United States v. Harvey

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0204p.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. 09-4261
v.
,
>
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Defendant-Appellant. -
AARON HARVEY,
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Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 08-00138-001—Michael R. Barrett, District Judge.
Argued: June 2, 2011
Decided and Filed: August 4, 2011
Before: ROGERS and KETHLEDGE, Circuit Judges; RUSSELL, Chief District
Judge.*
_________________
COUNSEL
ARGUED: Kevin M. Schad, FEDERAL PUBLIC DEFENDER’S OFFICE, Cincinnati,
Ohio, for Appellant. Jennifer C. Barry, ASSISTANT UNITED STATES ATTORNEY,
Cincinnati, Ohio, for Appellee. ON BRIEF: Kevin M. Schad, FEDERAL PUBLIC
DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant. Jennifer C. Barry,
ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.
_________________

OPINION
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ROGERS, Circuit Judge. A jury convicted Aaron Harvey of making a false
statement during the purchase of firearms in violation of 18 U.S.C. § 922(a)(6).
Essentially, Harvey had purchased firearms for other persons while stating that he was

*
The Honorable Thomas B. Russell, Chief United States District Judge for the Western District
of Kentucky, sitting by designation.

1
 No. 09-4261 United States v. Harvey Page 2

the actual purchaser. Harvey appeals his conviction, challenging the district court’s
evidentiary rulings, jury instructions, response to jury questions, and the overall
sufficiency of the evidence. Harvey also argues that the district court erred in applying
a four-level sentencing enhancement for transferring a firearm with reason to believe that
it would be used in connection with another felony. See U.S.S.G. § 2K2.1(b)(6).
Harvey’s claims do not require reversal.

I.

Harvey purchased five handguns in Cincinnati between January and August 2007.
He first went to Costello’s Gun Shop on January 6 and purchased a HiPoint .38 caliber
pistol. One week later, he bought a Smith & Wesson 9 mm at Arms & Accessories, Inc.
On August 7, he went back to Costello’s with two teenagers, James Perkins and
Monsanna Torbet (known as “Suki”), and purchased three more firearms: an Intratec
9 mm and two Taurus .40 caliber pistols. Each time, Harvey filled out Alcohol Tobacco
& Firearms (ATF) Form 4473 representing that he was the actual purchaser of the
firearms and was not purchasing them on behalf of someone else.

One by one, the guns turned up on the streets of a high-crime neighborhood in
Cincinnati. On June 18, 2007, Cincinnati police recovered the HiPoint in an abandoned
building. Then on August 24, the police arrested Perkins, a convicted felon who was
carrying one of the Taurus pistols. On December 24, the police arrested Robert Mitchell
for drug trafficking and for being a felon in possession of a firearm that turned out to be
the Intratec 9 mm. And on July 10, 2008, the police found the Smith & Wesson in a trash
can while investigating a double homicide.

Because the ATF forms identified Harvey as the last known purchaser of the guns,
ATF Special Agent Eric Miller and Task Force Officer Michael Drexelius interviewed
Harvey in March 2008. Harvey initially told them the guns were stolen. But after the
agents showed him a photograph of Perkins and offered to help him prepare a police
report, Harvey admitted purchasing the guns at Costello’s for himself, Perkins, and Suki.
Harvey further admitted that immediately after they left Costello’s on August 7, Perkins
gave Harvey $340 for one of the Taurus pistols; that Harvey had seen Suki with the other
 No. 09-4261 United States v. Harvey Page 3

Taurus and the Intratec 9 mm while Suki was selling crack cocaine; and that Suki had
later “tossed” those guns while being chased by the police.

In December 2008, after the Smith & Wesson was recovered, the agents
interviewed Harvey a second time. The interview was secretly recorded, and Harvey
changed his story again. This time, Harvey claimed that the guns were taken from him
without his knowledge while he was staying at the home of Suki’s mother, and that Suki
actually sold the guns rather than “tossed” them. Harvey stated that Suki and Perkins
were like “brothers” to him, admitted recognizing Mitchell as one of “Suki’s boys,” and
identified Mitchell as the person to whom Suki had sold the Intratec and one of the Taurus
pistols.

