United States v. Dandre Moody
Opinion
Within two days of helping his codefendants steal more than 100 guns from a train car, Dandre Moody sold 13 of them to anonymous buyers who telephoned him after they "heard about it." He pleaded guilty to possessing a firearm as a felon,
Moody now appeals his sentence. He challenges, for the first time, a four-level guideline enhancement under U.S.S.G. § 2K2.1(b)(5) for trafficking firearms to people he knew (or had reason to know) were unlawful users or possessors. 1
We agree with Moody that the district court plainly erred by imposing this enhancement. Nothing in the record suggests that Moody had reason to believe that his buyers were unlawful gun users or possessors. By finding that Moody had such knowledge, the court plainly crossed the line that separates permissible commonsense inference from impermissible speculation. We therefore vacate the judgment and remand for further sentencing proceedings.
I.
One night in April 2015, Moody drove a train-theft crew to a railyard on the south *428 side of Chicago. There, while part of the crew broke into a parked train car and stole 111 guns, Moody waited, ready to drive away with any merchandise that the crew might retrieve.
Moody's share of the loot was 13 guns. Within two days, according to his uncontradicted testimony at his change-of-plea hearing, he sold them to different anonymous buyers who phoned him after they had "heard about it." Moody was not asked follow-up questions on the record about the nature of "it," and the presentence investigation report did nothing to further clarify what the callers had heard. Of the crew's stolen guns, 33 were recovered before sentencing-17 at crime scenes. The sentencing record does not, however, tie Moody to any of the recovered guns. Moody pleaded guilty to possessing a gun as a felon, possessing a stolen gun, and cargo theft.
Sentencing followed. The district court began the sentencing hearing by confirming that Moody had reviewed the PSR's guidelines calculation (which included the enhancement at issue here, but not any factual detail on that point) with counsel, had filed no objections, and planned to make none. The court calculated an advisory Guidelines range of 121 to 151 months' imprisonment. In doing so, it applied three enhancements from the 2016 Guidelines Manual, including a four-level enhancement pursuant to 2K2.1(b)(5) because the offense involved trafficking in firearms. The court reasoned that this enhancement applied because Moody had sold his share of stolen guns "literally to anyone who called expressing an interest in getting" them, and the court presumed that at least several of these people would use them in future crimes. The court said that this conduct posed a danger to the community because "many [of the guns] have been recovered in Chicago, many of them at crime scenes." It continued:
I know, Mr. Moody, that you don't for a second believe that any of those folks were interested in lawfully possessing a firearm. There is absolutely no question that the people that were seeking to buy those firearms wanted those firearms to support other unlawful activity beyond their possession of the firearms. Whether it was drug trafficking, whether it was violent crime, whether it was burglary, robbery, that's who buys guns that have been stolen off a train.
The court sentenced Moody to a prison term of 93 months, which was below the advisory Guidelines range.
II.
Moody argues that the district court wrongly applied the firearm-trafficking enhancement under U.S.S.G. § 2K2.1(b)(5). He maintains that the government did not provide sufficient evidence that he had reason to believe that 2 or more of the 13 buyers either were legally barred from firearm possession (by virtue of a prior conviction for, say, a crime of violence like aggravated assault, see § 2K2.1 n.13(B) & § 4B1.2(a)(2) ), or would use the guns in other crimes. Based on this record, he contends, someone in his shoes could at most reasonably think only that the callers wished to make an unlawful purchase but not that they were otherwise barred from firearm possession or would use the guns unlawfully.
Before tackling the merits of Moody's argument, we must address a threshold issue: the parties' dispute about whether Moody's failure to object in the district court to this enhancement means that he "waived" or merely "forfeited" this argument. Whether a defendant had reason to know of a gun-buyer's nefarious
*429
purpose is the kind of factual question we review for clear error if the issue is preserved.
United States v. Jemison
,
Here, the better view is that Moody forfeited rather than waived the objection. "The touchstone of waiver is a knowing and intentional decision."
