NOT RECOMMENDED FOR PUBLICATION File Name: 24a0318n.06
Case No. 23-5426
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Jul 23, 2024 ) UNITED STATES OF AMERICA, KELLY L. STEPHENS, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN TONYA RAE SAINE fka Tonya Rae Bowles, ) DISTRICT OF TENNESSEE Defendant-Appellant. ) ) OPINION
Before: BOGGS, COOK, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. A jury convicted Tonya Saine for making a false
statement to acquire firearms and transferring two firearms to her husband knowing that he was a
felon barred from possessing firearms. She asks us to reverse her conviction for various reasons.
Finding none convincing, we AFFIRM.
I.
A.
On September 4, 2021, Tonya Saine, then Tonya Bowles, allegedly bought two guns for
Ricco Saine, whom she married less than a week later. She bought a Springfield Armory Saint
rifle and a Walther PK .380 pistol from Smoky Mountain Guns & Ammo. Store cameras captured
Saine’s purchase on video. It shows Saine and Ricco approach the counter, pointing to multiple
guns and appearing to discuss them. They asked to see two rifles from behind the counter, and an
employee, Lacey Hurst, handed the first gun to Saine, who then handed it to Ricco. Hurst handed No. 23-5426, United States v. Saine
the second gun directly to Ricco, who later handed it to Saine. Fast forward a few minutes, and
Hurst unboxes a rifle to hand to Saine. But Saine gestures toward Ricco as if to say that he should
hold it, but Ricco declines. So Saine receives the gun then immediately hands it to Ricco, who
examines it. Saine and Ricco then repeat this process shopping for pistols—Ricco points to certain
handguns, Hurst brings them out from behind the counter, and Ricco and Saine take turns handling
the weapons, with Ricco testing their weight and grip. At check out, Saine completed paperwork,
a required ATF Form 4473, which allows the seller to do a background check.1 Saine completed
the paperwork electronically then left the store with Ricco carrying the guns.
A few days later, while investigating possible firearms violations by Ricco, an ATF task
force officer visited the home of Ricco and Saine. Saine told him she knew Ricco was a felon and
that she owned three firearms. Roughly a month later, police arrested Ricco. They searched his
phone and found a text message from Saine on September 12—a little over a week after their trip
to Smoky Mountain and a few days after their marriage—saying, “I’ve got your gun and stuff in
the house.” R.189, Trial Tr., pp.72–74, PageID 1661–63. Ricco responded, “K.” Id. at p.74,
PageID 1663. Federal authorities later arrested Saine.
B.
A grand jury charged Saine with violating 18 U.S.C. § 922(a)(6) by making a false
statement to acquire firearms and § 922(d)(1) by transferring two firearms to her husband knowing
1 Question 21.a of the Form asks, “Are you the actual transferee/buyer of the firearm(s) listed on this form[?]” R.246-1, ATF Form 4473, p.1, PageID 2813. The Form also requires the buyer to make several certifications: “I certify that my answers . . . are true, correct, and complete,” “I understand that answering ‘yes’ to question 21.a. if I am not the actual transferee/buyer is a crime punishable as a felony under Federal law,” and “I also understand that making any false oral or written statement, or exhibiting any false or misrepresented identification with respect to this transaction, is a crime punishable as a felony under Federal law.” Id. at p.2, PageID 2814.
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he was a felon. The grand jury also charged Ricco with various offenses, but the cases were
severed for trial.
Before trial, Saine moved to exclude any conversations, including text messages, with her
husband under the marital privilege. The district court denied these motions as it pertained to the
texts because they concerned joint illegal activity, so the marital privilege did not bar their
admission.
Then came trial. The government introduced evidence including the video described
above, photographs from the video, text messages between Saine and Ricco, and witness testimony
linking Ricco to the guns.2 The jury found Saine guilty of both offenses. Saine moved for a new
trial, which the district court denied.
Saine’s case proceeded to sentencing. An initial presentence report calculated Saine’s
Guidelines range using a total offense level of 18, including one enhancement, and a criminal
history category of I. After considering objections, the court applied another enhancement, which
increased Saine’s total offense level to 20, and increased her Guidelines range to 33 to 41 months
in prison. The court sentenced Saine to 21 months in prison and three years of supervised release.
