NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-2167 _____________

UNITED STATES OF AMERICA

v.

BEN MCCORMACK, Appellant _____________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 4-16-cr-00173-001) District Judge: Matthew W. Brann ______________

Argued: March 23, 2021 ______________

Before: HARDIMAN, GREENAWAY, JR., and BIBAS, Circuit Judges

(Opinion Filed: May 10, 2021)

Heidi Freese, Federal Public Defender Quin M. Sorenson, Assistant Federal Public Defender [ARGUED] Office of the Federal Public Defender, Middle District of Pennsylvania 100 Chestnut Street Suite 306 Harrisburg, PA 17101 Attorneys for Appellant

Bruce D. Bandler, Acting United States Attorney George J. Rocktashel, Assistant United States Attorney [ARGUED] Office of the United States Attorney, Middle District of Pennsylvania 240 West Third Street Suite 316 Williamsport, PA 17701 Attorneys for Appellee

______________

OPINION* ______________

GREENAWAY, JR., Circuit Judge.

Ben McCormack and accomplices robbed three stores that sell guns. McCormack

later pleaded guilty to two federal offenses. Prior to sentencing, he objected to the

application of a four-level increase to his Offense Level pursuant to U.S. Sentencing

Guideline § 2K2.1(b)(5). The District Court purported to resolve McCormack’s

objection and found that the enhancement applied. However, when the District Court

resolved the objection, it cited to and quoted from U.S. Sentencing Guideline

§ 2K2.1(b)(6)(B). Because we find that the District Court committed a procedural error,

we will vacate McCormack’s sentence and remand to the District Court for resentencing.

I. Background

Ben McCormack and several accomplices stole nearly 100 weapons from three

businesses in Pennsylvania. McCormack sold many of the stolen firearms for cash. He

also contacted an individual known to law enforcement to be involved in drug trafficking

to arrange the sale of some of the firearms. A day after his third heist, McCormack was

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2 arrested. His home and vehicle were searched. Burglary tools and stolen firearms from

three Federal Firearm Licensees (“FFLs”) were recovered.

On January 5, 2018, McCormack entered a plea of guilty to one count of

conspiracy,

, to steal firearms from a FFL, and Possess and Receive

Stolen Firearms Shipped in Interstate Commerce,

(j), (u) (Count 1); and

one count of Theft of Firearms From a FFL,

(u) (Count 2).

The U.S. Probation Office prepared a Presentence Investigation Report (“PSR”) in

which it calculated McCormack’s Total Offense Level as thirty-five. This was based on

a Base Offense Level of twenty-two, a four-level increase pursuant to § 2K2.1(b)(5); a

four-level increase pursuant to § 2K2.1(b)(6)(B); and two other increases. McCormack

objected to the application of the enhancement pursuant to § 2K2.1(b)(5), arguing that

there was nothing in the record supporting application of the enhancement. The

Probation Office, nevertheless, maintained its position that § 2K2.1(b)(5) applied, issuing

a revised PSR with a Total Offense Level of thirty-four.1

In a Sentencing Memorandum submitted to the District Court, McCormack

objected to the application of § 2K2.1(b)(5) for the trafficking of firearms, claiming that

nothing “in the signed and filed plea agreement, the Government’s Memorandum of

Offense Conduct . . . , and the statement of offense conduct read into the record at the

change of plea hearing on January 5, 2018,” supported the application of the

1 When calculating McCormack’s offense level in the revised PSR, the Probation Office applied a provision of § 2K2.1 that limits the cumulative offense level from the application of subsections § 2K2.1(b)(1) through (b)(4) to twenty-nine. The Probation Office did not apply this provision when it prepared McCormack’s first PSR. 3 enhancement. Sentencing Memorandum 6. More specifically, McCormack argued that

while the Government may have known that one of the individuals he sold firearms to

was a drug trafficker, McCormack did not know or have reason to believe that that

individual’s possession of the guns would be unlawful or that he would dispose of them

unlawfully.

McCormack appeared for sentencing in the District Court, and the parties argued

the applicability of § 2K2.1(b)(5). McCormack’s counsel argued that based on the record

before the Court, the Government failed to meet its burden of showing that McCormack

“knew or had reason to believe that the conduct would result in the transport or disposal

of firearms to an individual whose possession would be unlawful.” J.A. 71. The

Government responded with facts it believed supported the application of the

enhancement including: (1) a reference within the Revised PSR to the transfer of guns to

an individual known to the government to be involved with drug trafficking,

(2) McCormack’s meeting with an intermediary to arrange the transfer of firearms,

(3) McCormack’s transfer of guns to one of his accomplices as payment,

(4) McCormack’s knowledge, based on his own criminal history, that the individuals

receiving the weapons would be in receipt of and possession of stolen property, and

(5) the number of transferred firearms. The Government summed up by arguing that the

“ultimate recipients” of the weapons “were individuals who were involved in criminal

activity.” J.A. 71–72.

The District Court overruled McCormack’s objection and found that § 2K2.1(b)(5)

applied. The District Court stated:

4 United States Sentencing Guideline 2K2.1(b)(6)(B) prescribes a four-level enhancement if the defendant, quote, 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, end quote.

The record here supports the application of this enhancement, including the quantity of stolen firearms sold, multiple sales to the same individual, and that this individual has been known to engage in drug trafficking.

