United States v. Hagman
| Decision Date | 27 January 2014 |
| Docket Number | No. 12-51093,12-51093 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VICTOR LOUIS HAGMAN, III, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court
for the Western District of Texas
Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
Defendant-Appellant Victor Hagman, III ("Hagman") challenges his sentence on the grounds that the district court erroneously calculated his base offense level. Hagman pleaded guilty to a two-count indictment that charged him with being a felon in possession of one firearm and with possessing and bartering one stolen firearm. At sentencing, the district court applied a four-level enhancement pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2K2.1(b)(1)(B), noting that relevant conduct dictated that Hagman bartered between eight and twenty-four firearms. We conclude that this enhancement was applied erroneously. Accordingly, we VACATE Hagman's sentence and REMAND for resentencing.
Hagman, a convicted felon, was an employee of Unkle Dick's Gunsmith Services ("Unkle Dick's") which was owned by Richard Stallcup ("Stallcup"). Hagman alleges that sometime in April 2012, he borrowed a Titan FIE pistol from Unkle Dick's to loan to a friend who needed protection from an abusive ex-boyfriend. After being out of town and away from his store for a few days, Stallcup returned on April 15, 2012, and discovered what he described as "forced entry" into the backdoor of Unkle Dick's. Initially, Stallcup did not notice any missing merchandise. Several days later he realized that a total of twelve firearms were unaccounted for. Stallcup reported the burglary to the police and mentioned that he suspected that his employee, Hagman, played a role in the taking of the firearms. After Stallcup told Hagman that Unkle Dick's had been burglarized, Hagman returned the Titan FIE pistol and claimed to have borrowed it prior to the burglary.
Hagman told Stallcup that he made some inquiries "in the streets" and had information about who had the missing firearms. Hagman warned Stallcup that if the police were to become involved, the firearms would likely never be recovered. Hagman explained that he could help retrieve the missing merchandise but the people who allegedly had the firearms required that Stallcup pay $150 for each of them. Stallcup instructed Hagman to do whatever it took to get the firearms back. Hagman attempted to arrange a transaction between Stallcup and a man who had possession of some of the firearms but was ultimately unable to procure any of them.
In May 2012, a federal grand jury indicted Hagman for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and possessing and bartering a stolen firearm in violation of 18 U.S.C. § 922(j). Count one of the indictment states in relevant part that Hagman:
who having been convicted of a crime punishable by imprisonment for a term exceeding one year . . . did knowingly possess in and affecting commerce a firearm, to wit: a Titan FIE pistol, which had been shipped and transported in interstate and foreign commerce. All in violation of Title 18, United States Code, Section 922(g)(1).
Count two of the indictment states in relevant part that Hagman:
knowingly posses[ed] and barter[ed] in and affecting commerce a firearm, to wit: a Titan FIE pistol, which had been shipped and transported in interstate and foreign commerce, knowing and having reasonable cause to believe it was stolen. All in violation of Title 18, United States Code, Section 922(j).
In addition to the indictment, the government filed a factual basis for Hagman's plea that was signed by Hagman, Hagman's attorney, and the prosecutor. The factual basis for the plea indicated that Hagman took the Titan FIE from Unkle Dick's without permission; the Titan FIE was shipped or transported in foreign commerce; and that Hagman was a convicted felon. The factual basis did not include any information about the burglary, other firearms that were missing from Unkle Dick's, or any other details related to Hagman's efforts to retrieve the missing firearms for his boss, Stallcup. Nevertheless, the United States Probation Office's Presentence Report ("PSR") recommended that four levels be added to Hagman's base offense level because his offenses involved more than eight but less than twenty-four firearms. See U.S.S.G. § 2K2.1(b)(1)(B).
At sentencing, the government argued that Hagman should be accountable for twelve firearms, because it "is just entirely too coincidental" that eleven firearms were missing from Unkle Dick's at the same time Hagman took the Titan FIE pistol. Therefore, according to the government, there was proof by a preponderance of evidence that Hagman was involved in the taking of all twelve firearms. In the same breath, however, the government stated that whether Hagman was involved in the burglary is "murky." Thegovernment admitted that it did not know But, "it's too coincidental for all of this to happen at the same time . . . ."
