NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 19-2183 __________

UNITED STATES OF AMERICA

v.

LOUIS HILL, a/k/a Lou, Appellant __________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 2:18-cr-00191-001) Hon. Cynthia M. Rufe, United States District Judge __________

Submitted Under Third Circuit L.A.R. 34.1(a) on July 1, 2020

Before: KRAUSE and PHIPPS, Circuit Judges, and BEETLESTONE,* District Judge.

(Filed: July 2, 2020) __________

OPINION† __________

* Honorable Wendy Beetlestone, United States District Court for the Eastern District of Pennsylvania, sitting by designation. † This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. KRAUSE, Circuit Judge.

Louis Hill pleaded guilty to one count of unlicensed firearms dealing and multiple

counts of being a felon in possession of a firearm. He appeals his sentence, arguing the

District Court erred in applying the gun trafficking enhancement under U.S.S.G.

§ 2K2.1(b)(5). We discern no error and so will affirm.

DISCUSSION1

The Sentencing Guidelines call for a four-level increase in the offense level of any

defendant who “engaged in the trafficking of firearms.” U.S.S.G. § 2K2.1(b)(5). For the

enhancement to apply, the defendant must have “kn[own] or had reason to believe” that

his conduct “would result in the transport, transfer, or disposal of a firearm to an individ-

ual . . . whose possession or receipt of the firearm would be unlawful.” U.S.S.G. § 2K2.1

cmt. n.13(A)(ii). And an individual cannot “[]lawful[ly]” receive a firearm if “at the time

of the offense [he] was under a criminal justice sentence, including probation.” Id. cmt.

n.13(B).

Here, the District Court found Hill knew or had reason to know that the confidential

informant to whom he sold seven firearms was under a probationary sentence at the time.2

We review that factual finding under the “deferential” clear error standard. See United

States v. Richards,

, 218–23 (3d Cir. 2012). Because a review of the record

leaves us with no “definite and firm conviction that a mistake has been committed,” United

1 As we write only for the parties, who are familiar with the background of this case, we need not reiterate the factual or procedural history. 2 Although the District Court also found Hill knew or had reason to know that the confidential informant “ha[d] a prior conviction for a crime of violence,” U.S.S.G. § 2K2.1 cmt. n.13(B), we need not address that alternative ground for the enhancement.

2 States v. Foster,

(3d Cir. 2018) (citation omitted), we have no basis to

second-guess the Court’s conclusion.

That conclusion finds substantial support in the record. There is no question the

informant to whom Hill sold firearms was on probation during the relevant period, and that

informant and Hill had many degrees of connection: They grew up and lived in the same

neighborhood for many years; had been friends “since at least 2009,” App. 29; attended

high school together; “commit[ed] crimes together” in their younger years, App. 31; en-

gaged in frank discussions about criminal activities; and, during the relevant period, had

extensive electronic and face-to-face communications while planning and executing seven

firearm transactions. Most relevant, during a recorded telephone call between the second

and third transactions, the informant told Hill he could not talk because he was “at the PO

office,” Appellant’s Br. 15 n.3 (quoting the Presentence Report), using an abbreviation that

the parties agree refers to the probation office. Given the “substantial relationship” be-

tween Hill and the informant, App. 36, and the informant’s plain statement to Hill during

the call, the District Court found that Hill knew or had reason to know the informant was

on probation. In making that factual finding regarding Hill’s mental state, the Court ap-

propriately relied on circumstantial evidence, see United States v. Douglas,

(3d Cir. 2018), and drew reasonable inferences based on that evidence.

Contrary to Hill’s argument, we do not fault the District Court on this record for

“fail[ing] . . . to rule out any possible innocent inferences,” Appellant’s Br. 8, before mak-

ing its finding. True, where “the evidence [i]s ‘in equipoise,’ the government ha[s] failed

to meet its burden” with respect to the imposition of a sentencing enhancement. United

States v. Cicirello,

(3d Cir. 2002) (citation omitted). That principle

follows from the Government’s burden to prove the appropriateness of an enhancement 3 “by a preponderance of the evidence.”

But that burden was not met in Cicirello because

“there [we]re no facts from which Cicirello’s knowledge, intent or belief at the relevant

time c[ould] be gleaned.”

; see

(explaining that the record revealed

“nothing as to where, how, or to whom Cicirello sold the guns”). The same is true for the

other decisions Hill cites. See United States v. Moody,

(7th Cir. 2019)

(involving a defendant who sold guns to wholly “anonymous buyers”); United States v.

Askew,

(11th Cir. 1999) (involving a defendant who knew neither to

whom the guns were sold nor “any of the circumstances surrounding the sale”). Con-

versely, where the record contains “facts from which an inference of . . . knowledge or

reason to believe can be drawn,” a district court may draw that inference and apply a sec-

tion 2K2.1(b)(5) enhancement regardless whether the defendant is able to identify a more

“innocent” reading of those facts. Cicirello,

& n.5 (collecting cases); see

Moody,

(“Moody’s case . . . stands in contrast to those in which the seller

knew something more about the buyers than that they were in the market for a gun.” (em-

phasis added)); Askew,

(contrasting cases in which “the defendants had

personal contact with the transferees,” making it “logical for the sentencing court to infer

a certain level of knowledge about their buyers[]”). And in such cases, a district court is

not required to sua sponte identify “innocent possibilities” not raised by the defendant or

reasonably inferred from the facts in the record.

Here, the evidence was not “in equipoise,” Cicirello,

(citation omit-

ted), and the District Court had ample factual material from which to conclude the enhance-

ment was appropriate. Cicirello therefore does not supply the rule of decision. And while

Hill has identified other plausible inferences the District Court might have been drawn, we

are faced with “two permissible views of the evidence” and an incontestable conclusion 4 flowing therefrom: that the District Court’s “choice between them cannot be clearly erro-

neous,” Anderson v. City of Bessemer City,

(1985).

CONCLUSION

For the foregoing reasons, we will affirm the District Court’s judgment.

5