United States v. Elias Pagan

• Court: Court of Appeals for the Sixth Circuit
• Decided: October 16, 2025
• Docket: 24-4102
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 25a0471n.06

No. 24-4102 FILED UNITED STATES COURT OF APPEALS Oct 16, 2025 FOR THE SIXTH CIRCUIT KELLY L. STEPHENS, Clerk

) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF ELIAS PAGAN, ) OHIO Defendant-Appellant. ) ) OPINION

Before: READLER, MURPHY, and BLOOMEKATZ, Circuit Judges.

MURPHY, Circuit Judge. Elias Pagan sold crack cocaine and firearms to an undercover

officer. He pleaded guilty to drug and firearm offenses. At sentencing, the district court imposed

a gun-trafficking enhancement because it found that Pagan had “reason to believe” that the

undercover officer would use the weapons unlawfully. U.S.S.G. § 2K2.1 cmt. n.13(A)(ii) (2021).

Pagan challenges this conclusion. He also argues that the district court engaged in improper

“double counting” by applying this enhancement along with another one tied to the number of

firearms involved in his crimes. But Pagan knew of several facts suggesting that the undercover

officer planned to put the firearms to illicit purposes. And this enhancement applied because of

an aspect of Pagan’s crime distinct from the quantity of firearms involved. We thus affirm.

I

In early 2023, Angel Santiago came to the attention of law enforcement in Cleveland, Ohio.

On May 30 of that year, an undercover agent set up a drug transaction with Santiago. While

meeting this agent at the designated place, Santiago called Pagan to obtain the drugs. Later that No. 24-4102, United States v. Pagan

day, Pagan sold the agent some 29 grams of crack cocaine for $1,000. During this exchange, the

agent asked Pagan if he sold firearms too. Pagan answered in the affirmative.

The undercover agent and Pagan exchanged more crack cocaine on June 6. Pagan sold the

agent about 25 grams for $900. The agent also asked about firearms again. Pagan responded that

he had “multiple sources of firearms” and could also make them “on a 3D printer.” Rep., R.76,

PageID 421.

On June 12, Pagan met the undercover agent for a third time after a confidential informant

arranged a firearms transaction. The agent agreed to buy a Taurus revolver for $600 and a

Springfield pistol for $1,200. The revolver had six rounds of ammunition, and the pistol had an

extended magazine with 29 rounds. As the parties exchanged these weapons in the agent’s vehicle,

the agent asked Pagan if he also sold illegal “switches” that turned semiautomatic weapons into

fully automatic ones. Pagan said he would speak to his supplier about them. Pagan also offered

to sell the agent about 29 grams of crack cocaine for $800. The agent agreed. When Pagan left to

get these drugs, the agent placed the two firearms in a hidden compartment in the car. The agent

showed this secret compartment to Pagan after he returned with the drugs. They then completed

the drug deal.

Two days later, the confidential informant set up a second firearms deal between Pagan

and the undercover agent. Pagan sold the agent three firearms for a total of $2,200. The agent

obtained a shotgun with 23 shotgun shells, a Smith & Wesson pistol with 11 rounds, and a Glock

pistol with 21 rounds.

A short time later, the government charged Pagan with a mix of drug and firearm offenses.

It charged him with three counts of distributing cocaine for the drug deals on May 30, June 6, and

June 12. See 21 U.S.C. § 841(a)(1), (b)(1)(C). It charged him with one count of engaging in the

2 No. 24-4102, United States v. Pagan

business of firearms dealing without a license for the gun transactions on June 12 and 14. See

18 U.S.C. §§ 922(a)(1)(A), 924(a)(1)(D). And it charged him with two counts of possessing a

firearm as a felon for those transactions. See id. §§ 922(g)(1), 924(a)(8).

