undercover agent was not unusual
or exceptional because involvement in other alleged criminal conduct “in addition to the
mere weapons possession . . . in fact is de rigeur for these type[s] of offenses.” But, as
the government points out, “in the cases upon which Freeman relies, the defendants’
advisory guidelines range included an enhancement to reflect the increased danger in
unlawfully possessing a firearm in connection with another crime, whereas, in Freeman’s
case, no aspect of his advisory guidelines range accounted for the risk of harm posed by
his planned robbery.”

Moreover, Freeman’s planned robbery was particularly dangerous and unusual
because, as the government explains,

possessing a firearm in connection with another crime, as a general
matter, is one thing (albeit a serious one); but it is quite another (and
more serious) to sell firearms to someone immediately before trying to
rob the guns back; and it is still another (and yet more serious) where the
intended victim of the robbery is an undercover federal agent—especially
where the defendant believes his intended victim is an undercover law
enforcement official.

We therefore conclude that the district court did not err in imposing a six-month upward
departure under U.S.S.G. § 5K2.0(a)(2)(B). And even if we are wrong in our view that
U.S.S.G. § 5K2.0(a)(2)(B) applies instead of § 2K2.1(b)(2)(6), the alleged error by the
district court was harmless.
No. 09-4158 United States v. Freeman Page 17

D. Restitution

1. Appellate waiver

As the final issue raised on appeal, Freeman argues that his restitution order is
overbroad. He was convicted only for the firearms that were involved in the transactions
with the undercover agents, yet the restitution order accounts for all of the firearms that
were stolen from the Arcade. The government responds by arguing that, through his
plea agreement, Freeman waived his right to appeal the district court’s restitution order.
(Because Freeman “does not deny that his agreement was knowing, voluntary, and
intelligent,” we do not need to address that issue. See United States v. Caruthers,
458 F.3d 459, 470 n.3 (6th Cir. 2006).)

Freeman’s appellate waiver limited his right of appeal to sentences that are above
the statutory maximum penalty or that are above the maximum Guidelines range. The
government relies primarily on this court’s decision in United States v. Sharp, 442 F.3d
946 (6th Cir. 2006), to support its waiver argument. In Sharp, the defendant agreed to
an appellate waiver that reserved the very same rights that Freeman reserved here. Sharp
claimed on appeal that the “district court erred in calculating the losses occasioned by
his relevant conduct at $49,599.74—the combined amount lost by all victims of the
conspiracy—rather than at $17,418.05, the amount that Sharp admits was lost as the
result of his direct actions.” Id. at 952.

This court in Sharp relied on United States v. Sosebee, 419 F.3d 451 (6th Cir.
2005), to hold that Sharp had waived his right to make his direct-action claim on appeal
because the claim was not included in the narrow reservation of rights in his appellate
waiver. Sharp, 442 F.3d at 952 (“Because the restitution statutes do not contain a
maximum penalty, Sharp cannot be heard to complain that the restitution order violates
the statutory maximum for his offense.”). The court in Sharp also held that “[b]ecause
there is no applicable Guidelines range for the amount of restitution, the restitution order
could not have constituted an upward departure from such a range.” Id.
No. 09-4158 United States v. Freeman Page 18

But Sharp is distinguishable from the present case because the defendant in
Sharp pled guilty to the conspiracy count that the indictment charged against him. “In
calculating restitution, ‘the loss caused by the conduct underlying the offense of
conviction establishes the outer limits of a restitution order.’” United States v. Kratt,
579 F.3d 558, 565 (6th Cir. 2009) (quoting Hughey v. United States, 495 U.S. 411, 420
(1990)), cert. denied, 130 S. Ct. 2115 (2010). Although the defendant in Sharp claimed
that only his direct actions, and not the conspiracy as a whole, were the “relevant
conduct” for purposes of restitution, the conspiracy was undoubtedly the “offense of
conviction” because Sharp was charged with and pled guilty to the conspiracy count.
This court in Sharp thus dealt only with the narrow situation in which the defendant had
waived the right to determine on appeal whether the conspiracy—to which he pled
guilty—was part of the “relevant conduct” that could form the basis of a restitution
order.

In contrast to Freeman’s claims in the present case, the defendant in Sharp could
not have plausibly contested the fact that his restitution order was based on the conduct
underlying the “offense of conviction,” i.e., the conspiracy that formed the basis of
Sharp’s guilty plea. Although Sharp also indicates that a defendant signing a similar
appellate waiver has waived the right to appeal any facet of the court’s restitution order,
this broader language was not necessary for the narrower conclusion that Sharp had
waived the right to appeal whether the conspiracy count could form the basis of his
restitution order. Sharp’s overly broad language is thus dicta that does not bind us in the
present case. See United States v. Burroughs, 5 F.3d 192, 194 (6th Cir. 1993) (holding
that “one panel of this court is not bound by dicta in a previously published panel
opinion”).

As the Tenth Circuit explained in its critique of Sharp, the restitution statute
“does set a statutory maximum on the amount of restitution.” United States v. Gordon,
480 F.3d 1205, 1210 (10th Cir. 2007) (emphasis in original). This maximum is, absent
two exceptions that are not applicable here, “the amount causally linked to the offense
of conviction.” Id. Because the parties in Gordon “only intended that Ms. Gordon
No. 09-4158 United States v. Freeman Page 19

would waive the right to appeal aspects of her sentence and restitution that were imposed
within the authority granted to the district court by the relevant statutes,” the Tenth
Circuit held that Ms. Gordon had not waived her right to appeal “the restitution order to
the extent it requires payments for losses not causally linked to the count of conviction”
for credit card fraud. Id. at 1207, 1209.