Harvey was indicted on two counts of making a false statement in connection with
the purchase of a firearm: one for the Smith & Wesson purchase, and one for the August
purchases at Costello’s. After a dispute over whether the recording of the second
interview would be played for the jury, the district court ruled that three aspects of the
recording were not admissible: (1) statements referring to the HiPoint (for which no
charges were filed); (2) statements referring to a double homicide involving the Smith &
Wesson; and (3) Harvey’s exculpatory statements in which he claimed that Suki had
taken the guns without his knowledge. The recorded interview was laced with this
inadmissible evidence, and both sides objected to certain portions of the tape. As a
compromise, the court excluded the whole tape, but warned that if any part of the
recording was introduced by either party, the entire recording would be admitted under
the rule of completeness.

At trial, the Government adhered to the court’s ruling, but Harvey did not. During
cross-examination, defense counsel attacked Agent Miller’s credibility regarding what
Harvey had told the agents about the Smith & Wesson during their initial encounter in
March 2008. The defense pointed to statements made during the second interview to
impeach Agent Miller’s testimony that Harvey had not disclosed the Smith & Wesson
during the March interview. Consistent with its pretrial order, the district court then
 No. 09-4261 United States v. Harvey Page 4

admitted almost the entire recorded statement, including the references to the HiPoint, the
recovery of the Smith & Wesson, and Harvey’s exculpatory statements.

At the close of the evidence, Harvey did not object to the district court’s jury
instructions, which included an instruction that the Government was not required to
present all the evidence it had, and an instruction on the difference between motive and
intent. The jury asked several fact-specific questions during deliberations. The district
court responded by reading portions of the record to the jury, and also instructed the
jurors to focus on their recollection of the evidence as a whole. The jury acquitted
Harvey on the first count but convicted him on the second. At sentencing, the court
overruled Harvey’s objection to a four-level upward adjustment under U.S.S.G.
§ 2K2.1(b)(6) for transferring a firearm with reason to believe that it would be used in
connection with another felony. The district court then sentenced Harvey to 32 months
in prison.

II.

On appeal, Harvey challenges (1) the sufficiency of the evidence supporting his
conviction, (2) the district court’s admission of the previously excluded evidence, (3) the
jury instructions on motive and the amount of evidence required by the Government,
(4) the court’s response to the jury’s questions, and (5) application of the sentencing
enhancement. All of Harvey’s claims lack merit.

A.

Harvey’s conviction is supported by sufficient evidence. The jury convicted
Harvey of making a false statement during the purchase of a firearm in violation of
18 U.S.C. § 922(a)(6). That section provides:

It shall be unlawful . . . for any person in connection with the acquisition
or attempted acquisition of any firearm or ammunition from a licensed
importer, licensed manufacturer, licensed dealer, or licensed collector,
knowingly to make any false or fictitious oral or written statement or to
furnish or exhibit any false, fictitious, or misrepresented identification,
intended or likely to deceive such importer, manufacturer, dealer, or
collector with respect to any fact material to the lawfulness of the sale or
 No. 09-4261 United States v. Harvey Page 5

other disposition of such firearm or ammunition under the provisions of
this chapter.

18 U.S.C. § 922(a)(6). To sustain a conviction in this case under § 922(a)(6), the
Government had to prove beyond a reasonable doubt that: (1) the defendant knowingly
made (2) a false or fictitious oral or written statement that was (3) material to the
lawfulness of the sale or disposition of a firearm, and was (4) intended to deceive or likely
to deceive a firearms dealer.

Contrary to Harvey’s argument, there was sufficient evidence to find that, at the
time he purchased the three weapons on August 7, he knew that his statement on Form
4473—that he was the actual purchaser—was false. Harvey claims that when he filled
out the ATF form at Costello’s, he intended to keep the Taurus for himself, and the idea
of selling the gun to Perkins only occurred to him later. But a jury could reasonably see
things differently. Agent Miller and Officer Drexelious testified that Harvey admitted
purchasing the guns at Costello’s for Perkins and Suki and taking $340 from Perkins in
exchange for one of the Taurus pistols when they left Costello’s. A jury could infer from
the exchange of money immediately after the purchase, together with Harvey’s
admissions to the ATF agents, that Harvey purchased the guns for Perkins and Suki, not
for himself as he told the firearms dealer. Drawing all inferences in the Government’s
favor, see Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), the jury’s determination that
the false statement was knowingly made was reasonable.

