U.S. v. Martin

• Decision Date: 11 March 1996
• Docket Number: D,No. 848,848
• Citation: 78 F.3d 808
• Parties: UNITED STATES of America, Appellee, v. Raul E. MARTIN, Defendant, Michael J. Thomas, Defendant-Appellant. ocket 95-1425.
• Court: U.S. Court of Appeals — Second Circuit

Page 808

78 F.3d 808

UNITED STATES of America, Appellee, v. Raul E. MARTIN, Defendant, Michael J. Thomas, Defendant-Appellant.

No. 848, Docket 95-1425.

United States Court of Appeals, Second Circuit.

Argued Jan. 16, 1996.

Decided March 11, 1996.

David C. Sleigh, St. Johnsbury, VT (Sleigh & Williams, St. Johnsbury, VT, of Counsel), for Defendant-Appellant, Michael J. Thomas.

William B. Darrow, Assistant United States Attorney for the District of Vermont (Charles R. Tetzlaff, United States Attorney, and David V. Kirby, Assistant United States Attorney for the District of Vermont, of Counsel), for Appellee, United States of America.

Before: NEWMAN, Chief Judge, MAHONEY and FRIEDMAN, ^* Circuit Judges.

FRIEDMAN, Circuit Judge:

This is a Sentencing Guidelines case in which the appellant Thomas challenges the sentence imposed following his conviction under a guilty plea of conspiring to violate federal firearms laws. He contends that the district court erred by (1) enhancing his sentence because he had reason to believe that the firearms he sold would be used in other felony offenses, (2) refusing to reduce his sentence because he was a minor participant in the offense, and (3) refusing to depart downward from the guideline range to reflect his family and community ties and activities. We affirm.

I.

A. The facts relating to Thomas' offense, as developed at the sentencing hearing, are basically undisputed.

At the time of the events involved, Thomas was a federally-licensed firearms dealer, who conducted his business at a store in a small town in upstate New Hampshire. Such dealers may sell and transfer firearms only to persons who reside in the state where their place of business is located. 18 U.S.C. § 922(b)(3) (1988). Dealers are required to maintain detailed records of their firearms transactions. See 18 U.S.C. § 923(g)(1)(A) (1988); 27 C.F.R. §§ 178.121-.129 (1991). Failure to do so, or the making of false entries in those records, is unlawful and subject to criminal penalties. 18 U.S.C. § 922(m), 924(a) (1988 & Supp. III 1991).

In late 1991 and early 1992, Thomas sold more than 100 handguns to three men, Velez, Nieves and Martin, at least one of whom was from New York City. These customers brought the guns back to New York City and illegally sold them on the street to drug traffickers. Most of these sales--more than 100--were made during the last three months of 1991. Thomas sold 87 handguns to these three individuals between October 1, 1991 and February 28, 1992. In December 1991, Thomas sold them approximately 50 handguns. From December 12 to 15, he sold Velez 18 firearms.

Almost all the weapons he sold to these three individuals were low-grade, easily concealable, inexpensive semi-automatic pistols. Many of the pistols were the same make and model, including 18, 14, and 12 of 3 particular weapons.

Velez directly purchased most of the pistols for cash. He made frequent visits to Thomas' shop, often ordering guns which he picked up on his next visit. At some point in their dealings Thomas became aware that Velez was from New York City, even though he had a Vermont drivers license (as did the other two). He also knew that Velez was taking the guns to New York City.

Thomas made numerous false entries in the records he was required to keep. For example, he broke down into separate sales on different days a single sale of a number of guns. His records also falsely stated that the guns were being sold by a gun dealer in Vermont, although he actually sold them from his New Hampshire store.

The case agent from the Bureau of Alcohol, Tobacco and Firearms assigned to this case stated at the sentencing hearing that 28 of the guns Thomas had sold to the three had been recovered in New York City, New Jersey and Puerto Rico, "[i]n circumstances ranging from criminal possession, assault, robbery, narcotics search warrant, attempted murder, criminal shootings."

B. Thomas pleaded guilty in the United States District Court for the District of Vermont to one count of an indictment charging him with conspiring to violate various federal firearms laws, in violation of 18 U.S.C. § 371 (1988).

After an evidentiary hearing, the district court calculated Thomas' sentence under the Sentencing Guidelines as follows: the base offense level for conspiracy to violate federal firearms laws was l2. U.S. Sentencing These calculations produced an offense level of 20, with a guideline range of 33 to 41 months imprisonment. The court sentenced Thomas to 33 months.