So I have now resolved all objections to the presentence report.

J.A. 72.

The District Court determined that McCormack had a Total Offense Level of

thirty and a Criminal History Category of III, which resulted in a Sentencing Guidelines

Advisory Range of 121 to 151 months of imprisonment. The District Court sentenced

McCormack to a term of imprisonment of 121 months. This timely appeal followed.

II. Discussion2

McCormack appeals the application of § 2K2.1(b)(5) on the same grounds he

raised in the District Court. Specifically, he contends that he “never admitted or even

suggested that he knew or had any reason to know that [the individuals he sold the stolen

firearms to] would use them to engage in unlawful activity.” Appellant’s Br. at 6. Thus,

with a record lacking evidence of McCormack’s “knowledge that [the firearms] would be

used illegally” the Government could not and did not meet its burden to prove that §

2K2.1(b)(5) applied. Id.

2 The District Court had jurisdiction pursuant to

. We have jurisdiction under

. 5 Our review of a District Court’s sentence proceeds in two stages, and we apply an

abuse of discretion standard. Gall v. United States,

(2007). First, we

consider “whether the Court committed a significant procedural error, such as improperly

calculating the Guidelines range.” United States v. Zabielski,

(3d Cir.

2013). “If the district court has committed procedural error, ‘we will generally remand

the case for resentencing, without going any further.’” United States v. Freeman,

(3d Cir. 2014) (quoting United States v. Begin,

(3d Cir.

2012). Second, if the District Court’s sentence is procedurally sound, we “consider the

substantive reasonableness of the sentence imposed . . . . tak[ing] into account the totality

of the circumstances, including the extent of any variance from the Guidelines range.”

Gall,

.

Here, the District Court committed procedural error. The District Court cited to

and quoted from § 2K2.1(b)(6)(B), suggesting that it was addressing an objection to the

application of that enhancement. Compare J.A. 72, with U.S. Sent’g Guidelines Manual

§ 2K2.1(b)(6)(B) (U.S. Sent’g Comm’n 2018). McCormack, of course, had not objected

to the application of § 2K2.1(b)(6)(B), but had objected to the application of

§ 2K2.1(b)(5).

The District Court’s cursory analysis fails to clarify whether the reference to the

wrong enhancement was simply a mistake or if the Court had § 2K2.1(b)(6)(B) in mind

when resolving McCormack’s objection. The facts that the District Court listed—the

quantity of firearms, multiple sales to one individual, and that an individual who received

6 the weapons was known to be a drug trafficker3—do not, without further explication by

the District Court, clarify whether the District Court was analyzing the application of

§ 2K2.1(b)(5) or § 2K2.1(b)(6). Section 2K2.1(b)(5) applies when, among other things,

the defendant “knew or had reason to believe that [his] conduct would result in the . . .

transfer . . . of a firearm to an individual . . . who intended to use or dispose of the firearm

unlawfully,” U.S. Sent’g Guidelines Manual § 2K2.1 cmt. n.13(A)(ii), and

§ 2K2.1(b)(6)(B) applies when the defendant “transferred any firearm . . . with

knowledge, intent, or reason to believe that it would be used or possessed in connection

with another felony offense.” Thus, the three-interrelated facts the District Court

mentioned could, with several inferences, support the conclusions that (1) McCormack

transferred the firearms to someone McCormack knew or had reason to believe was

involved in drug trafficking and intended to use the guns unlawfully, satisfying

§ 2K2.1(b)(5), or (2) that McCormack had knowledge that or reason to believe that

someone he transferred the weapons to would use them in connection with drug

trafficking felonies, satisfying § 2K2.1(b)(6)(B). See, e.g., United States v. Cicirello,

, 141–3 (3d Cir. 2002) (considering the application of a prior version of

3 We note that the District Court’s statement regarding this individual does not resolve McCormack’s objection. The basis of McCormack’s objection, in part, was that the Government had not introduced sufficient evidence to prove that McCormack had the requisite knowledge regarding this individual being involved with drug trafficking. Simply stating that “this individual has been known to engage in drug trafficking” does not address whether McCormack “knew or had reason to believe” that the individual was engaged in drug trafficking. See U.S. Sent’g Guidelines Manual § 2K2.1 cmt. n.13(A)(ii); see also Fed. R. Crim. P. 32(i)(3)(B). 7 § 2K2.1(b)(6)); United States v. Asante,

(11th Cir. 2015) (considering

the application of § 2K2.1(b)(5)).

The record before us does not allow us to conclude that the District Court’s

reference to § 2K2.1(b)(6)(B) “was merely inadvertent.” Appellee’s Letter Br. 1–2.

Ultimately, because we cannot discern whether the District Court addressed and resolved

the objection McCormack raised, we find that the District Court erred.

III. Conclusion

As a result of the District Court’s procedural error, we will vacate McCormack’s

sentence and remand for resentencing.4

4 Although both parties urge us to reach the merits of McCormack’s appeal, we decline to do so given the procedural error. See United States v. Wright,

(3d Cir. 2011) (“If we find procedural error at any step [of the sentencing process], we will generally ‘remand the case for re-sentencing, without going any further.’”) (quoting United States v. Merced,

(3d Cir. 2010)). 8