Pagan pleaded guilty to all six counts in a written plea agreement. The agreement made

clear that the government might ask the district court to impose a then-existing four-level

enhancement for firearms trafficking. See U.S.S.G. § 2K2.1(b)(5) (2021). This enhancement

applied if a defendant transferred at least two firearms to a person and the defendant had reason to

believe that this person could not lawfully possess the firearms or planned to use them unlawfully.

See id. § 2K2.1, cmt. n.13(A)(i)–(ii). Pagan’s presentence report later recommended this

enhancement. But he objected on the ground that he had no reason to believe that the undercover

agent could not possess the five firearms or would use them unlawfully.

At sentencing, the district court overruled Pagan’s objection. It found that the undisputed

facts would have given Pagan reason to believe that the firearms “would be used or disposed of

unlawfully.” Sent. Tr., R.84, PageID 499. The court also rejected Pagan’s separate claim that it

would engage in improper “double counting” if it applied this enhancement along with another

one. Id., PageID 501. The enhancement triggered a guidelines range of 121 to 151 months’

imprisonment. But the court chose to vary downward. It imposed a 100-month sentence.

II

On appeal, Pagan raises two challenges to the use of the trafficking enhancement. He

argues that his gun sales to the undercover agent did not justify the enhancement on its own terms.

And even if the enhancement could apply, he adds that the court still should not have used it

because the enhancement punished him twice for the same thing. Neither argument persuades.

3 No. 24-4102, United States v. Pagan

Trafficking Enhancement. The version of the guidelines applicable to Pagan told the

district court to increase his offense level by four if he “engaged in the trafficking of firearms[.]”

U.S.S.G. § 2K2.1(b)(5) (2021); cf. United States v. Saine, 2024 WL 3508691, at *6 n.7 (6th Cir.

July 23, 2024). The then-existing commentary (which both parties accept as a permissible reading

of the enhancement) clarified that it had two basic requirements. See U.S.S.G. § 2K2.1, cmt.

n.13(A) (2021). A defendant must have “transported, transferred, or otherwise disposed of two or

more firearms to another individual[.]” Id. § 2K2.1, cmt. n.13(A)(i). And the defendant must have

“kn[own] or had reason to believe” that at least one of these firearms would reach someone “whose

possession or receipt of the firearm would be unlawful” or “who intended to use or dispose of the

firearm unlawfully.” Id. § 2K2.1, cmt. n.13(A)(ii). This commentary further adopted a narrow

definition of the following phrase: “[i]ndividual whose possession or receipt of the firearm would

be unlawful.” Id. § 2K2.1, cmt. n.13(B). That phrase covered only those who had been convicted

of “a crime of violence, a controlled substance offense, or a misdemeanor crime of domestic

violence” or who were “under a criminal justice sentence” at the time of their offense. Id.

This case raises a narrow challenge about these requirements. Pagan does not dispute that

he “transferred” “two or more firearms to another individual[.]” Id. § 2K2.1, cmt. n.13(A)(i). And

the government makes no claim that Pagan “knew” that this individual could not lawfully possess

these firearms or planned to use them illegally. Id. § 2K2.1, cmt. n.13(A)(ii). That is for good

reason: an undercover law-enforcement officer received the firearms.

This case thus turns on whether Pagan had “reason to believe” that this undercover officer

might not be able to lawfully possess the firearms or might use them unlawfully. Id. As we have

explained in a related context, this reason-to-believe phrase demands no more than what courts

have required when asking whether the police had “probable cause” to search or seize someone.

4 No. 24-4102, United States v. Pagan

United States v. McKenzie, 33 F.4th 343, 347–49 (6th Cir. 2022). The test does not set a “high

bar.” Id. at 349 (quoting District of Columbia v. Wesby, 583 U.S. 48, 57 (2018)). At most, the

defendant must have known facts that “create a ‘fair probability’ that” an individual receiving the

firearms could not lawfully possess them or would use them illegally. Id. (quoting Florida

v. Harris, 568 U.S. 237, 244 (2013)). So the enhancement can apply even when a defendant sells

firearms to an undercover agent as long as the defendant learns facts suggesting that the agent

could not lawfully possess the firearms or would use them unlawfully. See United States

v. Pawlak, 822 F.3d 902, 912–13 (6th Cir. 2016), abrogated on other grounds by Beckles v. United

States, 580 U.S. 256 (2017); United States v. Henry, 819 F.3d 856, 870 (6th Cir. 2016).