The false statement was also “material to the lawfulness of the sale,” 18 U.S.C.
§ 922(a)(6), because, as of August 2007, Perkins and Suki—the true purchasers under the
Government’s “straw purchase” theory—were under the age of 21 and could not legally
purchase a handgun. During the August visit to Costello’s, Perkins purchased a rifle and
filled out an ATF form indicating that his birth date was January 1989, making him 18
at the time. And during his December 2008 interview with the ATF agents, Harvey
admitted that Suki had only just turned 19. Thus, the Government proved that Perkins
and Suki could not lawfully possess handguns, and Harvey’s false statement was
 No. 09-4261 United States v. Harvey Page 6

therefore clearly material. We need not decide whether the materiality requirement could
have been met without such proof.1

Harvey protests that his later, recorded statements—that the guns were stolen
while he was staying at the home of Suki’s mother—were more credible than his March
2008 confession. The jury, however, had ample reason to discredit the recorded statement
as self-serving. First, it was the third version of Harvey’s story, after he had previously
made inculpatory statements during the initial interview. Second, after being shown a
photograph of Perkins, Harvey confessed that he purchased the guns for Perkins and Suki.
Third, other portions of the recorded interview—including Harvey’s statements that he
had seen Suki using two of the weapons while Suki was selling crack cocaine and that
Suki and Perkins were like brothers to Harvey—suggested that Harvey had close
relationships with people who ended up with his guns, relationships from which the jury
could infer a plan to purchase the weapons for Suki and Perkins. Finally, the fatal flaw
in Harvey’s argument is that even if the jury believed his self-serving statement that Suki
stole the Intratec 9 mm and one of the Taurus pistols, that would not explain how a third
weapon—the other Taurus—ended up in the hands of Perkins, who was also underage.
From all of this evidence, a jury could infer that Harvey’s initial confession to the ATF
agents, made before he had an opportunity to consult with Suki about what to tell the
police, was more credible than his later attempts to shift the blame to Suki.

B.

The trial court did not abuse its discretion by admitting the recorded second
interview after defense counsel questioned Agent Miller on what Harvey told the ATF
agents about the Smith & Wesson, because the attack on Agent Miller’s credibility
opened the door to the previously excluded portions of the recording. Before trial, both
sides moved to exclude portions of the recorded second interview. The court ultimately
ruled that the following were not admissible: (1) evidence that Harvey purchased a
HiPoint later recovered in an abandoned building; (2) evidence that the Smith & Wesson

1
Arguably, a purchaser’s misrepresentation that he is the actual buyer is itself a materially false
statement. See United States v. Hernandez, 633 F.3d 370, 372 (5th Cir. 2011).
 No. 09-4261 United States v. Harvey Page 7

was recovered from the scene of a multiple shooting; and (3) Harvey’s recorded
exculpatory statements. The court, however, warned counsel that introducing any part
of the recorded statement would open the door to the entire recording. Admitting only
the exculpatory statements, the court reasoned, would lead jurors to think that the
Government was trying to conceal the recorded statement.

The court did not abuse its discretion by admitting the entire recording (including
the exculpatory portions) after defense counsel cross-examined Agent Miller about
contradictory statements in the recording. Defense counsel all but invited the court to
admit the evidence. “Generally, evidence which is otherwise suppressed or excluded
becomes admissible when the defendant opens the door to the issue.” United States v.
Crawford, 86 F. App’x 834, 838 (6th Cir. 2004). “If the defendant uses otherwise
excluded evidence, the district court does not abuse its discretion by allowing the
prosecution to use the inculpatory aspects of the excluded material to ‘clear up’ any false
impressions created by the defense.” Id. (quoting United States v. Spikes, 158 F.3d 913,
929 (6th Cir. 1998)). The district court repeatedly warned counsel that cross-examining
the Government witnesses about Harvey’s recorded statements would result in the
admission of the entire recording, which included the circumstances of how Cincinnati
police recovered the HiPoint and the Smith & Wesson.

Despite these warnings, defense counsel persisted in asking Agent Miller about
discrepancies between his account of the initial interview—that Harvey had failed to
mention anything about a Smith & Wesson—and the agents’ subsequent confusion in the
second interview about which guns Harvey had told them about. The court then
permitted the Government to rehabilitate Agent Miller by introducing the context of the
recorded statement, which showed that the agents did not know Harvey had purchased
a Smith & Wesson until after it was recovered from a shooting, and that the Smith &
Wesson was not recovered until after the initial interview in March 2008. The timing and
circumstances surrounding the recovery of the Smith & Wesson explained the ATF
agents’ confusion about the weapons in the second interview and rebutted the defense’s
 No. 09-4261 United States v. Harvey Page 8

implication that Agent Miller had consciously misrepresented Harvey’s disclosure about
the Smith & Wesson in the first interview.