The most natural reading of the plea waiver at issue in the present case also
supports the conclusion that Freeman did not waive all possible objections to his
restitution order. A defendant’s ability to appeal sentences above the statutory maximum
allows the defendant to object to sentences that plainly have no basis in law. In fact,
even where a defendant does not reserve the right to appeal a sentence that exceeds the
statutory maximum, “an appellate waiver may not bar an appeal asserting that the
sentence exceeds the statutory maximum” because “a defendant who waives his right to
appeal does not subject himself to being sentenced entirely at the whim of the district
court.” United States v. Caruthers, 458 F.3d 459, 471–72 (6th Cir. 2006) (internal
quotation marks omitted). Just as defendants are not at a district court’s whim regarding
their terms of imprisonment, they must also be able to appeal restitution orders that have
no basis in law. See id. (suggesting that the “district court is without jurisdiction to
impose a sentence exceeding the statutory maximum,” and that denying defendants the
ability to appeal sentences above the statutory maximum would constitute a miscarriage
of justice). In the present case, Freeman explicitly reserved the right to appeal sentences
above the statutory maximum. We believe that this reservation includes the right to
appeal a restitution order that is not based on conduct underlying the offense of
conviction.

Moreover, “[p]lea agreements are contractual in nature, so we use traditional
contract law principles in interpreting and enforcing them.” United States v. Bowman,
— F.3d —, 2011 WL 350296, at *3 (6th Cir. Feb. 7, 2011) (published opinion) (internal
quotation marks omitted). “But because plea agreements’ constitutional and supervisory
implications raise concerns over and above those present in the traditional contract
context, in interpreting such agreements we hold the government to a greater degree of
No. 09-4158 United States v. Freeman Page 20

responsibility than the defendant . . . for imprecisions or ambiguities in the plea
agreements.” Id. (alteration in original) (internal quotation marks omitted).

“Ambiguities in a plea agreement are therefore construed against the government,
especially because the government can take steps in drafting a plea agreement to avoid
imprecision.” Id. (citing United States v. Fitch, 282 F.3d 364, 367–68 (6th Cir. 2002));
see also Gordon, 480 F.3d at 1209–10 (holding that, as a matter of contract
interpretation, a “plea agreement permitting a court to impose a restitution order beyond
that authorized by statute might well be unenforceable on grounds of public policy,” and
that the defendant is “entitled to presume, when she entered the plea agreement, that the
judge would order restitution in a legal manner”). We therefore hold that Freeman did
not waive the right to appeal whether the district court exceeded its statutory authority
by imposing a restitution order that was based on losses exceeding those caused by the
conduct underlying the offense of conviction.

2. Offense of conviction

Freeman argues that because restitution is limited to “the loss caused by the
conduct underyling the offense of conviction,” restitution in the present case should be
limited to covering the value of the 12 firearms that are listed in his indictment. Where
a defendant is “convicted pursuant to a guilty plea rather than by a jury, the court should
look to the plea agreement, the plea colloquy, and other statements made by the parties
to determine the scope of the ‘offense of conviction’ for purposes of restitution.” United
States v. Elson, 577 F.3d 713, 723 (6th Cir. 2009). Freeman’s plea information is less
than clear regarding which acts “the parties intended to include” as “supporting his
conviction.” See id. at 723–24. On the one hand, the plea agreement states that Freeman
would plead guilty to Count 1 of his indictment and that the charges brought against him
would be limited to “one count of 18 U.S.C. § 992(j), as set forth in the Indictment.”
The district court at Freeman’s plea colloquy also specified that Freeman was pleading
guilty to Count 1 of the indictment and that he is “basically in the same boat as if [he
had] been convicted by a jury” on Count 1. Moreover, the only reference in Freeman’s
plea agreement to restitution is the statement in the first paragraph that Count 1 of
No. 09-4158 United States v. Freeman Page 21

Freeman’s indictment subjects him to restitution. And Count 1 of Freeman’s indictment
mentions only the 12 firearms that were associated with the undercover agents, and
makes no mention of any of the other firearms that were stolen from the Arcade. This
information thus suggests that Freeman’s plea is limited to his and Roehm’s interactions
with the undercover agents.

On the other hand, the statement of facts in Freeman’s plea agreement notes that
he was involved in the disposal of approximately 34 firearms that were stolen from the
Arcade. (This statement also mentions that Freeman offered to sell additional firearms
to one of the agents, but does not specify whether Freeman actually possessed these
additional weapons.) But even this statement of facts goes into detail regarding only the
firearms that were involved in Freeman’s and Roehm’s interactions with the undercover
agents.

Taken as a whole, the plea agreement and colloquy tend to cabin the acts
underlying the offense of conviction to those related to the interactions with the
undercover agents. From the government’s point of view, this information is at best
ambiguous as to whether the theft of all of the firearms should be considered relevant as
well. But ambiguous plea agreements are to be construed in favor of the defendant.
Bowman, 2011 WL 350296, at *3. Freeman’s plea information therefore requires
limiting his conduct underyling the offense of conviction to Freeman’s possession of the
12 firearms related to his and Roehm’s dealings with the undercover agents.

The district court’s restitution order that was based on the burglary of all of the
firearms from the Arcade must therefore be reversed. On remand, the district court
should determine the proper amount of restitution based on only the 12 firearms involved
in Count 1 of the indictment, minus the value of any of the firearms that are recovered.
We note in this regard that the PSR took the position that Freeman should not owe any
restitution because “all of the stolen firearms mentioned in the indictment were
recovered.” Whether that position is correct is for the district court to decide in the first
instance.
No. 09-4158 United States v. Freeman Page 22

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the term of imprisonment
imposed by the district court, but REVERSE the court’s restitution order and
REMAND the case for further consideration regarding the issue of restitution.