                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES COURT OF APPEALS October 16, 2013
                                                               Elisabeth A. Shumaker
                                 TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 13-7014
          v.                                         (E.D. Oklahoma)
 DARREN GLEN HOWARD,                        (D.C. No. 6:12-CR-00064-RAW-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TYMKOVICH, ANDERSON, and BACHARACH, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant, Darren Glen Howard, appeals the forty-one month

sentence imposed on him following his plea of guilty to one count of conspiracy



      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
to knowing possession of a stolen firearm, in violation of 18 U.S.C. § 371.

Finding that the district court did not err in imposing Mr. Howard’s sentence, we

affirm.



                                 BACKGROUND

      Mr. Howard had been committing burglaries and concealing stolen property

in the Tahlequah, Oklahoma, area since at least 2006. When a local storage unit

was burglarized, local law enforcement questioned Mr. Howard on December 9,

2011, about the crime. He admitted that he had broken into the storage unit,

where he had found a large gun safe. Mr. Howard persuaded his brother to help

him load the safe into a vehicle. Mr. Howard later broke into the safe and

retrieved six firearms: a Remington Sendero 7mm, a Cooper Firearms 17 Mach 4,

a BAT Machine Company 6 mm Dascher caliber rifle, a Walther .22 caliber bolt

action rifle, a Colt 45, and a Russian Vostok .22 caliber pistol.

      Agents from the Alcohol, Tobacco, Firearms and Explosives Department

(“ATF”) learned on December 15, 2011, that Timothy Hess, Mr. Howard’s father-

in-law, was selling stolen firearms. Mr. Hess sold three of the firearms stolen by

Mr. Howard from the local storage unit to a confidential informant (“CI”) in an

ATF-controlled buy. On December 19, 2011, the CI bought three more firearms

and a computer from Mr. Hess in another ATF-controlled buy. Mr. Hess told the

CI that one of the firearms was stolen by Mr. Howard from a lake house and that

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four additional firearms were lying on the bed when Mr. Howard broke into the

lake home. Mr. Hess further told the CI that the firearms would not be reported

as stolen and that more were available for purchase. Mr. Hess also told the CI

that, although Mr. Howard had been arrested for burglarizing the storage unit, the

police had only located about half of Mr. Howard’s stash of stolen firearms.

      Mr. Hess was arrested in August 2012. He told law enforcement authorities

that Mr. Howard had brought stolen weapons to Mr. Hess’s house for storage and

sale since Mr. Howard could not have firearms because of his criminal record.

Mr. Howard specifically informed Mr. Hess that the firearms had been stolen.

      Mr. Hess also told a CI that Mr. Howard gave some of the stolen firearms

to Tony Dickson, a convicted felon. Mr. Howard admitted, in a post-arrest and

post-Miranda interview with Tahlequah Police Officer Dale Glory that he had

traded some of the stolen firearms for drugs from a narcotics dealer in Stilwell,

Oklahoma.

      Mr. Howard pled guilty, on September 19, 2012, to one count of conspiracy

to knowingly possess a stolen firearm, in violation of 18 U.S.C. § 371.

Mr. Howard provided the following factual basis for his guilty plea: “I

committed a crime of conspiracy against the United States. I agreed to provide

stolen guns – oh, I did provide stolen guns to Tim Hess, my co-conspirator. I did

this in Cherokee County in the Court’s jurisdiction. This happened around

October to December of 2011.” Tr. of Change of Plea Hr’g at 14, R. Vol. 2 at 20.

                                         -3-
      Following Mr. Howard’s guilty plea, and in preparation for sentencing

under the United States Sentencing Commission, Guidelines Manual (“USSG”),

the United States Probation Office prepared a presentence report (“PSR”). The

PSR included a four-level increase in Mr. Howard’s offense level pursuant to

USSG §2K2.1(b)(5), because Mr. Howard had “trafficked” in firearms.

      Mr. Howard objected to the four-point increase, arguing that there was

insufficient evidence that he knew the firearms were transferred to a person for

whom it was illegal to possess such firearms, or who was going to use them

unlawfully.

