United States v. Fields
| Decision Date | 30 April 2015 |
| Docket Number | No. 14-10013,14-10013 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DWAYNE FIELDS, a.k.a. New York, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
D.C. Docket No. 1:12-cr-00200-AT-JFK-1
Appeal from the United States District Court for the Northern District of Georgia
Before HULL, ROSENBAUM and FAY, Circuit Judges.
Dwayne Fields appeals his 10-year imprisonment sentence for dealing firearms without a license. We affirm Fields's sentence but vacate and remand to correct a clerical error in the judgment.
A federal grand jury charged Fields and six others, Kenneth Porter, Khalif Jackson, Mosezell Kelly, Niqua Brown, Delvin Sloan, and Keilen Adrine, in an eleven-count superseding indictment. Fields was charged with dealing firearms without a license, in violation of 18 U.S.C. § 922(a)(1)(A) (Count 1); making false statements to a federally licensed firearms dealer, in violation of 18 U.S.C. § 924(a)(1)(A) (Count 5); knowingly possessing and selling a stolen firearm, in violation of §§ 922(j) and 924(a)(2) (Count 6); and knowingly possessing a rifle with a barrel length of less than 16 inches that was not registered to him, in violation of 26 U.S.C. §§ 5841, 5845(a)(3), 5861(d), and 5871 (Count 7). Fields pled guilty to all counts without a plea agreement.
According to the presentence investigation report ("PSI"), beginning on October 1, 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives and the Atlanta Police Department ("APD") operated an undercover warehouse in Atlanta, Georgia. From January 12 through June 26, 2012, Fields and his codefendants sold approximately 38 firearms and ammunition to an APDundercover officer in some 30 separate transactions, some of which took place at the undercover warehouse.
On January 12, 2012, an undercover officer and a confidential informant met with Fields at the Old National Discount Mall in Atlanta and asked about purchasing a firearm. Outside of the mall, Fields sold the undercover officer a revolver loaded with five rounds of ammunition for $150.
On January 18, 2012, an undercover officer met with Fields and Antoine Smith, who drove the car in which the pair arrived at the warehouse. Smith carried a potato-chip bag, from which he removed three plastic bags containing approximately 259.9 grams of marijuana. Smith handed the bags of marijuana to the undercover officer; after weighing and inspecting the bags, the officer gave Smith $950. When the transaction was complete, Smith and Fields left the warehouse.
Also on January 18, Fields and codefendant Jackson met with two undercover officers at the warehouse. Fields carried a .410 caliber shotgun, and Jackson carried a Ruger .357 pistol. Fields sold both guns to the undercover officer. The Ruger .357 had an obliterated serial number. At the meeting, Fields told the officers he had no felony convictions, and he offered to straw purchase firearms for the undercover officers.
On February 13, 2012, Fields sold two shotguns to an undercover officer, one of which had been reported stolen. Fields brought the two guns to the warehouse and handed them to the officer. The officer asked Fields if the guns were stolen, and Fields stated he did not believe they were stolen. The officer told Fields that one of the shotguns did not have a serial number, and Fields responded, "Don't your people just resell them when they get to Cali?"
On February 16, 2012, Fields sold another firearm to the undercover officer, and he again offered to straw purchase firearms for the officer. The undercover officer told Fields to be ready to make a straw purchase the next day. Meanwhile, on February 15, 2012, undercover officers went to the Forest Park Army-Navy Store, Inc., in Forest Park, Georgia and met with an employee, M.T., who agreed to facilitate an undercover straw purchase. The officers selected an assault rifle and a pistol for the purchase.
On February 22, 2012, an undercover officer called Fields, and Fields stated he was willing to purchase the two guns that the officer had selected. On February 23, 2012, Fields and undercover officers went to the Forest Park Army-Navy Store. M.T. handed the pistol to an undercover officer and the rifle to Fields. M.T. told Fields to fill out ATF Form 4473 and advised Fields not to "fuck up" on the form, or he would not be approved. Fields read aloud question 11K from Form 4473, which asked, "Are you an alien illegally in the United States?" The undercoverofficer stated Fields was not an illegal alien, but the undercover officer was. M.T. walked Fields through the rest of Form 4473 and told him not to worry about question 12, which asked if a non-immigrant-alien purchaser fell within any exception set forth in the instructions. The undercover officer then gave $1,153.46 cash to M.T. to complete the transaction for the two weapons. Fields and the officer exited the store, with Fields carrying the pistol, and the officer carrying the rifle. Fields was paid $250 for the straw purchase.