Saine timely appealed. She raises a host of challenges, attacking almost every stage of
litigation. She alleges (1) an error in denying her pretrial motions to exclude evidence under
marital privilege, (2) insufficiency of the evidence at trial, (3) errors in not granting a new trial,
and (4) an error in calculating her Guidelines range at sentencing. We address each in turn.
2 One witness, Kaylea Campbell, is important to a few of Saine’s challenges because the government discovered a video of a previous interview between Campbell and a detective in which she discussed Ricco. The government only disclosed the video to Saine’s counsel on the second day of trial. The government claims that they only discovered it that day. See R.189, pp.127–28, PageID 1716–17.
3 No. 23-5426, United States v. Saine
II.
Saine argues that, under the marital privilege, the district court erred in admitting the text
messages between her and Ricco.3 We review a district court’s evidentiary ruling in the context
of marital privilege for an abuse of discretion. United States v. Underwood, 859 F.3d 386, 389
(6th Cir. 2017). But “the contours of that privilege are reviewed de novo.” Id.
For the confidential marital communications privilege to apply, there must be a valid
marriage and a communication made in confidence by one spouse to the other. Id. at 390. But we
have long “recognized that confidential marital communications are unprotected when they pertain
to joint criminal activity.” Id. (citing United States v. Sims, 755 F.2d 1239, 1243 (6th Cir. 1985)).
If there is joint criminal activity, “the public’s interest in discovering the truth about criminal
activity outweigh[s] the public’s interest in protecting the privacy of marriage.” Sims, 755 F.2d at
1241.
The court correctly admitted Saine and Ricco’s texts under the joint-criminality exception.
Saine texted Ricco, “I’ve got your gun and stuff in the house,” to which he responded, “K.” R.189,
p.74, PageID 1663. Saine knew Ricco was a felon, so she knew he could not legally possess a
firearm. By saying she had his gun in the house, Saine suggested that she intended to transfer a
firearm to her husband, thus constituting criminal activity. See 18 U.S.C. § 922(d)(1). The
privilege therefore does not apply. See United States v. Jackson, 768 F. App’x 400, 408 (6th Cir.
2019) (affirming admission of testimony when wife had “knowledge of her husband’s criminal
history” and he asked her to buy him ammunition).
3 Though there are two forms of marital privilege—the adverse-spousal-testimony privilege and the confidential-marital-communications privilege—only the latter could apply here.
4 No. 23-5426, United States v. Saine
Saine asserts that the joint-criminality exception should apply only to “obviously criminal
activity,” such as statements like “I’ll go with you to buy a firearm,” “I’ll lie and say the guns are
for me,” or “Let’s go buy some guns together.” Appellant Br. at 24. We’ve rejected this reasoning.
The “argument that the exception only applies to statements that are ‘unlawful on their face’
reflects a fundamental misunderstanding of the law.” United States v. Gray, 71 F. App’x 485, 489
(6th Cir. 2003). “We have explained quite clearly that the exception applies to any conversation
‘pertain[ing] to joint criminal activity.’” Id. (quoting Sims, 755 F.2d at 1241–43). So the
messages “need not reveal an explicit, step-by-step account of the crime to be admissible.” Id.;
see also United States v. Creech, 852 F. App’x 172, 174–75, 177 (6th Cir. 2021). Instead, the
messages need only “pertain to joint criminal activity.” Underwood, 859 F.3d at 390; see also
Sims, 755 F.2d at 1241. A message suggesting transferring firearms to a felon certainly pertains
to criminal activity. So the district court did not err.
III.
Saine’s next claim is a twofold insufficiency-of-the-evidence argument. First, she believes
there was insufficient evidence to convict her of transferring a firearm to a felon. Second, there
was insufficient evidence to convict her of making a false statement in acquiring a firearm.
We review sufficiency-of-the-evidence challenges de novo. United States v. Small, 988
F.3d 241, 249 (6th Cir. 2021). But there is a “strong presumption in favor of sustaining a jury
conviction.” United States v. Peters, 15 F.3d 540, 544 (6th Cir. 1994). A defendant seeking
judicial reversal of a jury determination of guilt, therefore, “faces a steep climb.” United States v.
Stafford, 639 F.3d 270, 273 (6th Cir. 2011).
We ask “whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
5 No. 23-5426, United States v. Saine
doubt.” Small, 988 F.3d at 249–50 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). But
we don’t “reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment
for that of the jury.” United States v. Martinez, 430 F.3d 317, 330 (6th Cir. 2005).
