United States v. Bolton

66 F. App'x 638
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 5, 2003
DocketNo. 02-2323
StatusPublished
Cited by1 cases

This text of 66 F. App'x 638 (United States v. Bolton) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bolton, 66 F. App'x 638 (7th Cir. 2003).

Opinion

ORDER

Charles Bolton was an unlicensed firearms dealer who was caught and later pleaded guilty to violations of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D) (knowingly and willfully engaging in the business of dealing in firearms without having obtained a federal license to do so) and 18 U.S.C. § 924(a)(1)(A) (making a false statement to a firearms dealer). At sentencing, the district court concluded that a four-level upward adjustment to Bolton’s offense level was called for under U.S.S.G. § 2K2.1(b)(5), which covers use, possession, or transfer of a firearm in connection with another felony offense. On appeal, Bolton’s only claim is that the district court erred when it applied that adjustment. We find it difficult to follow the district court’s reasoning for this decision, and, because we are concerned that the court may have relied on reasons foreclosed by the governing law, we vacate the sentence and remand the case for resentencing in accordance with this order.

I

Between 1997 and 1999, Bolton purchased eleven handguns, seven of which he either sold without a firearms license or traded in exchange for marijuana. The federal Bureau of Alcohol, Tobacco and Firearms (ATF) learned about these transactions during a routine investigation into purchasers of firearms whose weapons had been recovered from another individual or at a crime scene. This discovery prompted a further investigation, which led to Bolton’s arrest in December 2001. During an interview shortly after his arrest, after receiving his Miranda warnings, Bolton described the transfer of one of the guns. He explained that he owed money to a former friend, Shokee Cleveland, for some marijuana that Cleveland had sold to him. Cleveland was interested in the gun as partial payment because he was unable to purchase a firearm himself. Cleveland may have been under a disability related to mental health, as he had apparently shot himself on one occasion. Bolton thought that Cleveland’s inability to buy a firearm directly stemmed from his previous commitment to a mental institution, but Cleveland never confirmed or denied that fact. In any event, the transfer took place: Bolton bought the firearm for Cleveland, Cleveland forgave $200 of Bolton’s marijuana debt, and Cleveland also gave Bolton $50 in cash.

On December 4, 2001, the grand jury returned a three-count indictment against Bolton, charging him with unlawful dealing in firearms (Count One) and knowingly making false statements to a firearms dealer (Counts Two and Three). A few months later, Bolton pleaded guilty to Count One of the indictment and to an information that charged him with knowingly making a false statement and representation with respect to information that licensed firearms dealers are required by law to keep. The parties agreed that the government would rec[640]*640ommend a base offense level of 12, under U.S.S.G. § 2K2.1(a)(7), and that a four-level increase was appropriate under § 2K2.1(b)(l)(B) because the offense involved 11 firearms. The parties also acknowledged that the government was going to recommend another four-level increase pursuant to § 2K2.1(b)(5) for transferring a firearm with reason to believe that it would be possessed in connection with another felony offense, and that Bolton would not join in that recommendation. The Presentence Report tracked most of this, including most importantly the government’s position that the § 2K2.1(b)(5) enhancement was proper.

The district court decided to accept the probation officer’s recommendation to apply § 2K2.1(b)(5). Unfortunately, however, it is difficult for us to tell why the court did so. In his oral findings, Judge Stadtmueller did not specify whether he thought the guideline applied (1) because Bolton used the firearm in connection with another felony offense, or (2) because Bolton had reason to believe that the firearm would be used or possessed in connection with another felony offense (in the future). Instead, the judge relied generally on Smith v. United States, 508 U.S. 223, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993), which held that trading a firearm for drugs can constitute “use” of that weapon within the meaning of 18 U.S.C. § 924(c)(1). Recognizing that Smith was not precisely on point, because there was no direct exchange of the gun for drugs between Bolton and Cleveland, the court concluded that the adjustment should apply because Bolton’s firearm purchase for Cleveland amounted to the same thing.

The court also suggested an entirely different reason why § 2K2.1(b)(5) should apply, which relied on the fact that Bolton had given the firearm to a person who was not permitted to possess it:

But the additional ingredient that we have here is the matter of Mr. Bolton contributing to the unlawful possession of a firearm by someone who was under a disability from owning a firearm ... What is at issue is a reasonable inference from Mr. Cleveland’s statements to Mr. Bolton that he could not lawfully acquire a firearm in his own right, which in my mind’s eye presents more than a sufficient nexus as to what the Sentencing Commission had in mind when they adopted [§ 2K2.1(b)(5)].

The judge did not explain what connection he saw between the “additional ingredient” he identified and the question whether Bolton had used the gun in connection with a gun trafficking offense or had reason to believe that it would be used in connection with another felony offense.

II

This court ordinarily would review the district court’s decision that the factual predicate for applying § 2K2.1(b)(5) was present for clear error. See United States v. Brumfield, 301 F.3d 724, 730 (7th Cir.2002). Nevertheless, before we can conduct meaningful review, it is also necessary for us to have an adequate understanding of -what facts the district court actually found, and on what basis it made those findings. See United States v. Schaefer, 291 F.3d 932, 938-39 (7th Cir.2002); cf. United States v. Menza, 137 F.3d 533, 538 (7th Cir.1998) (restitution context). In this case, we are not confident that we have such an understanding. Moreover, as we explain below, we find problems with the various theories the court may have been considering. We thus see no alternative to a remand for further consideration of the question whether this enhancement was proper, and if so, on what exact basis.

[641]*641“Prohibited Person. ” The first possibility we consider is that the enhancement was somehow justifiable on the theory that the firearm transfer to Cleveland was illegal because he was a “prohibited person.” A “prohibited person” is someone who cannot legally possess a firearm. The idea here is that under 18 U.S.C. § 922

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Bluebook (online)
66 F. App'x 638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bolton-ca7-2003.