[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14010 ELEVENTH CIRCUIT
APRIL 11, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 5:11-cr-00018-RS-LB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD SAMUEL CRUDGINGTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(April 11, 2012)
Before BARKETT, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Richard Samuel Crudgington was sentenced to thirty-months imprisonment
after pleading guilty to one count of dealing in firearms without a license, in
violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D), and two counts of
unlawfully selling a firearm to a convicted felon, in violation of 18 U.S.C.
§§ 922(a)(2) and 922(d)(1). In the factual statement provided in support of his
plea, Crudgington admitted that he was advertising firearms for sale in local
papers; that the government had seized 147 firearms from his residence, nearly all
of which were located in gun racks with price tags attached to them; that he was
obtaining firearms from licensed dealers in other states and having them shipped
to a local dealer, who then transferred them to him; that there were twenty-two
firearms which he was still supposed to pick up from one local dealer; that he had
sold seven firearms to undercover government agents, including to agents he
believed to be convicted felons; and that these transactions had occurred at his
residence.
On appeal, Crudgington claims that the district court contravened
Application Note 5 to § 2K2.1(b)(1) of the Sentencing Guidelines when the court
calculated his offense level by counting the 100-plus firearms seized from his
residence. This Note states that when “calculating the number of firearms under
[§ 2K2.1(b)(1)], count only those firearms that were unlawfully sought to be
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obtained, unlawfully possessed, or unlawfully distributed, including any firearm
that a defendant obtained or attempted to obtain by making a false statement to a
licensed dealer.” U.S.S.G. § 2K2.1 cmt. n.5 Crudgington argues that because he
did not “unlawfully” possess the 100-plus firearms and because it was never
alleged that he either unlawfully sought to obtain them or unlawfully distributed
those particular firearms, the district court could not properly count them for
sentencing purposes. Crudgington further notes that had the 100-plus firearms not
been counted, his offense level would have dropped six levels.1 Upon review of
the record and consideration of the parties’ briefs, we affirm his sentence.
We accept the district court’s factual findings at sentencing unless clearly
erroneous, and we review the application of the Sentencing Guidelines to the facts
de novo. United States v. Caraballo, 595 F.3d 1214, 1230 (11th Cir. 2010). We
also review de novo the district court’s legal interpretation of the Sentencing
Guidelines. United States v. Fulford, 662 F.3d 1174, 1177 (11th Cir. 2011). To
properly interpret the Guidelines, the language of the Guidelines must be given its
plain and ordinary meaning. Id. In addition, the Guidelines commentary “is
authoritative unless it violates the Constitution or a federal statute, or is
1
Section 2K2.1(b)(1) provides that if the offense involves between three and seven
firearms, a court should add two levels to the base offense level, but if the offense involves
100–199 firearms, the court should add eight levels. § 2K2.1(b)(1)(A), (D).
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inconsistent with, or a plainly erroneous reading of, that guideline.” Id. (quotation
marks omitted).
As an initial matter, we dismiss the government’s suggestion that
Crudgington failed to preserve the argument he advances on appeal. We hold that
the objection was preserved as a part of Crudgington’s claim that the additional
firearms should not have been counted based on the plain language of the
Guidelines.
However, Crudgington’s argument fails on the merits. We do not dispute
Crudgington’s contention that the plain language of Application Note 5
exhaustively specifies the firearms that may be counted for purposes of
§ 2K2.1(b)(1). But his argument for relief hinges further on the premise that,
while he may have been actively trying to resell the 100-plus firearms as an
unlawful firearms dealer, he did not “unlawfully” possess them. We cannot accept
this premise.
Crudgington pleaded guilty to “knowingly engag[ing] in business as a
dealer in firearms without being licensed to do so,” in violation of 18 U.S.C.
§ 921(a)(1)(A). In effect, Crudgington admitted he was not simply selling an
occasional firearm “for the enhancement of a personal collection or for a hobby,”
but rather that he was unlawfully “dealing in firearms as a regular course of trade
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or business with the principal objective of livelihood and profit through the
repetitive purchase and resale of firearms.” 18 U.S.C. § 921(a)(21)(C) (defining
what it means for a firearms dealer to be “engaged in the business”). Here,
Crudgington makes no claim that the 100-plus firearms were separate from the
illegal firearms business he was operating. Indeed, nearly all of the firearms in
question were directly linked to this illegal business, as evidenced by the fact that
they had price tags and some had already been advertised for sale in local papers.
Thus, unlike the federally-licensed firearms dealer in United States v. Brickner,
No. 96-3783, 1997 WL 159331 (6th Cir. April 3, 1997), Crudgington cannot
plausibly assert that the firearms yet to be sold illegally were being used in a
purely lawful manner. Rather, as the essential component of his illicit firearms
business, it is clear that the firearms in question were being used by Crudgington
unlawfully under 18 U.S.C. § 922(a)(1)(A). For this reason, we hold that the
district court acted consistently with the commentary to § 2K2.1(b)(1) when it
counted the firearms seized from Crudgington’s residence in calculating his
sentence.
AFFIRMED.
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