                Comm'n, Guidelines Manual § 2K2.1(a)(7) (1994).   The court increased the base level by 6 because the offense involved more than 50 firearms, see id.  §  2K2.1(b)(1)(F), and by 4 more because Thomas "transferred firearms with reason to believe that they would be used in connection with another felony offense."   See id.  §  2K2.1(b)(5).   The court reduced the offense level by 2 for acceptance of responsibility.   See id.  §  3E1.1(a).   It denied an additional 2 point reduction for Thomas' having been a minor participant, finding that he was not.   See id.  §  3B1.2(b).   Finally, the court declined to depart downwardly from the guideline range for Thomas' role in the community and his being a good family man, because "there has to be more than just being a good family man and being a person who participates in activities in their community."
                

II.

Section 2K2.1(b)(5) of the Guidelines provides for a four-level enhancement of offense level

[i]f the defendant ... possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.

Id. § 2K2.1(b)(5). Application Note 18 to that section states that "[a]s used in subsection[ ] (b)(5) ... 'another felony offense' ... refer[s] to offenses other than explosives or firearms possession or trafficking offenses." Id. § 2K2.1, Application Note 18.

Subsection (b)(5) was added to the Guidelines in 1991 to "reflect increased concern about firearms, crimes of violence, and drug offenses. Needless to say, the unlawful use or possession of firearms represents an ever increasing assault on public safety." United States v. Condren, 18 F.3d 1190, 1198 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 161, 130 L.Ed.2d 99 (1994). Since, as the district court found, the conspiracy for which Thomas was convicted continued into 1992, subsection (b)(5) applied. U.S. Sentencing Comm'n, Guidelines Manual § 1B1.11 & Application Note 2 (1994); United States v. Gigante, 39 F.3d 42, 50 (2d Cir.1994).

In ruling that Thomas "transferred firearms with reason to believe that they would be used in connection with another felony offense," the district court explained:

In making that determination, it cannot be ignored, as has been pointed out here, that there were over 128 of these handguns sold to these three individuals. 87 of the 93 guns that you sold during that period of time were sold to these three people.

Furthermore, the evidence was that you knew at some point that Mr. Velez, at least, was not a Vermont resident, that he was from New York City. I find it hard to believe, Mr. Thomas, that you had no intimation or no reason to believe that these guns weren't going to be used in some illegal manner.

Furthermore, the evidence that you falsified your records, indicates to me that, again, you had some knowledge that there were--there was something going on with these guns once they left your establishment which would--which would make them being used in illegal activity.

The guidelines indicate that the plain meaning should be applied in this case. And it is my finding that the plain meaning indicates that you had reason to believe that these firearms could be used in another illegal activity.

A. We review the district court's reason-to-believe finding for clear error. United States v. Dodge, 61 F.3d 142, 146 (2d Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 428, 133 L.Ed.2d 343 (1995). There was sufficient evidence to support the finding that Thomas had reason to believe that the guns would be used in connection with another felony offense, and that finding was not clearly erroneous.

As discussed in part I above, three men, at least one of whom was from New York City, repeatedly visited a small town in upstate New Hampshire, where they purchased a large number of handguns. In a On these facts the district court was justified in concluding that Thomas had reason to believe that the guns would be used in committing other non-firearms felonies. There was no indication that the purchasers were gun collectors or planning to keep the guns for their personal use. The large number of guns involved, the types of weapons, and the unusual circumstances surrounding their purchase all indicated that the guns were being acquired for resale. Since Thomas was aware that Velez was from New York City, that was the obvious place of resale, and guns of that type and quality most probably would be sold there on the street. As a firearms dealer, Thomas had every reason to believe that the guns he sold these three purchasers would be used to commit other felonies after they had been resold on the streets of New York--as the record shows they were.

                three-month period, they purchased 87 weapons, 50 of them in a single month.   In a four-day period Thomas sold Velez 18 firearms.   Almost all of the weapons he sold them were handguns, mainly low-grade, inexpensive, semi-automatic weapons.   Many of them were of the same easily concealable make and model.   The three purchasers returned regularly to Thomas' store to purchase the firearms, sometimes picking up weapons they had ordered on a previous visit for future delivery.   Thomas knew that Velez was from New York City and transported the firearms back there.   Thomas made false entries in the firearms records he was required to keep, in order to conceal his illegal transactions
                

"Section 2K2.1(b)(5) does...