Case: 19-11785 Date Filed: 01/21/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11785 Non-Argument Calendar ________________________
D.C. Docket No. 5:18-cr-00338-ACA-SGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES MICHAEL THOMAS CRISCOE,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(January 21, 2020)
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 19-11785 Date Filed: 01/21/2020 Page: 2 of 7
With the benefit of a plea bargain, James Criscoe pled guilty to two counts
of possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). The district court sentenced him to concurrent terms of 51 months’
imprisonment on each count. In this case, Criscoe appeals his sentences. He
argues that the district court clearly erred by applying a firearm-trafficking
enhancement under U.S.S.G. § 2K2.1(b)(5) because there was insufficient
evidence to find, or reasonably infer, that he transferred firearms to a person he
knew or had reason to know would possess them unlawfully. We agree and
therefore vacate Criscoe’s sentences and remand for resentencing.
BACKGROUND
In January 2018, a confidential police informant (CI) told police that he
could purchase $50.00 worth of methamphetamine and a .38 caliber revolver from
Criscoe, a previously convicted felon and known drug user. The police provided
the CI with the funds to make this purchase, and on January 9, Criscoe sold the CI
a revolver and two “plastic baggies” of methamphetamine. During the transaction,
Criscoe and the CI discussed a pistol that Criscoe wanted to sell. The CI debriefed
police, who provided him funds to purchase the pistol. The following day, Criscoe
sold the CI the pistol. Criscoe was arrested shortly after the second transaction.
Neither firearm had been reported stolen, and neither had altered serial numbers.
2 Case: 19-11785 Date Filed: 01/21/2020 Page: 3 of 7
After Criscoe entered his guilty plea, the Probation Office prepared a
presentence investigation report (PSR). Under U.S.S.G. § 2K2.1(a)(5), Criscoe’s
base offense level was 14. Of the various enhancements and adjustments to his
offense level, only one is relevant here: under § 2K2.1(b)(5), a four-level
enhancement was applied for trafficking in firearms. According to the PSR, this
enhancement was warranted because Criscoe transferred two firearms to the CI
knowing that it was unlawful for the CI to possess the firearms.
Before sentencing, Criscoe objected to the § 2K2.1(b)(5) enhancement,
arguing that there was no evidence that he knew or had reason to believe that the
CI could not possess the firearms or intended to use or dispose of them unlawfully.
Probation argued that since he provided the CI with methamphetamine, Criscoe
knew or should have known that he was selling to an individual who could not
possess a firearm. At sentencing, Criscoe repeated his objection to the
§ 2K2.1(b)(5) enhancement, and the government repeated Probation’s arguments.
The district court overruled the objection and applied the enhancement. In its
Statement of Reasons, the district court noted that it adopted the PSR without
change.
DISCUSSION
We review a “district court’s application of the sentencing guidelines de
novo and its factual findings for clear error.” United States v. Asante, 782 F.3d
3 Case: 19-11785 Date Filed: 01/21/2020 Page: 4 of 7
639, 642 (11th Cir. 2018). “We may affirm a sentencing enhancement for any
reason supported by the record, even if not relied upon by the district court.”
United States v. Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015) (internal quotation
mark omitted). But, if we affirm on other grounds, “the alternative route for
affirming [may] not require facts that remain to be found by the district court.”
United States v. Chitwood, 676 F.3d 971, 976 (11th Cir. 2012).
When reviewing for clear error, we will not disturb a district court’s findings
unless “we are left with a definite and firm conviction a mistake has been made.”
United States v. Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015). We interpret the
Guidelines “in light of the Commentary and Application Notes, which are binding
unless they contradict the Guidelines’ plain meaning.” Id. When the government
is seeking to apply a sentence enhancement over a defendant’s factual objection,
the government “has the burden of introducing sufficient and reliable evidence to
prove the necessary facts by a preponderance of the evidence.” United States v.
Washington, 714 F.3d 1358, 1361 (11th Cir. 2013) (internal quotation marks
omitted). “This burden requires the trier of fact to believe that the existence of a
fact is more probable than its nonexistence.” United States v. Almedina, 686 F.3d
1312, 1315 (11th Cir. 2012) (internal quotation mark omitted). While a district
court may rely on undisputed factual statements in the PSR and may make
4 Case: 19-11785 Date Filed: 01/21/2020 Page: 5 of 7
reasonable inferences from the facts, it may not rely on speculative inferences. See
United States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (per curiam).
