FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 25, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1322
(D.C. No. 1:17-CR-00339-PAB-3)
KENDALL CROCKETT, a/k/a Grizzle, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
_________________________________
In August 2017, Kendall Crockett and three others stole 56 firearms from a
Cabela’s sporting goods store in Thornton, Colorado. After the burglary, he and the other
thieves distributed the firearms to members of their “Bloods” gang. Mr. Crockett was
charged with, and pled guilty to, one count of theft of firearms from a federal firearm
licensee’s inventory and one count of possession of stolen firearms.
At sentencing, the district court increased Mr. Crockett’s base offense level under
United States Sentencing Guideline (“U.S.S.G.” or “Guidelines”) § 2K2.1(b)(5), which
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
instructs the sentencing court to apply a four-level increase if the defendant “engaged in
the trafficking of firearms.” This enhancement applies if the defendant transferred two or
more firearms to an individual and “knew or had reason to believe that” (1) the
recipient’s “possession or receipt of the firearm would be unlawful,” or (2) the recipient
“intended to use or dispose of the firearm unlawfully.” U.S.S.G. § 2K2.1, cmt. n.13(A).
The district court calculated a Guidelines range of 87 to 108 months and sentenced Mr.
Crockett to 80 months in prison. Mr. Crockett now challenges the procedural
reasonableness of his sentence, arguing there was not sufficient evidence to justify the
four-level increase.
We hold that the district court did not err in increasing Mr. Crockett’s base offense
level under U.S.S.G. § 2K2.1(b)(5). Exercising jurisdiction under 28 U.S.C. § 1291 and
18 U.S.C. § 3742(a), we affirm.
I. BACKGROUND
Mr. Crockett is a member of the Bloods gang. In August 2017, his fellow gang
members stole 18 firearms from a Cabela’s store in Lone Tree, Colorado and distributed
them to members of the gang. Later that month, Mr. Crockett and three other gang
members stole 56 firearms—primarily handguns—from a second Cabela’s store in
Thornton, Colorado. The three gang members drove a stolen Jeep through the front of
the store and, after gathering the guns, fled. Mr. Crockett, who acted as a lookout and
getaway driver, was waiting nearby with a second car. When the other three departed the
store, they joined him and drove from the scene.
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After the burglary, Mr. Crockett and his accomplices distributed the stolen
firearms to other members of the Bloods gang. One of these guns was later used in a
menacing case, in which an individual brandished the firearm at a tow truck driver.
A grand jury indicted Mr. Crockett for two counts of stealing firearms from a
federally licensed dealer, in violation of 18 U.S.C. § 922(u), and two counts of possession
of stolen firearms, in violation of 18 U.S.C. § 922(j). He pled guilty to one count of each
offense. His written plea agreement contained a stipulation of facts, which stated that
“[Mr. Crockett and the other robbery participants] distributed the stolen firearms to
fellow Bloods gang members, including members that the defendants knew were
prohibited from possessing firearms.” ROA, Vol. I at 27. It also contained an advisory
Guidelines sentence calculation, which included “a 4-level increase [under U.S.S.G.
§ 2K2.1(b)(5)] because the defendant trafficked in firearms.” Id. at 28.
Following the plea, the United States Probation Office prepared a Presentence
Investigation Report (“PSR”). The PSR applied § 2K2.1(b)(5)’s four-level increase and
calculated a Guidelines imprisonment range of 87 to 108 months. Mr. Crockett objected,
arguing that the Government had not “establish[ed] that he was aware that the firearms
were being given to an individual whose possession would be unlawful as defined in the
[commentary to § 2K2.1(b)(5)].” ROA, Vol. I at 51. He thus argued that the four-level
enhancement should not apply.
