U.S. v. Juarez

• Decision Date: 12 November 2010
• Docket Number: No. 09-40861,09-40861
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mireya Rivera JUAREZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

626 F.3d 246

UNITED STATES of America, Plaintiff-Appellee,

v.Mireya Rivera JUAREZ, Defendant-Appellant.

No. 09-40861.

United States Court of Appeals,Fifth Circuit.

Nov. 12, 2010.

Steven Thomas Schammel, Amy Howell Alaniz, Asst. U.S. Attys., McAllen, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Laura Fletcher Leavitt, Margaret Christina Ling, Molly Estelle Odom, Asst. Fed. Defenders, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, CLEMENT and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Mireya Rivera Juarez pleaded guilty, pursuant to a written plea agreement, to one count of making a false statement to a federally licensed firearms dealer in violation of 18 U.S.C. §§ 924(a)(1)(A) and (a)(2). Juarez now appeals her sentence, arguing that the district court erred when it applied two four-level enhancements under U.S. Sentencing Guidelines (U.S.S.G.) § 2K2.1(b)(5) and § 2K2.1(b)(6). For the reasons discussed below, we affirm.

I

The underlying facts of this case are undisputed. Over an approximately thirteen-month period, Juarez, a forty-four year old naturalized United States citizen with no prior criminal history, purchased twenty-five firearms for a man known to her only as "El Mano." The majority of these firearms were military-style assault weapons, including AK-47 and AR-15 assault rifles, and authorities ultimately discovered two of the purchased firearms—a Colt .38 caliber pistol and a Bushmaster .223 caliber rifle—in the possession of gang members in Mexico.

Juarez began making these purchases after meeting "El Mano" at the Family Center in Roma, Texas. Juarez approached him to request money for taxi fare, and "El Mano" asked Juarez if she would be willing to purchase firearms in exchange for money. Juarez agreed.

Juarez's purchases for "El Mano" occurred in the following manner. "El Mano" would contact Juarez by cell phone and instruct her to meet him at the Family Center. He would then give her money and lend her his vehicle, which she would use to drive to a gun store. Juarez would purchase the firearms that "El Mano" had specified, naming herself on ATF Form 4473 as the actual buyer of the firearms and providing a false address. Juarez would then drive back to the Family Center, transfer the firearms to "El Mano," and receive $200 for each firearm that she purchased. This arrangement ended when "El Mano" informed Juarez that there would be no further purchases because law enforcement was "too hot."

ATF agents began investigating Juarez after receiving a tip that she had purchased several highly trafficked firearms. Juarez was ultimately charged by indictment with three counts of making false statements to federally licensed firearms dealers, in violation of 18 U.S.C. §§ 924(a)(1)(A) and (a)(2). She pleaded guilty to one count pursuant to a written plea agreement, and the district court ordered the preparation of a presentence investigation report (PSR).

The PSR assigned Juarez a base offense level of twelve. Juarez then received a six-level increase because the offense involved twenty-five to ninety-nine firearms and a two-level reduction for acceptance of responsibility, which left Juarez with a total offense level of sixteen. After combining Juarez's offense level with her category I criminal history, her guidelines range of imprisonment was twenty-one to twenty-seven months.

The Government filed written objections to the PSR. Specifically, the Government argued for two separate four-level increases in Juarez's base offense level, pursuant to U.S.S.G. § 2K2.1(b)(5) and § 2K2.1(b)(6). The § 2K2.1(b)(5) enhancement applies to a defendant convicted of a firearms offense who "engaged in the trafficking of firearms."¹ The application notes to the guidelines provide that the enhancement applies when the defendant

(i) transported, transferred, or otherwise disposed of two or more firearms to another individual, or received two or more firearms with the intent to transport, transfer, or otherwise dispose of firearms to another individual; and

(ii) knew or had reason to believe that such conduct would result in the transport, transfer, or disposal of a firearm to an individual—

(I) whose possession or receipt of the firearm would be unlawful; or(II) who intended to use or dispose of the firearm unlawfully. ²

The § 2K2.1(b)(6) enhancement applies "[i]f the defendant used or possessed any firearm ... in connection with another felony offense; or possessed or transferred any firearm ... with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense."³

The Government argued that the § 2K2.1(b)(5) enhancement should apply to Juarez because

[t]he types of the weapons Juarez purchased, coupled with Juarez's statement that "El Mano" said she could not purchase any more firearms because law enforcement was "too hot," and her proximity to the U.S.-Mexican border and its associated violence leads to the obvious conclusion that she should have had reason to believe that the weapons would be transported, transferred, or disposed of to individuals in Mexico, a disposition which would have been unlawful.

