                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0352n.06

                                         Case No. 16-3900

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                               Jun 21, 2017
UNITED STATES OF AMERICA,                             )                    DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )      ON APPEAL FROM THE UNITED
v.                                                    )      STATES DISTRICT COURT FOR
                                                      )      THE NORTHERN DISTRICT OF
ANTONIO TURNER,                                       )      OHIO
                                                      )
       Defendant-Appellant.                           )
                                                      )

       BEFORE: BOGGS, CLAY, and SUTTON, Circuit Judges.

       SUTTON, Circuit Judge. Antonio Turner sold two firearms to an undercover agent and

informant, after which he pleaded guilty to possessing a firearm as a felon and selling firearms

without a license. On appeal, he challenges two enhancements to his sentencing guidelines

calculation, one for firearms trafficking and one for a prior crime of violence. Because the

district court properly applied the guidelines, we affirm.

                                                 I.

       In the summer of 2014, Gilberto Torres approached an informant working for the Bureau

of Alcohol, Tobacco, and Firearms and offered to sell him a gun. The informant agreed to meet,

bringing along Special Agent Lorena Martinez, who posed as a member of a trafficking

organization operating in Chicago and “down South.” After a successful sale, Torres introduced

the undercover team to Juan Luis Hernandez, a self-proclaimed intermediary for underground
Case No. 16-3900, United States v. Turner


firearm sales. Hernandez, like Torres, sold the agents a handgun and offered to find them more.

Not long after, Torres and Hernandez had a falling out. But the agents continued to work with

Hernandez.

       On July 31, 2014, the agents went to Hernandez’s house for another firearm sale. The

informant entered the house and found Antonio Turner inside. After exchanging greetings,

Turner lifted his shirt to display a .380 caliber pistol. He then removed a second .40 caliber

pistol from a nearby backpack and gave both guns to Hernandez, who placed them in the

backpack and walked with the informant back to his car where the undercover agent was waiting.

       Officers had wired the car with several recording devices. Once in the car, Hernandez

told the agents that he had informed Turner that the agents could pay only $200. He then

explained why he and Torres no longer worked together. Agent Martinez confirmed that this

was fine and asked whether there was anything she needed to know about the guns, namely

whether they were “clean” or “dirty.” Hernandez replied that the guns he had that day were

clean. The agents completed the transaction, purchasing both guns. After the sale, Hernandez

told the informant that Turner had two more weapons to sell, and he would contact him once he

received them.

       On August 5, Hernandez sold the undercover team another one of Turner’s guns.

In complaining that the gun was old, Hernandez joked with the undercover agents that “when

[he] told him ‘dirty,’ [he] didn’t mean like some . . . old shit.” R. 98-11 at 8. “You know, I told

him ‘dirty’ like if you was grabbing somebody, you shot somebody.” Id. This “dirty” gun,

unlike the others, had an obliterated serial number.




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Case No. 16-3900, United States v. Turner


       Agents arrested Turner. He pleaded guilty to being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1), and being an unlicensed firearm dealer in violation of 18

U.S.C. § 922(a)(1)(A).

       At sentencing, Turner unsuccessfully challenged the application of the Armed Career

Criminal Act and a four-level enhancement for trafficking in firearms under U.S.S.G.

§ 2K2.1(b)(5). He succeeded, however, in striking an enhancement for the obliterated serial

number on the grounds that his connection to the second sale was “too tenuous.” R. 97 at 211.

The district court sentenced Turner to 180 months, the statutory minimum under the Armed

Career Criminal Act.

       In the aftermath of Johnson v. United States, 135 S. Ct. 2551 (2015), we vacated Turner’s

sentence and remanded the case to determine whether the Armed Career Criminal Act still

applied and to determine Johnson’s “effect, if any, on the four-level trafficking enhancement.”

United States v. Torres, 644 F. App’x 663, 664 (6th Cir. 2016).

       At re-sentencing, the government did not pursue the Armed Career Criminal Act

designation.   But the district court re-imposed the four-level trafficking enhancement and

ultimately sentenced Turner to 60 months on the trafficking charge and 120 months on the

possession charge, both to run concurrently. Turner appealed.

                                               II.

       Four-level trafficking enhancement.     Turner claims that the district court erred in

applying a four-level enhancement for selling firearms under U.S.S.G. § 2K2.1(b)(5) because the

guideline turns on the same conduct covered by the two underlying statutory violations and

because insufficient evidence supported the enhancement. We disagree.




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Case No. 16-3900, United States v. Turner


       A court, it is true, may not factor the same conduct into a defendant’s sentence more than

once. United States v. Farrow, 198 F.3d 179, 193 (6th Cir. 1999). But no double counting

occurs if the enhancement accounts for distinct aspects of the defendant’s offense conduct.

United States v. Battaglia, 624 F.3d 348, 351 (6th Cir. 2010).

        Section 2K2.1(b)(5) adds four levels “[i]f the defendant engaged in the trafficking of

firearms.”   The Commentary says that this enhancement applies if the defendant, when

transferring two or more firearms, “knew or had reason to believe” that he was transferring a

firearm to an individual “whose possession or receipt of the firearm would be unlawful” or

“[w]ho intended to use or dispose of the firearm unlawfully.” Id. cmt. 13(A).