Federal law prohibits “sell[ing] or otherwise dispos[ing] of any firearm or ammunition to
any person” who you know, or have reasonable cause to believe, “has been convicted in any court
of[] a crime punishable by imprisonment for a term exceeding one year.” 18 U.S.C. § 922(d)(1).
In short, you can’t knowingly sell or give guns to a felon. No one disputes Ricco’s felon status,
nor do they dispute that Saine knew Ricco was a felon. So Saine’s challenge hinges on whether
she knowingly disposed of a firearm to Ricco.
The statute does not define “dispose of,” but we have said it occurs when the defendant
allows another person to come into actual or constructive possession or control of a firearm.
United States v. Washington, 166 F. App’x 823, 830 (6th Cir. 2006) (collecting cases). For
decades, we’ve acknowledged that possession of a weapon may be “either actual or constructive
and it need not be exclusive but may be joint.” United States v. Covert, 117 F.3d 940, 948 (6th
Cir. 1997) (quoting United States v. Beverly, 750 F.2d 34, 37 (6th Cir. 1984)). Though an
individual has actual possession when the object is in his “immediate possession or control,” a
person may also have constructive possession when he “knowingly has the power and the intention
at a given time to exercise dominion and control over an object, either directly or through others.”
Id. (quoting Beverly, 750 F.2d at 37).
Viewing the evidence in the light most favorable to the government, a rational trier of fact
could have found beyond a reasonable doubt that Saine disposed of firearms to Ricco. The jury
saw video of Ricco and Saine picking out different guns, Saine handing guns to Ricco to examine
6 No. 23-5426, United States v. Saine
them, and then Ricco leaving the store carrying the guns that Saine bought. The jury also heard
that Saine kept the rifle in an unlocked zipper bag beneath her and Ricco’s bed, which means he
could have accessed the gun at any time. R.189, p.58, PageID 1647. And one witness testified
that she saw Ricco holding a pistol that matched the description of the one Saine purchased at the
gun store. Id. at pp.108–09, PageID 1697–98. What’s more, the jury saw the text saying, “I’ve
got your gun and stuff in the house.” Id. at pp.72–74, PageID 1661–63. This constellation of
evidence could lead a jury to reasonably conclude that Saine “disposed of” firearms to Ricco, if
not actually then at least constructively.
Saine argues that “the evidence at trial did not prove an actual transfer of the firearms in
question” because there is no evidence corroborating testimony linking Ricco to the guns, nor did
Ricco have the guns when he had a few encounters with police. Appellant Br. at 17–19. But this
argument demands too much—it demands actual, exclusive possession. To repeat, “possession
may be either actual or constructive and it need not be exclusive but may be joint.” Covert, 117
F.3d at 948 (quoting Beverly, 750 F.2d at 37); see also Washington, 166 F. App’x at 830 (applying
definition to § 922(d)(1)). Saine kept the guns in the home that she shared with Ricco where he
could readily access them. Plus, even if the statute did require something closer to complete
control, the jury was not unreasonable to credit the evidence that Saine texted Ricco saying, “I’ve
got your gun and stuff in the house,” implying the “transfer [of] a firearm so that the transferee
acquires possession of the firearm.” See United States v. Jefferson, 334 F.3d 670, 675 (7th Cir.
2003). We thus reject Saine’s first sufficiency challenge.
Saine also argues there was insufficient evidence to convict her of making a false statement
when acquiring a firearm, in violation of 18 U.S.C. § 922(a)(6). To sustain a § 922(a)(6)
7 No. 23-5426, United States v. Saine
conviction, the government “had to prove beyond a reasonable doubt that: (1) the defendant
knowingly made (2) a false or fictitious oral or written statement that was (3) material to the
lawfulness of the sale or disposition of a firearm,4 and was (4) intended to deceive or likely to
deceive a firearms dealer.” United States v. Harvey, 653 F.3d 388, 393 (6th Cir. 2011).
As mentioned, Saine filled out an ATF Form 4473, Question 21.a of which asks, “Are you
the actual transferee/buyer of the firearm(s) listed on this form[?]” R.246-1, p.1, PageID 2813.
And the Form states, “I certify that my answers . . . are true, correct, and complete,” and that “I
understand that answering ‘yes’ to question 21.a. if I am not the actual transferee/buyer is a crime
punishable as a felony under Federal law.” Id. at p.2, PageID 2814.