Additionally, the Government noted that authorities discovered two of the firearms that Juarez purchased in the possession of gangs in Mexico. The Government also argued that the same facts supported the application of the § 2K2.1(b)(6) enhancement. The probation office ultimately filed an addendum to the PSR in which it stated that it did not enhance Juarez's offense level under either § 2K2.1(b)(5) or § 2K2.1(b)(6) because there was insufficient evidence to conclude that the enhancements applied, and the office deferred further consideration of the issue to the district court.

The district court initiated Juarez's sentencing hearing by obtaining Juarez's affirmance that she had reviewed the PSR with her attorney and that everything in the PSR was factually correct. The district court also granted Juarez an additional one-level reduction in her offense level based on her acceptance of responsibility. The district court then turned to the Government's argument regarding the § 2K2.1(b)(5) and § 2K2.1(b)(6) enhancements and concluded that both applied, explaining:

It just seems to me that you would have to be deliberately blind to the circumstances if we—our proximity to the border, the substantial drug traffic that is common knowledge to any member of the community, the violence associated with that, just south of our border, the types of weapons that are being involved here—assault, military style, automatic weapons, the nature in which she's being asked to purchase these, as a straw person, somebody who goes only by a nickname, and the fact that she leaves them in a truck, gets paid, walks away from the truck, that the circumstances of that are obvious, I think, to anyone who opens their eyes to the situation to know that these drugs [sic] are being taken into Mexico to be used for unlawful purposes, and of course, the mere transporting them into Mexico is unlawful ....

* * *

So I can prove based on those obvious circumstances that the trafficking enhancement is appropriately assessed, as well as the enhancement for transferring these with reason to believe that they would be possessed in connection with another felony offense, so both of those enhancements are justifiably assessed.

In reaching its decision, the district court did not consider the statement by "El Mano" to Juarez—that Juarez could no longer purchase firearms for him because law enforcement was "too hot"—as the statement occurred after Juarez's final purchase and thus could not support the enhancements because it did not evidence Juarez's knowledge at the time she purchased the firearms. The district court also granted Juarez, at her request, a two-level reduction because it found that she was a minor participant.

With the one-level reduction for acceptance of responsibility, the two-level minor participant reduction, the four-level enhancement under § 2K2.1(b)(5), and the four-level enhancement under § 2K2.1(b)(6), Juarez's revised offense level was twenty-one. This resulted in a guidelines range of thirty-seven to forty-six months, and the district court sentenced her to thirty-seven months of imprisonment. On the Government's motion, the district court dismissed the remaining counts of the indictment. This appeal followed.

II

We first consider the district court's decision to apply the § 2K2.1(b)(5) trafficking enhancement to Juarez. "We review the district court's interpretation or application of the Sentencing Guidelines de novo and its factual findings for clear error."⁴ A district court may draw reasonable inferences from the facts when determining whether an enhancement applies, and we review those inferences for clear error.⁵ The government must prove sentencing enhancements by a preponderance of the evidence.⁶

As relevant here, the § 2K2.1(b)(5) enhancement applies where the defendant (1) "transported, transferred, or otherwise disposed of two or more firearms to another individual" and (2) "knew or had reason to believe that such conduct would result in the transport, transfer, or disposal of a firearm to an individual ... who intended to use or dispose of the firearm unlawfully." ⁷ Juarez concedes that she transferred two or more firearms to "El Mano," but she contends that the record is devoid of evidence that she knew or had reason to believe that "El Mano" intended to use or dispose of those firearms unlawfully. Thus, she argues, the Government failed to establish the second requirement for the § 2K2.1(b)(5) enhancement.

A

Before addressing the specifics of Juarez's argument, we note a preliminary issue—the parties appear to dispute whether we should review the district court's decision to apply the § 2K2.1(b)(5) enhancement under the de novo or clear...