The district court did not state whether it believed there was proof by a preponderance of the evidence that Hagman was involved in the theft of the eleven missing firearms. Nonetheless, noting that Hagman pleaded guilty to violating § 922(j), which makes it an offense to receive, possess, conceal, store, barter, sell, or dispose of any stolen firearm, the district court found that Hagman's offer to recover the eleven missing firearms for a price constituted "bartering for the[] stolen weapons." Accordingly, the district court found that the four-level sentencing enhancement was appropriate.
Hagman argues on appeal that the district court committed clear error by finding that his offenses involved eight to twenty-four firearms. Hagman claims that there was no evidence to prove that he actually or constructively possessed the eleven firearms that were allegedly stolen and never recovered from Unkle Dick's. Furthermore, Hagman argues that the district court mischaracterized the testimony of FBI Task Force Officer Randy Vest ("Officer Vest") by concluding that Hagman "was bartering for the return of stolen weapons."
On appeal, the government essentially makes three arguments as to why the sentencing enhancement was properly applied in this case. First, the government argues that Hagman had actual possession of the missing firearms because the proximity in time with respect to his taking the Titan FIE and the alleged theft of eleven other firearms is "too coincidental." Secondly, the government argues that Hagman had constructive possession of the missing firearms because he placed himself in the middle of negotiations between Stallcup and the alleged burglars. Therefore, according to the government, hehad access to and control over the firearms. Finally, the government argues that Hagman unlawfully sought to obtain the firearms by making efforts to retrieve them from the alleged burglars.
"[We] review[] de novo the district court's guidelines interpretations and review[] for clear error the district court's findings of fact." United States v. Le, 512 F.3d 128, 134 (5th Cir. 2007). The determination of relevant conduct is a factual finding reviewed for clear error. United States v. Ekanem, 555 F.3d 172, 175 (5th Cir. 2009). "Under the clearly erroneous standard, we will uphold a finding so long as it is plausible in light of the record as a whole." Id. (citation and internal quotation marks omitted). "However, a finding will be deemed clearly erroneous if, based on the record as a whole, we are left with the definite and firm conviction that a mistake has been committed." Id. (citation and internal quotation marks omitted). "The government must prove sentencing enhancements by a preponderance of the evidence." United States v. Juarez, 626 F.3d 246, 251 (5th Cir. 2010).
U.S.S.G. § 2K2.1(b)(1) is a numerical scheme that adjusts a defendant's offense level based upon the number of firearms associated with his crimes of conviction; i.e., the higher the quantity of firearms, the greater the offense level. The commentary to this section states that "[f]or purposes of calculating the number of firearms under subsection (b)(1), count only those firearms that were unlawfully sought to be obtained, unlawfully possessed, or unlawfully distributed." U.S.S.G. § 2K2.1(b)(1) cmt. n.5.1 Here, the government does notallege that Hagman unlawfully distributed any firearms. Therefore, our review is limited to the question of whether the government proved by a preponderance of evidence that Hagman possessed or sought to obtain eight to twenty-four firearms.
We begin our analysis with the issue of possession. Possession of a firearm may be actual or constructive. United States v. Patterson, 431 F.3d 832, 837 (5th Cir. 2005). To prove that Hagman had actual possession of the eleven missing firearms, the government must demonstrate that he exercised direct physical control over them. See United States v. Jones, 484 F.3d 783, 787 (5th Cir. 2007). To prove that Hagman had constructive possession of the eleven missing firearms, the government must show that he exercised dominion or control over the firearms or the area in which they were discovered. Id.
In this case, we look to two sources of information in the record to aid in our determination as to the number of firearms Hagman actually or constructively possessed: 1) the charging documents; and 2) Officer Vest's testimony regarding what Stallcup told him about the number of firearms that were missing from his inventory. The charging documents only reference one firearm; the Titan FIE. This fact is significant because it demonstrates that the sentencing enhancement...
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