Section 2K2.1(b)(5) provides for a four-level enhancement if the defendant
is “engaged in the trafficking of firearms.” As relevant here, the enhancement
applies if the defendant transferred two or more firearms, and knew or had reason
to know that the transfer was to a person: (1) whose possession of the firearms
would be unlawful; or (2) who intended to use or dispose of the firearms
unlawfully. U.S.S.G. § 2K2.1, comment. (n.13(A)). A person whose possession
of the firearms would be unlawful is either an individual who:
(i) has a prior conviction for a crime of violence, a controlled substance offense, or a misdemeanor crime of domestic violence; or (ii) at the time of the offense was under a criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.
U.S.S.G. § 2K2.1, comment. (n.13(B)). When determining whether a defendant
knew his conduct would result in the transfer of firearms to someone that would
trigger the trafficking enhancement, courts look “to the circumstances known to
the defendant.” See Asante, 782 F.3d at 644.
Here, to support the § 2K2.1(b)(5) enhancement on the basis that Criscoe
sold the firearms to an unlawful possessor, the government needed to provide
sufficient evidence to conclude that Criscoe knew or had reason to know that he
sold the firearms to a person who satisfied the narrow criteria of § 2K2.1(b)(5). It 5 Case: 19-11785 Date Filed: 01/21/2020 Page: 6 of 7
did not. Therefore, the district court’s adopted conclusion—that the CI’s purchase
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Case: 19-11785 Date Filed: 01/21/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-11785 Non-Argument Calendar ________________________
D.C. Docket No. 5:18-cr-00338-ACA-SGC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES MICHAEL THOMAS CRISCOE,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(January 21, 2020)
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM: Case: 19-11785 Date Filed: 01/21/2020 Page: 2 of 7
With the benefit of a plea bargain, James Criscoe pled guilty to two counts
of possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). The district court sentenced him to concurrent terms of 51 months’
imprisonment on each count. In this case, Criscoe appeals his sentences. He
argues that the district court clearly erred by applying a firearm-trafficking
enhancement under U.S.S.G. § 2K2.1(b)(5) because there was insufficient
evidence to find, or reasonably infer, that he transferred firearms to a person he
knew or had reason to know would possess them unlawfully. We agree and
therefore vacate Criscoe’s sentences and remand for resentencing.
BACKGROUND
In January 2018, a confidential police informant (CI) told police that he
could purchase $50.00 worth of methamphetamine and a .38 caliber revolver from
Criscoe, a previously convicted felon and known drug user. The police provided
the CI with the funds to make this purchase, and on January 9, Criscoe sold the CI
a revolver and two “plastic baggies” of methamphetamine. During the transaction,
Criscoe and the CI discussed a pistol that Criscoe wanted to sell. The CI debriefed
police, who provided him funds to purchase the pistol. The following day, Criscoe
sold the CI the pistol. Criscoe was arrested shortly after the second transaction.
Neither firearm had been reported stolen, and neither had altered serial numbers.
2 Case: 19-11785 Date Filed: 01/21/2020 Page: 3 of 7
After Criscoe entered his guilty plea, the Probation Office prepared a
presentence investigation report (PSR). Under U.S.S.G. § 2K2.1(a)(5), Criscoe’s
base offense level was 14. Of the various enhancements and adjustments to his
offense level, only one is relevant here: under § 2K2.1(b)(5), a four-level
enhancement was applied for trafficking in firearms. According to the PSR, this
enhancement was warranted because Criscoe transferred two firearms to the CI
knowing that it was unlawful for the CI to possess the firearms.
Before sentencing, Criscoe objected to the § 2K2.1(b)(5) enhancement,
arguing that there was no evidence that he knew or had reason to believe that the
CI could not possess the firearms or intended to use or dispose of them unlawfully.
Probation argued that since he provided the CI with methamphetamine, Criscoe
knew or should have known that he was selling to an individual who could not
possess a firearm. At sentencing, Criscoe repeated his objection to the
§ 2K2.1(b)(5) enhancement, and the government repeated Probation’s arguments.
The district court overruled the objection and applied the enhancement. In its
Statement of Reasons, the district court noted that it adopted the PSR without
change.