The government points out that the “jury heard that some of the signs of a ‘straw sale’”—
a sale where the buyer purchases a gun for someone that can’t legally buy guns—“include a buyer’s
apparent lack of interest in the firearm, unfamiliarity with the operation of the firearm, or lack of
firearm knowledge, especially when accompanied by another person who handles the firearm and
seems more interested or where the person who completes the paperwork is not the one who
selected or primarily handled the firearm.” Appellee Br. at 27 (citing R.188, Trial. Tr., pp.55–56,
65–69 PageID 1546–48, 1556–60; R.189, p.145 PageID 1734). Most of those aspects were present
here.
One witness from Smoky Mountain, who reviewed the surveillance video, testified that
Ricco showed more interest in the firearms than Saine. R.188, pp.94–95, PageID 1585–86. This
is apparent from the video, which also shows Ricco handling the guns more than Saine. Another
witness testified that Saine seemed unfamiliar with the firearms she had purchased. For example,
4 Falsely identifying the true purchaser on Form 4473 is “material” for 18 U.S.C. § 922(a)(6). Abramski v. United States, 573 U.S. 169, 190 (2014).
8 No. 23-5426, United States v. Saine
she mischaracterized the manufacturer and caliber of the pistol and didn’t know how to load a
firearm. R.189, pp. 147–51, PageID 1736–40. Last, and perhaps most obviously, Saine’s text
message to Ricco that she had “your gun” suggested to the jury that she had purchased at least one
firearm to transfer to him, id. at p.74, PageID 1663, thus indicating that she lied when she certified
on the Form that she was the buyer. Ample evidence supported the jury’s determination that Saine
made a false statement when buying firearms.
Saine insists that she did not lie on the Form, and that she was in fact the “actual
transferee/buyer of the firearms” because she never transferred the guns to Ricco, echoing her
argument above. And as discussed there, that argument is unpersuasive. So Saine pivots to
arguing that in “other cases where girlfriends or wives are convicted of straw purchases, there are
either admissions by the female that they purchased [guns] for their husband, or they are observed
transferring possession of the firearms to their boyfriends, knowing their status as a prohibited
person.” Appellant Br. at 21. Again, Saine sets the bar higher than what the government needed
to meet. Indeed, Saine cites no case for this proposition.5 All said, there did not need to be a direct
admission; the jury could infer that Saine lied from all the evidence. See United States v. Franklin,
415 F.3d 537, 554 (6th Cir. 2005) (“We may not question credibility determinations made and
inferences drawn by the jury unless they are wholly unreasonable.”).
IV.
Saine next contests the district court’s decision not to grant a new trial. As she sees it, the
court committed various errors: First, the government failed to disclose a recorded interview of
5 In fact, the one case Saine cites cuts the other way. See Appellant Br. at 21 (citing United States v. Manis, 344 F. App’x 160, 165–66 (6th Cir. 2009) (rejecting sufficiency of the evidence challenge where felon had his wife provide information for background check and she knew her husband’s status)).
9 No. 23-5426, United States v. Saine
witness Kaylea Campbell until day two of trial. Second, the district court wrongly denied Saine’s
requested jury instruction. And third, “the Government did not call a material witness on its
witness list.” Appellant Br. at 26, 34–35.
Saine must overcome the fact that “[m]otions for a new trial are not favored and are granted
only with great caution.” United States v. Fritts, 557 F. App’x 476, 479 (6th Cir. 2014) (quoting
United States v. Garner, 529 F.2d 962, 969 (6th Cir. 1976)). “We will not reverse the district
court’s ruling on a motion for new trial absent a clear abuse of discretion.” United States v. Seago,
930 F.2d 482, 488 (6th Cir. 1991). Saine cannot make that showing on any of her challenges.
Saine first argues that the government failed to provide a recorded interview with one of
the witnesses, Kaylea Campbell, until day two of trial. The government concedes this point. At
trial, Campbell testified that she had seen Ricco with a gun that looked like the pistol Saine bought.
Saine alleges that Campbell admits to being addicted to methamphetamine during the interview,
thus casting doubt on her veracity. And Saine now claims that this late disclosure meant that her
counsel had insufficient time to use the video to impeach Campbell.
The relevant inquiry here is whether this delay prejudiced Saine. See United States v.