       This guidelines enhancement targets conduct distinct from the conduct punished by the

two statutes. Section 922(g) is Turner’s primary count of conviction and led to a ten-year

sentence. The statute prohibits any person convicted of a crime punishable by imprisonment for

a term exceeding one year from shipping, transporting, or possessing “any firearm or

ammunition” or receiving “any firearm or ammunition which has been shipped or transported in

interstate or foreign commerce.” The upshot is that § 922(g) covers possession, not sale. It does

not require unlawful recipients or “trafficking” in multiple weapons. It just bars possession and

thus does not double count. See United States v. Freeman, 640 F.3d 180, 187 (6th Cir. 2011).

       In view of this conclusion, it’s difficult to see what Turner hopes to gain from his

separate double-counting argument with respect to § 922(a)(1)(A)—which led to a five-year

concurrent sentence. If the ten-year sentence must stand, the elimination of a concurrent five-

year sentence would not offer him much solace.

       Be that as it may, § 922(a)(1)(A) punishes different conduct anyway. It prohibits any

person who, without a license, “engage[s] in the business of importing, manufacturing, or



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Case No. 16-3900, United States v. Turner


dealing in firearms, or in the course of such business [] ship[s], transport[s], or receive[s] any

firearm in interstate or foreign commerce.” The enhancement thus contains an element not

found in § 922(a)(1)(A): reason to believe that the buyer may not legally possess a firearm or

intends to use the firearm unlawfully.

       Also unavailing is Turner’s challenge to the sufficiency of the evidence to support the

§ 2K2.1(b)(5) enhancement. The key question is whether the district court abused its discretion

in finding that Turner had reason to know that the buyers “intended to use or dispose of [his]

firearm[s] unlawfully.” U.S.S.G. § 2K2.1(b)(5), cmt. 13(A); Gall v. United States, 552 U.S. 38,

51 (2007). Our court has inferred this knowledge from a variety of circumstances. In one case,

we held that the exchange of guns for cash and heroin late at night provided sufficient reason for

the defendant to believe that the buyer, his heroin dealer, intended to use the weapons

unlawfully. Freeman, 640 F.3d at 189. In another case, the court looked to the nature of the

guns (there, a gun with no serial number and a sawed-off shotgun), the fact that the defendant

had advertised one gun as a “murder weapon,” and the defendant’s conduct during the sale

(instructing the agent how to illegally alter a gun’s barrel) in affirming application of the

enhancement. United States v. Jenkins, 528 F. App’x 483, 486 (6th Cir. 2013).

       Ample evidence supports the trial judge’s finding that Turner “knew or had reason to

believe” the guns would be used illegally. Hernandez told the agents that Turner would find

them at least two more guns, in addition to the two he had already sold. Turner thus knew that

this was not a one-and-done arrangement. The buyers wanted a slew of guns. On top of that,

Hernandez knew the buyers would accept stolen or otherwise “dirty” guns and he explained all

of this to Turner. In response, Turner said, “yeah dog, I got you.” R. 98-10 at 8; R. 97 at 94–95.

Russell Johnson, an Alcohol, Tobacco, and Firearms agent, participated in the investigation



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Case No. 16-3900, United States v. Turner


debriefing, and he confirmed Turner’s knowledge. Hernandez knew that the buyers could not

pay more than $200 because they wished to resell the guns at a profit, and he suggested that he

told Turner as much. Turner also offered to sell drugs to the buyers, another sign that he did not

think they were on the up and up. Add to this the context of the sale—hidden handguns and

parked car dealings—and you have enough evidence to support the district court’s finding that

Turner knew or should have known that the buyers had unlawful uses in mind.

       Crime of violence enhancement. Turner challenges his crime-of-violence enhancement

on the ground that his Ohio felonious assault conviction does not count. Because he did not raise

this challenge at sentencing, plain-error review applies. United States v. Vonner, 516 F.3d 382,

385–86 (6th Cir. 2008) (en banc). No such error occurred.

       In calculating a defendant’s sentencing range, the guidelines provide for an increased

base-offense level where the defendant has a prior conviction for a crime of violence. U.S.S.G.

§ 2K2.1(a). The guidelines define “crime of violence” as any offense punishable by more than

one year of imprisonment that “has as an element the use, attempted use, or threatened use of

physical force against the person of another” or that falls into one of several enumerated

categories. Id. § 4B1.2(a).

       Ohio defines felonious assault as causing “serious physical harm to another or to

another’s unborn” and defines “serious physical harm” to include, among other things, any

“mental illness or condition of such gravity as would normally require hospitalization or

prolonged psychiatric treatment.” Ohio Rev. Code §§ 2901.01(A)(5), § 2903.11(A)(1).

       The problem for Turner is that we have already held that one can “[c]ause serious

physical harm to another” under Ohio’s felonious assault statute “only by knowingly using force

capable of causing physical pain or injury, i.e., violent physical force.”      United States v.



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Case No. 16-3900, United States v. Turner


Anderson, 695 F.3d 390, 400 (6th Cir. 2012). Although Anderson involved the definition of

“violent felony” under the Armed Career Criminal Act, the language in that definition parallels

the definition of “crime of violence” in the Guidelines, and “authority interpreting one phrase is

generally persuasive when interpreting the other.” United States v. Vanhook, 640 F.3d 706, 712

n.4 (6th Cir. 2011).

       Our unpublished certificate-of-appealability ruling in In re Williams, No. 16-3411 (6th

Cir. Oct. 27, 2016), does not alter this conclusion. Williams states only that “it is possible that

Anderson . . . may no longer control the determination whether a conviction for attempted

felonious assault qualifies as a predicate offense.” Id. at *4. It is one thing to say that Turner’s

challenge to Anderson raises a debatable question; it is quite another to say that reliance on

Anderson generates plain error.

       For these reasons, we affirm.




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