At sentencing, the district court overruled Mr. Crockett’s objection. Although the
court found “no evidence that Mr. Crockett was involved in distributing . . . firearms” to
individuals he “knew were prohibited from possessing firearms,” ROA, Vol. III at 14, it
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observed that “the Bloods are . . . a well-known gang that’s involved in a lot of criminal
activity” and that “common sense would suggest . . . that defendant knew or should have
known that those individuals . . . intended to use or dispose of the firearms unlawfully,”
id. at 15. It thus applied § 2K2.1(b)(5), concluding that the Government carried its
burden of proof “by showing that the defendant knew or had reason to believe that his
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.” Id.
The district court sentenced Mr. Crockett to 80 months in prison.1 Mr. Crockett
challenges that sentence, arguing that the district court erred in applying a four-level
increase under § 2K2.1(b)(5).
II. DISCUSSION
A. Legal Background
1. Standard of Review
We review criminal sentences for reasonableness, applying an abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 56 (2007). This review “includes both a
procedural component, encompassing the method by which a sentence was calculated, as
well as a substantive component, which relates to the length of the resulting sentence.”
United States v. Ortiz-Lazaro, 884 F.3d 1259, 1261 (10th Cir. 2018); see also Gall, 552
U.S. at 49-50.
1
The court granted a downward variance from the Guidelines range of 87 to 108
months because Mr. Crockett had a difficult upbringing, had not previously served time
in prison, and “ha[d] the ability to straighten out.” ROA, Vol. III at 40.
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Mr. Crockett challenges only the procedural reasonableness of his sentence. See
Gall, 552 U.S. at 51 (procedural errors include “failing to calculate (or improperly
calculating) the Guidelines range”). When assessing procedural reasonableness, “[w]e
review de novo any legal questions in a district court’s application of the Guidelines, and
we review any factual findings for clear error, giving due deference to the district court’s
application of the guidelines to the facts.” United States v. Serrato, 742 F.3d 461, 468
(10th Cir. 2014) (quotations omitted).
The district court found that Mr. Crockett had knowledge or reason to believe that
he was distributing weapons to recipients who intended to use or dispose of them
unlawfully. This is a factual determination that we review for clear error. United States
v. Garcia, 635 F.3d 472, 478-79 (10th Cir. 2011) (reviewing for clear error the district
court’s determination of the defendant’s intent under § 2K2.1(b)(5)); United States v.
Juarez, 626 F.3d 246, 252 (5th Cir. 2010) (noting that clear error review applies to
district court’s determination that a defendant had the requisite knowledge to warrant a
§ 2K2.1(b)(5) increase).2 Under clear error review, we “view the evidence and inferences
[drawn] therefrom in the light most favorable to the district court’s determination.”
United States v. Brown, 314 F.3d 1216, 1222 (10th Cir. 2003). “To constitute clear error,
we must be convinced that the sentencing court’s finding is simply not plausible or
permissible in light of the entire record on appeal, remembering that we are not free to
2
The parties agree that clear error review applies. See Aplt. Br. at 1 (stating the
issue on appeal as “[w]hether the district court erred”); Aplee. Br. at 1 (same).
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substitute our judgment for that of the district judge.” United States v. McClatchey, 316
F.3d 1122, 1128 (10th Cir. 2003) (quotations omitted).
2. U.S.S.G. § 2K2.1(b)(5)
U.S.S.G. § 2K2.1(b)(5) provides for a four-level increase in a defendant’s base
offense level “[i]f the defendant engaged in the trafficking of firearms.” The commentary
to this guideline explains:
Subsection (b)(5) applies . . . if 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.
U.S.S.G. § 2K2.1, cmt. n.13(A);3 see United States v. McConnell, 605 F.3d 822, 824
(10th Cir. 2010) (“Commentary to the Guidelines is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of,
that guideline.” (quotations omitted)).
“At sentencing, the government must prove the facts supporting a sentencing
enhancement by a preponderance of the evidence.” Garcia, 635 F.3d at 478. To carry
3
The parties do not dispute that Mr. Crockett satisfied the first requirement, cmt.
n.13(A)(i)(I), by transferring two or more firearms to an individual. Only the second
requirement, cmt. n.13(A)(i)(II), is at issue in this case.