A few examples illustrate this test in practice. We have held that a defendant had reason

to believe that an individual would use firearms unlawfully when the defendant sold the firearms

to his drug dealer, who planned to use the firearms to protect himself. United States v.

Lumpkin, 751 F. App’x 894, 896 (6th Cir. 2019); see also United States v. Torres, 644 F. App’x

663, 667–68 (6th Cir. 2016); United States v. Freeman, 640 F.3d 180, 189 (6th Cir. 2011).

Likewise, we have held that a defendant had reason to believe that individuals would use guns

illegally because they suggested that they would accept “stolen or otherwise ‘dirty’” firearms and

because the defendant offered to sell them drugs in addition to guns. United States v. Turner,

698 F. App’x 803, 806–07 (6th Cir. 2017). And we have held that a defendant had reason to

believe that an individual would use the firearms illegally when the defendant sold the individual

a firearm lacking a “serial number” and an “illegal, sawed-off shotgun” and explained how to

convert other weapons into illegal ones. See United States v. Jenkins, 528 F. App’x 483, 486 (6th

Cir. 2013).

5 No. 24-4102, United States v. Pagan

Did Pagan also learn enough facts to establish a “reason to believe” that the undercover

agent here could not lawfully possess the guns or would use them unlawfully? U.S.S.G. § 2K2.1,

cmt. n.13(A)(ii) (2021). Our answer must start with “a standard-of-review question.” McKenzie,

33 F.4th at 350. The parties do not dispute any of the historical facts. Rather, they disagree on the

question whether these undisputed facts created the required “reason to believe.” Our cases have

sometimes answered this “mixed” question under a de novo standard and sometimes under a

deferential one. Compare Pawlak, 822 F.3d at 911, with Freeman, 640 F.3d at 190. We need not

reconcile this caselaw here because Pagan’s claim fails either way. Cf. McKenzie, 33 F.4th at 350.

This case resembles those that have upheld the use of the enhancement. As a “big-picture”

matter, Pagan knew that the undercover agent suspiciously sought to buy firearms from an

unlawful dealer rather than a licensed one. Id.; see Pawlak, 822 F.3d at 912. After all, Pagan

pleaded guilty to engaging in an illegal firearms business. See 18 U.S.C. § 922(a)(1)(A). Next,

the agent made a “red flag” remark to Pagan. McKenzie, 33 F.4th at 351. He asked Pagan whether

Pagan sold illegal “switches” that could turn lawful firearms into unlawful ones. So Pagan

objectively should have known that the agent had an interest in obtaining illegal weapons. Cf.

Jenkins, 528 F. App’x at 486. After Pagan sold the first two guns to the agent, moreover, he saw

the agent place them in a secret compartment in his car. This “hidden” compartment (when

combined with a “parked car dealing[]”) should have further confirmed to Pagan that the agent

likely did not plan to use the firearms lawfully. Turner, 698 F. App’x at 806–07. Pagan also knew

that the officer had repeatedly bought illegal drugs from him, showing that the agent engaged in

illegal activity. Cf. id. at 806.

In response, Pagan tries to explain away the suspicious circumstances. He notes that it is

not illegal to have a “hidden compartment” in a car. Appellant’s Br. 26. He also suggests that he

6 No. 24-4102, United States v. Pagan

might not have known that switches are illegal. Id. And he adds that the agent never said what he

planned to do with the guns. Id. at 25–26. But the facts can still satisfy the reason-to-believe test

even if defendants can come up with an “innocent explanation” for their conduct. McKenzie,

33 F.4th at 351–52 (quoting Wesby, 583 U.S. at 61). That test requires only a “fair probability”

(not an absolute certainty) that the buyer will use the guns illegally. Id. at 349 (citation omitted).

