United States v. Prieto, No. 22-3070 (7th Cir. 2023)
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Prieto, a convicted felon, arranged several firearms transactions with a confidential source (CS). During the first transaction, which resulted in a completed sale, the CS informed Prieto that he was on parole and suggested that he had outstanding warrants. Prieto continued to contact the CS and eventually sold several more firearms to the CS.
Prieto pleaded guilty to three counts of unlawfully possessing a firearm as a felon, 19 U.S.C. 922(g)(1). The PSR recommended and the Seventh Circuit affirmed the application of enhancements to Prieto’s base offense level under U.S.S.G. 2K2.1(b)(5), for “trafficking” firearms, applied because Prieto transferred two or more firearms to the CS and knew or had reason to believe the CS was an individual whose possession of the firearms would be unlawful; under section 2K2.1(b)(1)(B), because Prieto’s conduct involved eight firearms; and for obstruction-of-justice. With these enhancements, Prieto’s guidelines range was 140-175 months’ imprisonment. Upholding the 120-month sentence, the court rejected arguments that the government did not prove that the CS actually was on parole, or that he, Prieto, had reason to believe the CS remained on parole when he transferred the guns and that he should not be held accountable for eight firearms because—for three of them—he merely offered (but failed) to sell them to the CS.
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In the United States Court of Appeals For the Seventh Circuit ____________________ No. 22-3070 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROBERTO PRIETO, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:21-CR-00452(1) — Harry D. Leinenweber, Judge. ____________________ ARGUED OCTOBER 3, 2023 — DECIDED OCTOBER 23, 2023 ____________________ Before BRENNAN, SCUDDER, and ST. EVE, Circuit Judges. PER CURIAM. Roberto Prieto appeals his 120-month sentence for unlawfully possessing rearms. In computing the advisory Sentencing Guidelines range, the district court imposed two four-level enhancements: one for tra cking rearms to a person whose possession of which Prieto knew or had reason to believe would be unlawful, and another because his o ense conduct involved eight rearms. Because the 2 No. 22-3070 sentencing record supports the district court’s application of the enhancements, we a rm. I. Background Prieto, a convicted felon, sold rearms. During 2020 and 2021, Prieto arranged several rearms transactions to a con dential source. Some transactions resulted in completed sales; others did not. The rst transaction resulted in a completed sale, which involved a shotgun and occurred on June 27, 2020. During this transaction, the con dential source informed Prieto that he was on parole and even suggested that he had outstanding warrants. The second transaction, however, did not result in a sale. On July 18, 2020, Prieto texted the con dential source a picture of a Rugar pistol and o ered to sell it for $800. In the meantime, Prieto was arrested for a parole violation; thus, no sale took place. Prieto remained incarcerated until May 2021. After his release from prison, Prieto reinitiated contact with the con dential source. On July 6, 2021, Prieto texted the con dential source a picture of two Glock pistols, which he o ered to sell for $2,200. This sale, however, also did not happen because the pistols were transferred to someone else. About a week later, Prieto sold two rearms to the con dential source. And the following day, Prieto sold two more rearms to the con dential source, who was accompanied by an undercover agent. After the sale, law enforcement arrested Prieto. Prieto pleaded guilty to three counts of unlawfully possessing a rearm as a felon in violation of 19 U.S.C. § 922(g)(1). No. 22-3070 3 The probation o ce prepared a presentence investigation report (“PSR”) that recommended applying two four-level enhancements to Prieto’s base o ense level. According to the PSR, the rst enhancement, U.S.S.G. § 2K2.1(b)(5), regarding “tra cking” rearms, applied because Prieto transferred two or more rearms to the con dential source and knew or had reason to believe the con dential source was an individual whose possession of the rearms would be unlawful. And the second enhancement, U.S.S.G. § 2K2.1(b)(1)(B), regarding relevant conduct, applied because Prieto’s conduct involved eight rearms. The PSR also applied a two-level