Garner, 507 F.3d 399, 405 (6th Cir. 2007) (“If previously undisclosed evidence is disclosed during
trial, no Brady violation occurs unless the defendant has been prejudiced by the delay in
disclosure.”) (internal quotation marks omitted). The prejudice inquiry comes down to
“materiality.” United States v. Uwazurike, 580 F. App’x 440, 448 (6th Cir. 2014). And “evidence
is material if it impacts a determination of defendant’s guilt or innocence, not his ability to prepare
for trial.” Id.
10 No. 23-5426, United States v. Saine
Saine cannot show prejudice. Saine did not “inform the [c]ourt that she needed additional
time to review the recording, nor . . . that she had any concerns regarding her ability to fully utilize
the information contained therein.” R.178, Op. and Order, p.7, PageID 1376. Saine admits that
her counsel was able to review most of the video. And Saine’s counsel used the video while cross-
examining Campbell, R.189, p.124–36, PageID 1713–25, dedicated much of the closing argument
to the point that she was not credible, R.190, Trial Tr. pp.32–39, 1784–91, and secured a jury
instruction about Campbell’s testimony and how it could be considered, R.205, Trial Tr., pp.16–
17, PageID 1862–63. Considering how this video was used at trial, it’s hard to see how the
government’s late disclosure prejudiced Saine in a way that would impact the decision of guilt or
innocence. Indeed, we’ve said that late receipt “during trial did not prejudice” the defendant when
counsel is able to “argu[e] to the jury that [the witness] was not” credible, “cross-examin[e] him
during his testimony,” “and obtain[] an instruction to the jury” about his testimony. Uwazurike,
580 F. App’x at 448.
Saine next argues that the district court erred when it denied her requested jury instruction
about witness Kaylea Campbell.6 Saine requested an instruction that would tell the jury Campbell
had been “promised” leniency from the prosecution in exchange for her testimony and that she
was a drug addict. R.135, Mot. for Jury Inst., p.2, PageID 470. The court rejected the parts about
6 The government urges us to consider this issue waived because Saine did not put it in her list of issues presented. But she raised it below, so we can consider it here.
11 No. 23-5426, United States v. Saine
Campbell being an addict but accepted the portion about the promise of leniency. R.205, Jury Inst.
Tr., pp.1–13, PageID 1847–59.
“Trial courts have broad discretion in crafting jury instructions.” United States v. Kettles,
970 F.3d 637, 646 (6th Cir. 2020) (internal quotation marks omitted). “A district court’s refusal
to deliver a requested instruction is reversible only if that instruction is (1) a correct statement of
the law, (2) not substantially covered by the charge actually delivered to the jury, and (3) concerns
a point so important in the trial that the failure to give it substantially impairs the defendant’s
defense.” United States v. Khalil, 279 F.3d 358, 364 (6th Cir. 2002) (quoting United States v.
Williams, 952 F.2d 1504, 1512 (6th Cir. 1991)).
The court partially granted Saine’s request. And Saine fails to show how the court abused
its discretion. By partially accepting Saine’s proffered instruction, the court “substantially
covered” the issue Saine wanted addressed. Khalil, 279 F.3d at 364. In fact, the jury instructions
did mention the promise of leniency that Saine had requested. And with her requested instruction
given at least partially to the jury, she fails to show how the court’s partial rejection “impair[ed]”
her defense. Id. Indeed, the jury instruction pertained to Campbell, whom Saine’s counsel cross-
examined then discussed in closing arguments. So Saine’s defense was not impaired.
Saine responds by summarily asserting that she “feels confident that prejudice resulted,
since this witness was imperative to the government’s case, and her testimony instrumental in her
convictions on both counts.” Appellant Br. at 35. But there is no discussion of how the outcome
would have been different, how the jury instructions without her requested change did not cover
everything or inaccurately stated the law, or how her defense was impaired without the instruction.
See Khalil, 279 F.3d at 364. Saine’s challenge therefore fails.
12 No. 23-5426, United States v. Saine
C.
Saine also asserts that the court “should have granted a new trial when the Government did
not call a material witness on its witness list”—namely, Lacey Hurst, the Smoky Mountain
employee who assisted Saine. Appellant Br. at 35.