Pagan next criticizes the district court for applying a “reasonable person” standard instead

of one that asked about Pagan’s own knowledge. Appellant’s Br. 24. Yet the enhancement applies

either if Pagan “knew” that the individual would use the weapons illegally or if he had “reason to

believe” that the individual would do so. U.S.S.G. § 2K2.1, cmt. n.13(A)(ii) (2021). The reason-

to-believe part of this test (in contrast to the knowledge part) shows that the enhancement can

apply even if Pagan did not subjectively believe that the officer would illegally use the guns. See

McKenzie, 33 F.4th at 348. The reason-to-believe test (like probable cause more generally)

establishes an objective (reasonable-person) standard. See Wesby, 583 U.S. at 54 n.2, 56–57.

Pagan lastly points to out-of-circuit precedent. The Seventh Circuit has suggested that the

enhancement does not categorically apply every time that buyers want to engage in “off-the-book

gun sales” because that fact alone reveals only illegal purchases. United States v. Moody, 915 F.3d

425, 430 (7th Cir. 2019) (Barrett, J.); see also United States v. Harris, 719 F. App’x 946, 950 (11th

Cir. 2018) (per curiam). But Pagan’s case involved much more than those types of sales. His

buyer had also expressed interest in buying illegal switches, purchased illegal drugs, and hid the

guns in a secret compartment. Similarly, the Fifth Circuit has suggested that the enhancement

cannot apply when the “record is silent” about the underlying facts that the defendant knew.

United States v. Green, 360 F. App’x 521, 525 (5th Cir. 2010) (per curiam). But this case does

not have a similar problem: the parties agree on the historical facts that Pagan knew. And those

7 No. 24-4102, United States v. Pagan

facts created the required likelihood that the agent might use the guns for illegal purposes. So the

district court properly applied the trafficking enhancement.

Double Counting. Alternatively, Pagan argues that the district court should not have

applied the trafficking enhancement under our “double counting” precedent. That precedent

sometimes prohibits a district court from using two enhancements that would otherwise apply if

they both punish the defendant for the same aspect of the crime. See United States v. Duke,

870 F.3d 397, 404 (6th Cir. 2017). When faced with a double-counting claim, we must ask two

questions. Did “double counting” occur? See United States v. Rupp, 2023 WL 370908, at *5 (6th

Cir. Jan. 24, 2023). If so, do the guidelines authorize the double counting? See id.

We need not proceed past the first question here. A court does not engage in double

counting if two enhancements punish a defendant for “distinct aspects” of the defendant’s criminal

activities. United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010). And here, Pagan received

all his enhancements for distinct parts of his crimes. Start with his base offense of 22. This level

applied because Pagan sold semiautomatic firearms capable of accepting large-capacity magazines

and because he had a prior controlled-substance conviction. See U.S.S.G. § 2K2.1(a)(3). These

reasons for his enhanced base offense level were “distinct” from the underlying reason for the

trafficking enhancement: that he sold firearms to an individual who might use them unlawfully.

Battaglia, 624 F.3d at 351.

Turn to Pagan’s two-level enhancement for selling between three and seven firearms. See

U.S.S.G. § 2K2.1(b)(1)(A). This enhancement targeted the high quantity of firearms that Pagan

sold. See Saine, 2024 WL 3508691, at *7. That quantity rationale also differs from the rationale

for the trafficking enhancement. Indeed, § 2K2.1(b)(1)(A) would have covered Pagan even if he

8 No. 24-4102, United States v. Pagan

sold the firearms to someone who would not have used them unlawfully and who could lawfully

possess them. See Saine, 2024 WL 3508691, at *7. So no double counting occurred.

We affirm.