DISCUSSION
We review a “district court’s application of the sentencing guidelines de
novo and its factual findings for clear error.” United States v. Asante, 782 F.3d
3 Case: 19-11785 Date Filed: 01/21/2020 Page: 4 of 7
639, 642 (11th Cir. 2018). “We may affirm a sentencing enhancement for any
reason supported by the record, even if not relied upon by the district court.”
United States v. Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015) (internal quotation
mark omitted). But, if we affirm on other grounds, “the alternative route for
affirming [may] not require facts that remain to be found by the district court.”
United States v. Chitwood, 676 F.3d 971, 976 (11th Cir. 2012).
When reviewing for clear error, we will not disturb a district court’s findings
unless “we are left with a definite and firm conviction a mistake has been made.”
United States v. Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015). We interpret the
Guidelines “in light of the Commentary and Application Notes, which are binding
unless they contradict the Guidelines’ plain meaning.” Id. When the government
is seeking to apply a sentence enhancement over a defendant’s factual objection,
the government “has the burden of introducing sufficient and reliable evidence to
prove the necessary facts by a preponderance of the evidence.” United States v.
Washington, 714 F.3d 1358, 1361 (11th Cir. 2013) (internal quotation marks
omitted). “This burden requires the trier of fact to believe that the existence of a
fact is more probable than its nonexistence.” United States v. Almedina, 686 F.3d
1312, 1315 (11th Cir. 2012) (internal quotation mark omitted). While a district
court may rely on undisputed factual statements in the PSR and may make
4 Case: 19-11785 Date Filed: 01/21/2020 Page: 5 of 7
reasonable inferences from the facts, it may not rely on speculative inferences. See
United States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (per curiam).
Section 2K2.1(b)(5) provides for a four-level enhancement if the defendant
is “engaged in the trafficking of firearms.” As relevant here, the enhancement
applies if the defendant transferred two or more firearms, and knew or had reason
to know that the transfer was to a person: (1) whose possession of the firearms
would be unlawful; or (2) who intended to use or dispose of the firearms
unlawfully. U.S.S.G. § 2K2.1, comment. (n.13(A)). A person whose possession
of the firearms would be unlawful is either an individual who:
(i) has a prior conviction for a crime of violence, a controlled substance offense, or a misdemeanor crime of domestic violence; or (ii) at the time of the offense was under a criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.
U.S.S.G. § 2K2.1, comment. (n.13(B)). When determining whether a defendant
knew his conduct would result in the transfer of firearms to someone that would
trigger the trafficking enhancement, courts look “to the circumstances known to
the defendant.” See Asante, 782 F.3d at 644.
Here, to support the § 2K2.1(b)(5) enhancement on the basis that Criscoe
sold the firearms to an unlawful possessor, the government needed to provide
sufficient evidence to conclude that Criscoe knew or had reason to know that he
sold the firearms to a person who satisfied the narrow criteria of § 2K2.1(b)(5). It 5 Case: 19-11785 Date Filed: 01/21/2020 Page: 6 of 7
did not. Therefore, the district court’s adopted conclusion—that the CI’s purchase
of methamphetamine gave Criscoe reason to believe he provided firearms to an
unlawful possessor—was a clear error. A plain reading of § 2K2.1(b)(5)’s
commentary compels this result as the possession of a firearm as a drug user is not
unlawful possession for the purposes of § 2K2.1(b)(5).
However, the government argues that the district court provided another
basis for the enhancement because it found that Criscoe knew or had reason to
know the CI would illegally use or dispose of the firearms. Having reviewed the
record, we are not persuaded by this argument. The parties and the district court
discussed both bases for the § 2K2.1(b)(5) enhancement at Criscoe’s sentencing
hearing. But the district court did not make clear upon which basis it ultimately
relied. Instead, in its Statement of Reasons, the district court adopted the PSR
without change, and the PSR only attempts to support that Criscoe sold the
firearms to a prohibited person. In short, because the record does not contain a
finding that Criscoe knew or had reason to know the CI would illegally use or
dispose of the firearms, we cannot affirm the district court on that basis.
Alternatively, the government argues that we can affirm because the record
amply supports a finding that the CI intended to illegally use or dispose of the
firearms. We reject this suggestion because this alternative route to affirmance
6 Case: 19-11785 Date Filed: 01/21/2020 Page: 7 of 7
would “require facts that remain to be found by the district court.” See Chitwood,
676 F.3d at 976.
For the foregoing reasons, we vacate Criscoe’s sentence and remand for
further proceedings consistent with this decision.
VACATED AND REMANDED.