United States v. Jaimes-Jaimes
,
Under the plain-error standard, Moody must show that the error is not subject to reasonable dispute, that it affected his substantial rights, and that it diminished the fairness, integrity, or reputation of the judicial proceedings.
U.S.S.G. § 2K2.1(b)(5) directs a court to increase a defendant's offense level by four for the "trafficking" of firearms. As relevant here, this means that the defendant "knew or had reason to believe" that, for at least two guns, the recipient intended to use the weapon in a further crime or was already a person prohibited, by federal law on specified grounds, from possessing guns. U.S.S.G. § 2K2.1 n.13(A). A "person prohibited" is narrowly defined as someone "whose possession or receipt of the firearm would be unlawful."
Moody attacks as impermissibly speculative the district court's conclusion that he had reason to believe that his buyers were barred from gun possession or that they intended to use the guns in crimes. In his view, the court assumed that the callers had heard about the train theft and were seeking to buy guns that they knew were stolen. And from that premise, the court inferred that the callers planned to use these guns in other crimes, and, further, that Moody had reason to know it. The PSR and sentencing memoranda, meanwhile, offered no substantiation for this chain of inferences.
The government counters that while Moody did not know his buyers' identities, he surely knew that they were in the market for stolen guns. Common sense, the government adds, would say that few, if any, of these 13 anonymous buyers of stolen guns would be permitted by federal law to possess guns generally.
*430
But the only evidence that the government offered on this point is Moody's remark that he sold his share of the guns to "different people who heard about it." But what "it" refers to is impossible to discern from the record. "It" might refer to the train heist, or "it" might refer to a bunch of guns (which may or may not be stolen) available for an off-the-books sale. If "it" merely refers to a load of guns for sale, then Moody's statement simply establishes that
he
possessed stolen firearms. But that criminal act is already accounted for by his conviction for possessing a stolen firearm and does not justify the enhancement.
See
Moody's case thus 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.
See, e.g.,
United States v.Rodriguez
,
In short, the government's evidence that Moody sold guns to "different people who heard about it" is an insufficient basis for concluding that Moody sold guns to 2 or more people who satisfied the narrow criteria of U.S.S.G. § 2K2.1 n.13(A). In concluding otherwise, the district court relied on a series of inferences that were plainly too speculative to support a finding by a preponderance of the evidence. We therefore agree with Moody that the enhancement was plainly improper.
*431
In so holding, we are mindful that our precedents allow a district court great leeway to make commonsense inferences.
See, e.g.
,
United States v. Gilmore
,
Of course, this error is not reversible simply because it is plain-we must also conclude that it affected Moody's substantial rights and diminished the fairness, integrity, or reputation of the judicial proceedings. The Supreme Court has repeatedly emphasized that when an unpreserved guideline error is plain, it typically affects both fundamental rights and fairness by setting an incorrect range for the probable sentence.
See generally
Molina-Martinez v. United States
, --- U.S. ----,
None of this is to say that Moody is assured a lighter sentence on remand. Perhaps a revised PSR or other evidence will cure any ambiguity. And even if the gun-trafficking guideline does not apply, the district court may consider whether, as a matter of the sentencing factors under
III.
The judgment of the district court is VACATED and REMANDED for further proceedings consistent with this decision.
Moody has abandoned a different argument: that the district court engaged in impermissible double-counting under U.S.S.G. § 2K2.1(b) by applying both the four-level trafficking enhancement and a four-level enhancement for possessing a firearm in connection with another felony. Moody asked to incorporate by reference this argument from a codefendant's brief in an appeal that was not consolidated with this one. We need not address this argument for two reasons. First, as Moody conceded in his briefing, we rejected this double-counting theory from a codefendant's appeal,
United States v. Shelton
,
We might feel differently about this case if the government had presented more evidence (e.g., if the government had shown that Moody's buyers were connected to him and his train heist). But it is not clear from the record-not even the presentence investigation report or the government's sentencing memo-what Moody knew or had reason to know about who his buyers were or why they wanted guns, beyond his admission that his callers had "heard about it."
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Dandre MOODY, Defendant-Appellant.
- Cited By
- 22 cases
- Status
- Published