Even if the district court might have imposed a less drastic remedy, it is not clear
how Harvey was prejudiced by the admission of the entire recorded statement. The jury
acquitted Harvey of the § 922(a)(6) charge related to the purchase of the Smith &
Wesson. There is little reason to think that statements about the recovery of the Smith &
Wesson, and how it was involved in a shooting, led the jury to convict Harvey for his
false statement related to the multiple purchases at Costello’s while acquitting him of the
charge related to the purchase of the Smith & Wesson. And the circumstances
surrounding the recovery of the HiPoint—it was found in an abandoned building and did
not result in any charges under § 922(a)(6)—were not such that the prejudice resulting
from the statement referring to the HiPoint “substantially outweighed” the probative value
of the entire recording. See Fed. R. Evid. 403.

A district court enjoys “very broad discretion” in determining whether the
prejudicial danger of evidence substantially outweighs its probative value. United States
v. Guthrie, 557 F.3d 243, 251 (6th Cir. 2008). Even if it was slightly cumulative of the
ATF agents’ testimony, the audio recording of the second interview was highly probative
of the charged § 922(a)(6) offenses and included exculpatory statements that defense
counsel wanted admitted in the first place. For all of these reasons, the district court did
not abuse its discretion in admitting the previously excluded evidence.

C.

The district court also properly instructed the jury. Because Harvey did not object
to the jury instructions at trial, review is for plain error. See United States v. Vasquez, 560
F.3d 461, 470 (6th Cir. 2009). Harvey argues that the court erred in two of its instructions
to the jury, first on the Government’s burden of proof, and second on the difference
between motive and intent. Neither instruction was improper, much less plain error.
 No. 09-4261 United States v. Harvey Page 9

On the Government’s burden of proof, the court stated:

Although the government is required to prove the defendant guilty beyond
a reasonable doubt, the government is not required to present all possible
evidence related to the case or to produce all possible witnesses who may
have some knowledge about the facts of the case.

This instruction—drawn directly from the Third Circuit’s Model Jury Instruction
3.05—was a correct statement of the law. See United States v. Balark, 412 F. App’x 810,
818 (6th Cir. 2011). The Government requested this instruction because it perceived
itself as “hamstrung” by the district court’s evidentiary rulings and was anxious to avoid
misleading the jury into thinking the prosecutor had intentionally concealed Harvey’s
recorded statement. Thus, the instruction was proper because it cured any impression that
the Government was attempting to hide evidence.

A jury instruction that accurately reflects the governing law is not reversible error
unless the instruction is “confusing, misleading, or prejudicial.” Guthrie, 557 F.3d at 252
(internal quotation marks omitted). Contrary to Harvey’s suggestion, the instruction did
not imply that the Government had other evidence it chose not to bring in this case. Even
if it did, that implication did not prejudice Harvey because elsewhere the court instructed
the jurors that they “must make [their] decision based only on the evidence that you saw
and heard here in court.” The court repeated this instruction a second time, and also told
the jury that basing the verdict on anything but the evidence presented at trial would
violate their duty as jurors. Jurors are presumed to follow instructions, United States v.
Neuhausser, 241 F.3d 460, 469 (6th Cir. 2001), and Harvey offers nothing to rebut the
presumption that the jury followed this instruction in reaching its guilty verdict. In any
event, the instruction was certainly not plain error.

As to motive and intent, the court instructed the jury:

Intent and motive are different concepts and should never be confused.
Motive is what prompts a person to act or fail to act. Proof of motive does
not establish guilt, nor does want of proof of motive establish that the
defendant is innocent. Intent refers only to the state of mind with which
the act is done or omitted.
 No. 09-4261 United States v. Harvey Page 10

It is not clear from the record why the Government requested this instruction, or why the
district court agreed to it. Instructions on motive are often used to underscore its
immateriality to proof of the defendant’s guilt, but it is not clear how the distinction aided
the Government in this case. If anything, the distinction helped Harvey by eliminating
a category of evidence the jury might otherwise have used—mistakenly—to convict him.
Indeed, defense counsel explicitly agreed to this instruction. In any event, the instruction
accurately states the difference between motive and intent, and there is nothing
misleading about pointing this out in a criminal trial for an offense that requires proof of
one but not the other.