The district court pointed out that Hurst “was not on the witness list provided to the Clerk’s
Office by the Government prior to trial.” R.178, p.9, PageID 1378. So Saine’s claim appears
factually inaccurate. In any event, “when the government opts to disclose a witness list, it is not
required to call all witnesses on the list.” United States v. Vasquez, 672 F. App’x 636, 639 (9th
Cir. 2016). And Saine presents no cases to the contrary. What’s more, the district court correctly
explained that the prosecution’s “decision not to call a witness known to the defense does not
constitute evidence suppression.” United States v. Odum, 878 F.3d 508, 522 (6th Cir. 2017)
(vacated on other grounds by Frazier v. United States, 139 S. Ct. 319 (2018)); R.178, p.9, PageID
1378. Again, the district court got it right.
V.
Saine last challenges her sentence. She believes the “district court erred when it applied
two separate enhancements under the U.S. Sentencing Guidelines which resulted in double
counting.” Appellant Br. at 38. When it calculated Saine’s sentencing range, the court applied
both U.S.S.G. § 2K2.1(b)(1)—because the “offense involved three or more firearms”—and
§ 2K2.1(b)(5)—because Saine had trafficked firearms.7
7 The provision as it existed at the time of Saine’s sentencing called for an enhancement “[i]f the defendant engaged in the trafficking of firearms.” U.S.S.G. § 2K2.1(b)(5) (2021). The commentary explained that (b)(5) applied “[i]f the defendant . . . transported, transferred, or otherwise disposed of two or more firearms to another individual . . . and knew or had reason to believe that such conduct would result in the transport, transfer, or disposal of a firearm to an individual whose possession or receipt of the firearm would be unlawful.” U.S.S.G. § 2K2.1(b)(5)
13 No. 23-5426, United States v. Saine
When we examine a sentence, we look for reasonableness under a “deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007). We must ensure ourselves
that the sentencing court “committed no significant procedural error,” such as improperly
calculating the Guidelines range. Id. at 51.
A “court may impose two enhancements arising from the same conduct, provided the
enhancements ‘penalize distinct aspects of a defendant’s conduct and distinct harms.’” United
States v. Sweet, 776 F.3d 447, 451 (6th Cir. 2015) (quoting United States v. Smith, 516 F.3d 473,
476 (6th Cir. 2008)). Then applying two enhancements to the same conduct will not count as
“impermissible double counting.” See United States v. Duke, 870 F.3d 397, 404 (6th Cir. 2017).
Saine argues that the court double counted U.S.S.G. §§ 2K2.1(b)(1) and 2K2.1(b)(5)
because “[b]oth enhancements require at least 3 firearms and these enhancements both punished
Ms. Saine for transferring possession of more than 2 firearms.” Appellant Br. at 39. Applying the
two enhancements led the district court to calculate a Guidelines range of 33 to 41 months. Saine
contends that without the error, her range would have been 21 to 27 months. And even though the
trial court varied downward below the recommended range, Saine wants the district court to start
over, this time using what she thinks is the correct range.
We’ve already addressed this argument and held that it’s not double counting to apply two
enhancements under § 2K2.1(b) when the defendant meets the requirements of each. See United
States v. Freeman, 640 F.3d 180, 191 (6th Cir. 2011) (citing U.S.S.G. § 2K2.1 cmt. n.13(D)). This
cmt. n.13. The commentary’s understanding is reflected in the 2023 amendments, which modified § 2K2.1(b)(5) to apply if the defendant “transported, transferred, sold, or otherwise disposed of, or purchased or received with intent to transport, transfer, sell, or otherwise dispose of, a firearm or any ammunition knowing or having reason to believe that such conduct would result in the receipt of the firearm or ammunition by an individual who was a prohibited person.” U.S.S.G. § 2K2.1(b)(5)(A)–(B).
14 No. 23-5426, United States v. Saine
makes sense because the enhancements punish different aspects of Saine’s conduct and different
harms. See Sweet, 776 F.3d at 451. One punishes the fact that the crime involved multiple
firearms, U.S.S.G. § 2K2.1(b)(1), which presents a distinct harm given that more guns are more
dangerous than fewer. The other punishes the fact that the guns that she purchased eventually
ended up in the hands of someone whose possession would be unlawful, id. § 2K2.1(b)(5), which
harms society by putting firearms in the hands of people whom the law deems dangerous. See
Smith, 516 F.3d at 476.
VI.
For the reasons set forth above, we AFFIRM.