United States v. McKenzie

• Decision Date: 03 May 2022
• Docket Number: 21-5295
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Dominique MCKENZIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

33 F.4th 343

UNITED STATES of America, Plaintiff-Appellee,

v.Dominique MCKENZIE, Defendant-Appellant.

No. 21-5295

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 3, 2022

ON BRIEF: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Brent N. Jones, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Before: ROGERS, KETHLEDGE, and MURPHY, Circuit Judges.

OPINION

MURPHY, Circuit Judge.

Federal law makes it a crime for so-called "straw purchasers" to tell licensed firearms dealers that they are buying a firearm for themselves when, in fact, they are buying it for someone else. 18 U.S.C. § 922(a)(6) ; Abramski v. United States , 573 U.S. 169, 179–89, 134 S.Ct. 2259, 189 L.Ed.2d 262 (2014). Straw purchasers sometimes engage in these stealth transactions because the true buyers (for example, felons) cannot buy guns themselves. 18 U.S.C. § 922(g)(1). These types of straw purchases raise heightened safety concerns, so the Sentencing Guidelines instruct courts to increase a straw purchaser's potential sentence in certain cases if the purchaser had "knowledge" or "reason to believe" that the true buyer could not lawfully possess the firearm. U.S.S.G. § 2K2.1(a)(4)(B).

What does it take for a straw purchaser to have "reason to believe" that the true buyer cannot lawfully possess the gun? This case raises that question. Dominique McKenzie admits that he was a straw purchaser for two individuals but disputes that he had "reason to believe" that they could not possess firearms. We interpret that phrase—one commonly used in the probable-cause context—to require, at most, that a straw purchaser know of facts creating a fair probability that the true buyer could not possess a firearm. And we agree with the district court that McKenzie had knowledge of such facts in this case. We thus affirm its use of this guideline.

I

Between October 2018 and March 2019, McKenzie purchased 13 firearms from several federally licensed dealers in and around Knoxville, Tennessee. By early 2019, his conduct had caught the attention of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). McKenzie's purchases suggested to the agency that he might be a straw purchaser—that is, someone who buys guns for others.

The ATF began to monitor McKenzie. On February 26, 2019, he traveled to Crossroads Firearms to purchase a Glock 27. To obtain this semiautomatic pistol, McKenzie signed a federal form acknowledging that he was not purchasing it for someone else. He then headed straight to a nearby Applebee's parking lot, where officers watched him meet with Lucky Clark. McKenzie gave Clark the Glock 27 in exchange for cash. The next day, officers arrested Clark and seized the newly purchased handgun.

The officers later obtained a search warrant to review the text messages from Clark's phone. These messages revealed discussions between Clark and McKenzie during the week before the purchase. Clark first texted a different person to obtain McKenzie's phone number. After he successfully contacted McKenzie, the pair conversed about the type of handgun that Clark wanted, its anticipated price, and the stores at which McKenzie might buy it. McKenzie also made clear that Clark would have to pay him a $60 purchaser's fee in addition to the firearm's cost (which ultimately turned out to be $450). The parties never discussed why Clark did not just buy the gun himself.

McKenzie made a second straw purchase a month later. On March 29, he traveled to Shoot Point Blank to buy a Micro Draco, another semiautomatic pistol. McKenzie again signed the form indicating that he was not a straw purchaser, but he could not leave with the gun due to a delay in his background check. After he returned to pick it up the next day, officers watched him travel to a nearby gas station. There, he met Jeffrey Lee Schwartz and gave Schwartz the gun.

Officers conducted a traffic stop of Schwartz as he drove away. They recovered the firearm and some marijuana. While at the scene, Schwartz told officers that McKenzie had bought the gun for him after he had unsuccessfully tried to buy one for himself. As Schwartz spoke with the officers, McKenzie approached on foot. Pretending to still own the gun, McKenzie asked for it back and said that he had given it to Schwartz for safekeeping after a burglary at his home. McKenzie denied selling the gun to Schwartz.