Harvey can point to no way in which he was prejudiced by making the distinction
explicit. Instead, the instruction, far from being misleading, clarified what was necessary
and sufficient for the jury to convict him. The court also instructed the jury on the
elements of the offense and the required mental state—that Harvey knew the statement
was false. Even if the distinction between motive and intent had the potential to create
some confusion, the instruction was certainly not plain error.

D.

Harvey also challenges the district court’s response to the jury’s factual questions
during deliberations. The court summarized the questions from the jury as follows:

[The jurors] want to hear the tape recording again, they want to have the
dates that the guns were confiscated, and Officer Drexelius—they said
they wanted officer D’s testimony about Agent Miller and first interview,
whether notes were taken and when money was exchanged.

The court responded to the jury’s questions by reading back discrete portions of the
record. But before the court did so, it gave the following cautionary instruction:

Another part of your job as jurors is to decide how credible and
believable each witness was. This is your job and not mine. It’s up to you
to decide if a witness’s testimony was believable and how much weight
you think it deserves.
 No. 09-4261 United States v. Harvey Page 11

You are free to believe everything a witness said or only part of it
or none of it at all, but you should act reasonably and carefully in making
these decisions.
Your collective recollection of a particular witnesses’s testimony
controls. You should follow the instructions as previously given to you
with regard to weighing and evaluating all the evidence. Just because the
Court is responding to these particular questions with these particular
pieces of testimony does not mean that you should give it any more or less
weight than you believe it deserves.

The court then read portions of the testimony back to the jurors in response to
their questions. The court read Officer David Gregory’s testimony that he recovered the
Intratec 9 mm in December 2007, Detective Bemmes’ testimony that he recovered the
Smith & Wesson on July 10, 2008, and Officer Jason Rees’ testimony that he recovered
the Taurus on August 24, 2007. The court then read Officer Drexelius’ testimony about
whether notes were taken during the agents’ interview with Harvey, and lastly read Agent
Miller’s testimony that Harvey told him Perkins gave him $340 for the Taurus “when they
left” Costello’s.

The district court’s response was not an abuse of discretion. The court did not
paraphrase the record or inject its own view of the testimony into its response. The court
conferred with the parties as to whether the selected portions of the record were
responsive to the jury’s questions, and was careful to provide enough testimony to place
the responsive portions in context. Defense counsel agreed that the selected testimony
was responsive, and conceded that the dates the guns were recovered and whether the
agents took notes were not disputed. As to the timing of the exchange of $340 for the
Taurus, the court’s cautionary instruction mitigated any indication that the jurors should
place more weight on Agent Miller’s testimony merely because the court read it back to
them. The jurors presumably followed this instruction. See Neuhausser, 241 F.3d at 469.
Because the court read only those portions of the record responsive to the questions and
refocused the jury on its recollection of the evidence as a whole, there was no abuse of
discretion. See United States v. Davis, 490 F.3d 541, 548 (6th Cir. 2007).
 No. 09-4261 United States v. Harvey Page 12

We caution that reading testimony to a jury during its deliberations is not always
the better response when the jury’s questions are factual rather than legal in nature. We
have previously identified two “inherent dangers” in this practice: first, that the jury may
give undue emphasis to such testimony, and second, that the testimony may be taken out
of context. United States v. Padin, 787 F.2d 1071, 1076 (6th Cir. 1986). These concerns
are most acute where the trial judge’s response risks usurping the jury’s factfinding role
as to the subject matter of the question, such as where the question is phrased in very
general terms, involves disputed facts, or is obviously related to a credibility
determination. And “these concerns are escalated after the jury ha[s] reported its inability
to arrive at a verdict.” Id. at 1077 (citing Henry v. United States, 204 F.2d 817 (6th Cir.
1953)). In these situations, it will often be preferable to respond by instructing the jury
to rely on its collective recollection of the testimony. Such a response “carefully
preserve[s] the province of the jury while minimizing any prejudice to the defense or the
prosecution.” United States v. McClendon, 362 F. App’x 475, 483 (6th Cir. 2010)
(internal quotation marks omitted).