On June 1, 2012, Fields sold three firearms and ammunition to the undercover officer. After that, the undercover officer asked Fields if he or anyone he knew had taken part in robberies. Fields stated both he and other individuals he knew were involved in the robberies. Fields said he would contact and bring to the officer individuals to discuss the robbery of a drug-stash house. The officer advised that the stash house was guarded with armed security around the clock.
On June 4, 2012, Fields and codefendant Brown went to the warehouse together; Brown sold two firearms, one of which was stolen, to an undercover officer. At that time, the officer asked Fields if he had talked to anyone about the planned drug-stash-house invasion. Fields advised he had spoken to codefendant Brown and others. Asked if they were still willing to pursue the planned robbery, both Brown and Fields answered affirmatively. Brown asked the officer if theindividuals, who were supplied the drugs, were the same individuals to whom the officer had sold the firearms, and the officer responded affirmatively.
Fields also sold a Ruger .22 caliber rifle with a 12.5-inch barrel to an undercover officer. The barrel and overall length of the .22 caliber rifle qualified it as a National Firearms Act ("NFA") weapon requiring registration, although the rifle was not registered.
Of relevance to this appeal, Fields's PSI shows a four-level enhancement under U.S.S.G. § 2K2.1(b)(4), because one of the guns he sold on January 18, 2012, had an obliterated serial number. He also received a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) for engaging in the trafficking of firearms because, according to a law enforcement agent, Fields believed that he was selling the firearms to a convicted felon, who was shipping them to California. He received an additional four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B), because he used or possessed the firearm with knowledge or reason to believe that it would be used in connection with another felony offense, since he was present when Brown asked and was told the guns were being supplied to drug traffickers. Fields received a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b). His total offense level was 35. Fields had one criminal history point and was assigned a criminal history category of I.
Prior to the sentencing hearing, Fields objected to the four-level enhancements under § 2K2.1(b)(4) for an obliterated serial number and § 2K2.1(b)(6)(B) for transferring a firearm with the knowledge or belief that it would be used in connection with another felony. He also contended he was entitled to a two-level, minor-role reduction under U.S.S.G. § 3B1.2(b). At the sentencing hearing, Fields raised an additional objection to the four-level § 2K2.1(b)(5) enhancement for trafficking of firearms.
At Fields's sentencing hearing, Officer Stephen McKesey, the lead undercover officer in Fields's case, testified he posed as a member of the Crip gang, who had moved to Georgia from the Compton, California area. The first time he met Fields, Officer McKesey told Fields he was member of the Crip gang, had a felony record, and had moved to Georgia to obtain guns to sell to his fellow gang members in California. Fields told McKesey he would help him. McKesey further showed Fields FedEx boxes, indicating the guns were shipped to California and demonstrated how he disassembled the guns for shipping.
Fields testified during the hearing. After his direct and cross-examinations, the district judge asked Fields whether Officer McKesey had advised him the guns were being purchased on behalf of the Crips and sent to California. Fields responded during his third meeting with Officer McKesey that McKesey had statedhe was reselling the guns in California. Fields, however, said he did not know the guns were for gang members. On re-cross examination, Fields acknowledged, when he sold the guns to Officer McKesey, he believed McKesey was a convicted felon.
Regarding the § 2K2.1(b)(6) enhancement for possession of a firearm in connection with another felony, Fields argued his connection to the alleged felony, supplying guns to drug traffickers, was too tenuous to support the enhancement. Later in the sentencing hearing, the government declined to move for a one-level reduction for acceptance of responsibility under § 3E1.1(b), because Fields had violated the conditions of his pretrial release by failing to (1) report in person and via telephone, as required; (2) enroll in a General Education Development program; and (3) submit a monthly report.
The district judge overruled all of Fields's Sentencing Guidelines objections. Regarding the § 2K2.1(b)(4)(B) enhancement for an obliterated serial number, the judge determined, under the circumstances, Fields would not...
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