Two days later, ATF agents interviewed Schwartz about these events. Schwartz explained that he knew McKenzie only from seeing him at nightclubs but had heard that McKenzie would buy a gun for anyone. Schwartz had initially contacted McKenzie in January 2019 about purchasing a handgun for Schwartz after he received his tax refund. The day before the March 29 purchase, Schwartz had reconnected with McKenzie on Snapchat while traveling to a gun store himself. Schwartz told the ATF agents that he asked McKenzie: "if for some reason I am denied from purchasing the firearm or cannot purchase the firearm for some other reason can you help me?" Rep., R.127-1, PageID 976. McKenzie agreed. When Tennessee's background-check system alerted the store not to sell to Schwartz, he declined his right to appeal. Schwartz instead asked McKenzie to buy a gun for him, and the two arranged the logistics of the purchase. Schwartz told the agents that he had paid McKenzie $850 in the early morning hours of March 30 before McKenzie returned to the store to pick up the gun. Although McKenzie never mentioned a purchaser's fee expressly, the amount Schwartz gave him exceeded the cost of the gun by about $20. As with Clark, McKenzie does not appear to have asked Schwartz why he could not buy the gun himself. Schwartz later told officers that the store likely refused to sell him a gun because his driver's license had listed his old address.

For these two transactions, the government charged McKenzie with two counts of making a materially false statement to a licensed firearms dealer by suggesting that he was the actual buyer when he was a straw purchaser. See 18 U.S.C. § 922(a)(6). McKenzie pleaded guilty to both counts without a plea agreement.

A probation officer calculated McKenzie's guidelines range using the firearms guideline. See U.S.S.G. § 2K2.1. The applicable subparagraph of this guideline instructs courts to choose a higher base offense level if, as relevant here, three conditions are met. Id. § 2K2.1(a)(4)(B). The offense must involve a semiautomatic firearm capable of accepting a large-capacity magazine. Id. § 2K2.1(a)(4)(B)(i)(I). The defendant must have been convicted under § 922(a)(6). Id. § 2K2.1(a)(4)(B)(ii)(III). And the defendant must have "committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person[.]" Id. McKenzie objected to the court's use of this provision in calculating his guidelines range, asserting that he had no reason to think that Clark or Schwartz were "prohibited person[s]."

Overruling McKenzie's objection, the district court found that he had reason to believe that Clark and Schwartz were prohibited persons. The court noted that McKenzie never asked Clark why he could not buy the gun himself and required Clark to pay a $60 fee. It found even "more impactful" that Schwartz had alerted McKenzie to the possibility that he would be denied the right to purchase a firearm himself. Sent. Tr., R.126, PageID 940.

Using the higher base offense level, the court calculated McKenzie's guidelines range as 30 to 37 months’ imprisonment. It imposed a 30-month sentence.

II

McKenzie asserts that the district court miscalculated his guidelines range by using the base offense level in U.S.S.G. § 2K2.1(a)(4)(B) and thereby imposed a procedurally unreasonable sentence. See United States v. Riccardi , 989 F.3d 476, 481 (6th Cir. 2021). This subparagraph instructs a district court to set a defendant's base offense level at "20, if":

the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a large capacity magazine ... and (ii) defendant ... (III) is convicted under 18 U.S.C. § 922(a)(6) ... and committed the offense with knowledge, intent, or reason to believe that the offense would result in the transfer of a firearm or ammunition to a prohibited person[.]

U.S.S.G. § 2K2.1(a)(4)(B). The corresponding commentary goes on to define "prohibited person" as someone "described in 18 U.S.C. § 922(g) or § 922(n)"—statutory subsections that bar various individuals (including convicted felons and those indicted for a felony) from possessing firearms. Id. cmt. n.3.

The parties agree on (or at least do not expressly dispute) several points about this subparagraph's application. They agree that the government bore the burden of proof to establish its applicability by a preponderance of evidence. Cf. United States v. Pawlak , 822 F.3d 902, 911 (6th Cir. 2016), abrogated on other grounds by Beckles v. United States , ––– U.S. ––––, 137 S. Ct. 886, 197 L.Ed.2d 145 (2017). They also do not object to the evidence on which the district court relied to find this burden met, including records of Clark's text messages, ATF notes of the interview with Schwartz, the basic facts to which McKenzie pleaded guilty, and the information in his presentence report. Cf. United States v. Cover , 800 F.3d 275, 278 (6th Cir. 2015) (per curiam). McKenzie next agrees that the government satisfied two of the subparagraph's three requirements: that he was convicted under § 922(a)(6) and that his offense involved a semiautomatic firearm that could accept a large-capacity magazine. The government likewise agrees that the evidence did not show that McKenzie had "knowledge" that Clark or Schwartz could not possess firearms or an "intent" to provide those individuals with guns because of their prohibited status. The parties’ dispute thus boils down to whether the government showed that...