But in other situations, like this one, reading portions of the record is an
appropriate exercise of the trial court’s discretion. The “inherent dangers” are minimized
where the jury’s factual questions are very specific and definitive answers can be easily
located in the record, such as questions about specific dates and times where such facts
are not disputed. In these situations, reading testimony to the jury facilitates rather than
usurps the jury’s factfinding role, and does no more to emphasize a particular piece of
testimony than the jury has already done in framing the question. And the dangers are
further minimized where, as here, the trial court takes precautionary measures to preserve
the context of the testimony and lessen the risk of undue emphasis, such as involving the
parties in crafting a response and issuing a supplemental instruction that urges the jury
to rely primarily on its collective memory. Thus, under the circumstances here presented,
there was no abuse of discretion.
 No. 09-4261 United States v. Harvey Page 13

E.

Finally, the sentencing enhancement was proper. The presentence report
recommended a four-level enhancement because Harvey had reason to believe a firearm
would be used in connection with another felony offense. See U.S.S.G. § 2K2.1(b)(6).
The relevant guideline provides:

If the defendant used or possessed any firearm or ammunition in
connection with another felony offense; or possessed or transferred any
firearm or ammunition with knowledge, intent, or reason to believe that
it would be used or possessed in connection with another felony offense,
increase by 4 levels.

Id. The district court agreed with the recommendation, finding that “[Harvey] knew the
individuals with whom he was dealing and knew that the firearms would be used by those
who were engaged in drug trafficking.”

That finding is not clearly erroneous. The nature of Harvey’s relationship with
Perkins and Suki, together with the trial testimony, support the district court’s inference
that Harvey transferred a firearm with “reason to believe” that it would be used or
possessed in connection with drug trafficking. The district court found that by Harvey’s
own admissions, Perkins and Suki were like brothers to him. Harvey also admitted that
he saw Suki with the guns while Suki was selling crack cocaine, that he knew Suki had
sold two of the guns to Mitchell (another drug trafficker who ended up with guns Harvey
had purchased), and that Mitchell was one of “Suki’s boys.” From this evidence, the
court could infer that Harvey had “reason to believe” his guns would be used “in
connection with” another felony offense—i.e., drug trafficking. See U.S.S.G.
§ 2K2.1(b)(6).

To be sure, the fact that Harvey saw Suki using the guns while selling crack
cocaine—sometime after the transfer—does not by itself establish that, at the time of the
transfer, Harvey had “reason to believe” the guns would be used in drug trafficking. But
the use of a firearm during a drug deal is certainly a foreseeable result of transferring that
firearm to a known drug dealer. And it is not unreasonable to infer that, if someone is like
 No. 09-4261 United States v. Harvey Page 14

a brother to you, you will be aware that he engages in drug trafficking. In affirming a
§ 2K2.1(b)(6) enhancement in a similar case, the Seventh Circuit held that the defendant
had reason to believe the firearm would be used in a felony because the transferee “was
a convicted felon, and had done drugs with [the defendant] and committed acts of
violence in his presence.” United States v. Mahalik, 498 F.3d 475, 480 (7th Cir. 2007).
The Third Circuit drew a similar inference from the defendant’s knowledge that the
transferee was a drug dealer. United States v. Dupree, 388 F. App’x 164, 168 (3d Cir.
2010). Here, although an inference is required to find that Harvey had “reason to believe”
Suki and Mitchell planned to use the guns in drug trafficking at the time Harvey
purchased them, that is a fair inference from the record.

The required nexus between the transfer of the firearm and an independent felony
offense was established by testimony that at least one of the guns had been “used” in drug
trafficking. The guideline does not require the independent felony to be committed by
the defendant. United States v. Richardson, 510 F.3d 622, 629 (6th Cir. 2007)
(McKeague, J., concurring). Instead, the enhancement applies on its face if Harvey had
reason to believe that the firearm would be used “in connection with” another felony,
regardless of who committed that felony. The application notes to the guideline support
this point. The enhancement applies “if the firearm . . . facilitated, or had the potential
of facilitating, another felony offense.” U.S.S.G. § 2K2.1(b)(6), cmt. 14(A) (emphasis
added). The district court’s finding that Harvey “knew that the firearms would be used
by those who were engaged in drug trafficking,” though brief, amounts to a finding that
the guns at least “had the potential of facilitating” another felony offense. Id.

III.

The judgment of the district court is affirmed.