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this burden, it must show that “the existence of a fact is more probable than its
nonexistence.” Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for
S. Cal., 508 U.S. 602, 622 (1993).
B. Analysis
Mr. Crockett argues the district court erred in increasing his base offense level
under § 2K2.1(b)(5). He asserts that “the government did not prove by a preponderance
of the evidence that [he] knew or had reason to believe that his 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.” Aplt. Br. at 2. According to Mr. Crockett, “[t]he
only evidence relied on by the district court to apply the four-level increase was Mr.
Crockett’s stipulation in the plea agreement that he and his codefendants distributed
fifty-six stolen firearms to fellow Bloods gang members.” Id. This stipulation, he
claims, “was insufficient for the court to apply a four-level increase under . . .
§ 2K2.1(b)(5).” Id. at 3.
As discussed above, § 2K2.1(b)(5) applies if the defendant transferred firearms to
an individual and either (1) “knew or had reason to believe that” the recipient’s
“possession or receipt of the firearm would be unlawful,” or (2) “knew or had reason to
believe that” the recipient “intended to use or dispose of the firearm unlawfully.”
U.S.S.G. § 2K2.1 cmt. n.13(A). The district court found that the first criterion was not
satisfied because “the government [could not] prove . . . by a preponderance of the
evidence” that Mr. Crockett distributed the weapons to individuals he “knew were
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prohibited from possessing firearms.” ROA, Vol. III at 14. It thus relied on the second
criterion to apply the enhancement, reasoning:
[I]f you use common sense, . . . the Bloods are . . . a well-
known gang that’s involved in a lot of criminal activity. And
all the participants in the burglary are fellow gang members
and they are distributing to Bloods members . . . all these
brand new firearms, so I think that common sense would
suggest and, in fact, that sustains the government’s burden of
proof that the defendant knew or should have known that
those individuals to whom the firearms were being given to
would—that they intended to use or dispose of the firearms
unlawfully.
Id. at 15.
If Mr. Crockett’s gang were involved in criminal activity, “common sense”
permits an inference that he knew or should have known that the recipients of the guns
intended to use them unlawfully. The district court assumed the gang was involved in
criminal activity without reference to evidence and without explanation of whether or
how judicial notice might apply. We nonetheless affirm because we cannot say the
court’s finding was clearly erroneous in light of the record.
The record shows that in August 2017, members of Mr. Crockett’s Bloods gang
robbed Cabela’s stores in Lone Tree and Thornton, Colorado. In the Lone Tree robbery,
the gang stole 18 firearms, which they distributed to other members of the gang. In the
Thornton robbery, the gang members stole 56 firearms. Mr. Crockett admitted that he
participated in this robbery, that he and the other robbers distributed the stolen firearms to
others in the gang, and that he knew some of recipients were prohibited from possessing
weapons. The guns Mr. Crockett distributed were primarily small, concealable
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handguns. And at least one of the weapons from the Thornton robbery was later
recovered from an individual who brandished the gun at a tow truck driver.
As discussed above, “[t]o constitute clear error, we must be convinced that the
sentencing court’s finding is simply not plausible or permissible in light of the entire
record on appeal.” McClatchey, 316 F.3d at 1128 (quotations omitted). And when
“assessing a defendant’s mental state for the purposes of sentencing, a court may draw
common-sense inferences from the circumstantial evidence.” Garcia, 635 F.3d at 478.
Here, members of a gang robbed two sporting goods stores and stole a large quantity of
guns. They distributed those guns to members of the very gang that performed the
robberies. And at least one of those weapons was later used for an unlawful purpose.
Given these facts, it was not unreasonable for the court to conclude it was more likely
than not that Mr. Crockett knew or should have known that he was distributing firearms
to individuals who intended to use or dispose of them unlawfully. The district court did
not err in increasing Mr. Crockett’s sentence under § 2K2.1(b)(5).
III. CONCLUSION
For the foregoing reasons, we affirm the district court.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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