enhancement for obstruction-of-justice. With these enhancements, the PSR calculated Prieto’s total o ense level at 29 and his criminal history category at V, yielding a guidelines range of 140 to 175 months’ imprisonment. At sentencing, Prieto contested the application of each enhancement. Regarding the rearms-tra cking enhancement under § 2K2.1(b)(5), Prieto argued the government did not prove that the con dential source actually was on parole, or that he, Prieto, had reason to believe the source remained on parole when he transferred multiple guns to the source in July 2021. As for the enhancement under § 2K2.1(b)(1)(B), Prieto argued that he should not be held accountable for eight rearms because—for three of them—he merely o ered (but failed) to sell them to the con dential source. The district court rejected Prieto’s arguments regarding the four-level enhancements. It concluded that the record supported the enhancement for tra cking rearms because Prieto believed that he was transferring rearms to a person on parole. The court then found that Prieto’s conduct involved eight rearms, deeming it “su cient that he 4 No. 22-3070 indicate[d] that he has or will have possession of the speci c number of weapons.” (The court sustained Prieto’s objection to the two-level enhancement for obstruction-of-justice.) Consequently, the court determined that Prieto had a total o ense level of 27 and a criminal history category of V, resulting in a guidelines range of 120–150 months. Ultimately, the court sentenced Prieto to 120 months in prison. II. Analysis On appeal, Prieto renews his challenges to the application of the four-level enhancements under §§ 2K2.1(b)(5) and 2K2.1(b)(1)(B). We review de novo the district court’s application of the guidelines range calculation. United States v. Porraz, 943 F.3d 1099, 1102 (7th Cir. 2019). We review for clear error the district court’s factual determinations underlying the application of the Guidelines—speci cally, the factual determination at issue here regarding the number of rearms involved in an o ense. United States v. Burnett, 37 F.4th 1235, 1239 (7th Cir. 2022). A district court need nd only, by a preponderance of the evidence, that the facts are su cient to support an enhancement. United States v. Gri n, 76 F.4th 724, 751 (7th Cir. 2023). “When interpreting a speci c provision of the sentencing guidelines, we ‘begin with the text of the provision and the plain meaning of the words in the text.’” United States v. Cook, 850 F.3d 328, 332 (7th Cir. 2017) (quoting United States v. Hill, 645 F.3d 900, 907–08 (7th Cir. 2011)). A. Firearms Tra cking Prieto contends that the district court erred in applying the sentencing enhancement under § 2K2.1(b)(5), which provides a four-level increase to the o ense level “[i]f the defendant No. 22-3070 5 engaged in the tra cking of rearms.” Application Note 13(A) to § 2K2.1(b)(5) clari es that the rearms-tra cking enhancement applies if the defendant: (i) transported, transferred, or otherwise disposed of two or more rearms to another individual, or received two or more rearms with the intent to transport, transfer, or otherwise dispose of rearms to another individual; and (ii) knew or had reason to believe that such conduct would result in the transport, transfer, or disposal of a rearm to an individual— (I) whose possession or receipt of the rearm would be unlawful; or (II) who intended to use or dispose of the rearm unlawfully. Application Note 13(B) further states: “Individual whose possession or receipt of the rearm would be unlawful” means an individual who (i) has a prior conviction for a crime of violence, a controlled substance o ense, or a misdemeanor crime of domestic violence; or (ii) at the time of the o ense was under a criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. 6 No. 22-3070 Prieto rst argues that the government had to prove by a preponderance of the evidence that the con dential source actually was on parole at the time. He relies on the Tenth Circuit’s opinion in United States v. Francis, 891 F.3d 888, 896–98 (10th Cir. 2018). Given the “reason to believe” language in the application note, however, we agree with the government that the con dential source need not actually be a prohibited person. See, e.g., United States v. Henry, 819 F.3d 856, 870 (6th Cir. 2016) (“[T]he agent need not have actually been a felon for §2K2.1(b)(5) to apply. The Guidelines merely require [the defendant] to have ‘had reason to believe’ that [the