United States v. Wagner

467 F.3d 1085, 2006 U.S. App. LEXIS 27457, 2006 WL 3197710
CourtCourt of Appeals for the Seventh Circuit
DecidedNovember 7, 2006
DocketNo. 06-1644
StatusPublished
Cited by31 cases

This text of 467 F.3d 1085 (United States v. Wagner) 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. Wagner, 467 F.3d 1085, 2006 U.S. App. LEXIS 27457, 2006 WL 3197710 (7th Cir. 2006).

Opinion

BAUER, Circuit Judge.

Eric Wagner was charged with eight counts of selling a firearm to a convicted felon in violation of 18 U.S.C. § 922(d)(1) and eight counts of distributing marijuana in violation of 21 U.S.C. § 841(a)(1). On October 20, 2005, Wagner pleaded guilty to one count of selling a firearm to a convicted felon and one count of distributing marijuana. The remaining counts were dismissed. The district court sentenced Wagner to 30 months imprisonment. In this appeal, Wagner contends that the district court erred when it found that he had transferred a firearm with knowledge, intent, or reason to believe that it would be used or possessed in connection with an[1087]*1087other felony offense and increased his offense level by four levels pursuant to United States Sentencing Guideline § 2K2.1(b)(5). We affirm.

I. Background

Wagner worked at Wagner Hunting and Fishing Supplies in Freeport, Illinois. Wagner admits that on eight separate occasions he sold firearms to a confidential informant (“Cl”) who he knew had been convicted of a felony. These transactions occurred between November 23, 2004 and April 22, 2005. In addition to selling the Cl nine firearms, Wagner sold marijuana to the Cl and Special Agent (“SA”) Richardson of the Bureau of Alcohol, Tobacco, Firearms & Explosives.

Wagner and the government entered into a plea agreement, and the parties agreed that (1) the base offense level was 14 pursuant to U.S.S.G. § 2K2.1(a)(6)(b) because the defendant violated 18 U.S.C. § 922(d); (2) the base offense level increased four levels pursuant to U.S.S.G. § 2K2.1(b)(l)(b) because the offense involved between 8 and 24 firearms; and (3) a three-level reduction was applicable pursuant to U.S.S.G. §§ 3El.l(a) and (b) because the defendant had accepted responsibility and timely expressed his intent to enter a plea of guilty. However, the United States also pursued the application of a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5), claiming that Wagner transferred a firearm with knowledge or reason to believe that it would be used or possessed in connection with another felony offense. Wagner requested a total offense level of 15 and reserved the right to challenge the § 2K2.1(b)(5) enhancement at sentencing.1

The district court ordered that a Presen-tence Investigation Report (“PSR”) be prepared prior to Wagner’s sentencing hearing. The PSR’s calculations were consistent with those contained in the plea agreement. However, the PSR concluded that there was insufficient evidence to apply the four-level enhancement pursuant to § 2K2.1(b)(5).

At the sentencing hearing on February 3, 2006, the government called SA Richardson to testify regarding transactions that took place on December 16, 2004, February 23, 2005, and March 9, 2005. During these transactions, the Cl purchased firearms from Wagner while wearing a concealed recording device. The government also introduced partial recordings and transcripts from these transactions. The transcript of the December 16, 2004 firearm transaction indicates that the Cl said to Wagner, “I file the numbers off when I get rid of 'em.’ ” SA Richardson testified that Wagner then nodded his head in agreement. On this same day, the Cl told Wagner that he “made eighty bucks from that last one.” Wagner responded by asking the Cl, “What are ya doin’? Sellin’ ‘em on the street?’ ”

The transcripts from February 23, 2005 indicate that the Cl had told Wagner that he knew a drug dealer in Rockford who wanted “a couple of nines just to watch his shit” and that the drug dealer was going to give the Cl “an ounce of coke for it.” SA Richardson testified that he had observed Wagner nodding his head in agreement when the Cl told Wagner that he was going to exchange the gun for an ounce of cocaine. The March 9, 2005 transcript indicates that the Cl told Wagner that a drug dealer asked him, “can you get me another [gun with laser] ... I got another [1088]*1088boy selling some shit who would sure like to have one, too.” On each of these occasions, Wagner sold the Cl a firearm after the Cl made the statements.

At the sentencing hearing, SA Richardson testified that the Cl and Wagner knew each other prior to the investigation and that the government had been concerned with an entrapment defense. SA Richardson testified that he had instructed the Cl to tell Wagner that he was filing the serial numbers off of the firearms and trading the firearms for narcotics with drug dealers. These statements were intended “to show that the firearms weren’t going to be just for him, to show that the Cl was reselling the firearms to other individuals, to show that it wasn’t just a friend doing a friend a favor to buy a gun.” SA Richardson also testified that he had instructed the Cl to make these statements to avoid raising Wagner’s suspicion as to why the Cl was purchasing multiple similar handguns.

SA Richardson also testified that when he first spoke with the Cl, the Cl had informed him that he had purchased firearms previously from both Wagner and Wagner’s father. SA Richardson asserted that in addition to avoiding an entrapment defense, the government continued to purchase firearms to determine if Wagner’s father, the owner and licensee of the store, was involved in the sale of firearms to prohibited persons. SA Richardson also acknowledged that he knew of the sentencing enhancements for selling eight or more firearms to a convicted felon and for transferring a firearm with reason to believe that it would be used in another felony offense. SA Richardson testified that when he conducts an investigation, especially of individuals working out of a federal firearms business, in addition to obtaining sufficient evidence to convict, his motive is to secure the highest possible sentence.

After SA Richardson finished testifying, Wagner called the Cl as a witness. The Cl testified that it was his understanding that SA Richardson had instructed him to make the statements to increase Wagner’s sentence. The Cl believed that Wagner had heard or understood him when he made the different statements but did not seem to care what the Cl did with the guns. The Cl testified that Wagner’s primary concern was to complete each transaction by filling out the necessary paperwork, collecting the money, and giving him the gun.

After hearing the recordings, reading the transcripts, and listening to the testimony from SA Richardson and the Cl, the district court held that there was sufficient evidence to apply a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(5). The district court also found that the conduct of the government was not sentencing manipulation. But the district court judge cautioned “If I felt — and I want to emphasize this to the law enforcement — if I felt that there was sentencing enhancement investigations on a regular basis, I would not allow it. Not in my court.” The district court calculated the total offense level to be 19 and sentenced Wagner to 30 months imprisonment, followed by 30 months of supervised release. The court also ordered Wagner to pay a special assessment of $200 and a fine of $25,000. This timely appeal followed.

II. Discussion

Wagner contends that the district court erred in applying the U.S.S.G.

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Bluebook (online)
467 F.3d 1085, 2006 U.S. App. LEXIS 27457, 2006 WL 3197710, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-wagner-ca7-2006.