transferee’s] ‘possession or receipt of the rearm would be unlawful.’”); United States v. Fields, 608 Fed. App’x 806, 813 (11th Cir. 2015) (holding that the guidelines only require that the defendant had reason to believe that the transferee could not possess rearms lawfully). Prieto next maintains that he did not know or have reason to believe that the con dential source was on parole during the sale of multiple rearms. Prieto concedes he knew that the con dential source was on parole during the rearm sale in June 2020 but denies having reason to believe that the con dential source remained on parole during the sales in July 2021, especially because the con dential source said nothing further at the time about still being on parole. Thus, Prieto contends, the district court erred in applying the rearmstra cking enhancement. The record evidence here is su cient to show that Prieto “had reason to believe” the con dential source remained on parole during the rearm sales in July 2021. Although the con dential source did not reiterate his status as a parolee, nothing in the record suggests that the source’s status may have No. 22-3070 7 changed during the 13 months between the rst and second rearm sales. Indeed, each sale occurred in the same manner: Prieto arranged cash transactions in exchange for rearms after texting about the transaction. And Prieto would have known from his own rsthand experience with the criminal justice system that terms of parole can span years. On these facts, the district court did not err in applying the rearmstra cking enhancement under U.S.S.G. § 2K2.1(b)(5). B. Number of Weapons Prieto next argues that the district court erred in determining, for purposes of § 2K2.1(b)(1), that he tra cked eight rearms instead of ve. Section 2K2.1(b)(1) of the Sentencing Guidelines provides incremental increases to a defendant’s o ense level based on the number of rearms associated with his crimes of conviction (i.e., the higher the quantity of rearms, the greater the o ense level). As relevant here, § 2K2.1(b)(1) directs district courts to increase by four levels the o ense level of a defendant convicted of unlawful possession of a rearm if the o ense involved 8 to 24 rearms. But if the o ense involved 3 to 7 rearms, the o ense level only increases by two levels. Prieto concedes that his o enses involved ve rearms but argues that the government failed to produce su cient evidence to support a nding that eight rearms were involved in his o enses. Speci cally, he contends that the government failed to prove he unlawfully sought to obtain the three rearms that he o ered (but failed) to sell to the con dential source. 8 No. 22-3070 In determining the number of rearms, the court may consider all rearms that were “involved in the same course of conduct or common scheme or plan as the o ense of conviction.” United States v. Burnett, 37 F.4th 1235, 1238–39 (7th Cir. 2022). Application Note 5 to Subsection (b)(1) speci es that “only those rearms that were unlawfully sought to be obtained, unlawfully possessed, or unlawfully distributed” should be counted for purposes of this Guideline. Here, su cient evidence in the record supports the nding that Prieto’s o enses included the three rearms that he o ered (but failed) to sell to the con dential source. Prieto sold the con dential source a rearm in June 2020. Prior to that rst sale, he texted the con dential source and sent pictures of the rearm. Each rearm sale occurred in the same manner: Prieto sent pictures of the rearms to the con dential source and arranged a meeting to complete the sale. Prieto engaged in this same course of conduct for the three rearms that he ultimately did not sell to the con dential source. The sales of the three rearms were not completed because of two reasons: (1) Prieto was arrested before the sale of one of the rearms was completed; (2) despite o ering to sell two rearms to the con dential source, those rearms were transferred to someone else. The evidence is more than su cient to infer Prieto sought to obtain these three rearms. On these facts, the district court did not err in applying § 2K2.1(b)(1). See United States v. Birk, 453 F.3d 893, 900 (7th Cir. 2006) (“While the Guidelines caution against speculative ndings, they also emphasize the need to consider intended conduct as well as completed conduct.” (quotation omitted)). III. Conclusion For these reasons, we a rm Prieto’s sentence.
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