      The government responded with specific facts demonstrating that Mr.

Howard had stolen numerous firearms which he had disposed of in multiple

locations; that Mr. Howard traded some stolen guns to a drug dealer; that Mr.

Howard had told a CI that he gave some stolen firearms to a convicted felon; and

that he had sold stolen firearms to Mr. Hess, acting as a fence, when Mr. Hess, as

a co-conspirator in possessing the stolen firearms, knew the weapons were stolen.

      At Mr. Howard’s sentencing hearing, the district court overruled Mr.

Howard’s objections and imposed the firearms trafficking enhancement provided

by USSG §2K2.1(b)(5). He was accordingly sentenced to forty-one months’

imprisonment. This appeal followed, in which Mr. Howard challenges his

sentence on the sole ground that the district court erred in assessing a four-level




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increase in his base offense level under the advisory Guidelines on the ground

that he had “engaged in the trafficking of firearms.” Id.



                                  DISCUSSION

      As indicated, USSG §2K2.1(b)(5) provides for a four-level increase in a

defendant’s base offense level “[i]f the defendant engaged in the trafficking of

firearms. . . .” Application Note 13(A) of § 2K2.1 states:

            Subsection (b)(5) applies, regardless of whether anything of
      value was exchanged, if the defendant–

      (i)    Transported, transferred, or otherwise disposed of two or more
             firearms to another individual, or received two or more
             firearms with the intent to transport, transfer, or otherwise
             dispose of firearms to another individual; and
      (ii)   Knew or had reason to believe that such conduct would result
             in the transport, transfer, or disposal of a firearm to an
             individual–
             (I) Whose possession or receipt of the firearm would be
             unlawful; or
             (II) Who intended to use or dispose of the firearm
             unlawfully.

USSG §2K2.1, comment. (n.13(A)). Application Note 13(B) further states:

      “Individual whose possession or receipt of the firearm would be
      unlawful” means an individual who (i) has a prior conviction for a
      crime of violence, a controlled substance offense, or a misdemeanor
      crime of domestic violence; or (ii) at the time of the offense was
      under a criminal justice sentence, including probation, parole,
      supervised release, imprisonment, work release, or escape status.

Id., comment. (n.13(B)). The district court here found that Mr. Howard disposed

of the firearms to “an individual whose possession and receipt were unlawful.”

                                         -5-
Tr. of Sentencing Hr’g at 11, R. Vol. 2 at 34. As the court stated more fully,

“The defendant . . . transferred six of the firearms to the co-defendant, Timothy

Hess. Therefore, the defendant possessed more than two firearms with the intent

to transfer or dispose of the firearms to another individual. Furthermore, since

the firearms were known to be stolen by the defendant and he chose to transfer

the firearms to the co-defendant, this resulted in the defendant disposing of the

firearms to an individual whose possession and receipt were unlawful.” Id.

      At a defendant’s sentencing, “the government must prove facts supporting a

sentencing enhancement by a preponderance of the evidence.” United States v.

Garcia, 635 F.3d 472, 478 (10th Cir. 2011); United States v. Gambino-Zavala,

539 F.3d 1221, 1228 (10th Cir. 2008). “We review the district court’s factual

finding for clear error.” Garcia, 635 F.3d at 478. “To constitute clear error, we

must be convinced that the sentencing court’s finding is simply not plausible or

permissible in light of the entire record on appeal, remembering that we are not

free to substitute our judgment for that of the district judge.” Id. (quoting United

States v. McClatchey, 316 F.3d 1122, 1128 (10th Cir. 2003) (further quotation

omitted)).

      As in our Garcia case, Mr. Howard does not dispute that he transferred two

or more firearms to another individual. Thus, the issue is whether Mr. Howard

“knew or had reason to believe” that the firearms he had stolen and transferred to




                                         -6-
Mr. Hess and others constituted the transfer of firearms to an individual whose

possession or receipt of such firearms was (or would be) unlawful.

      “In assessing a defendant’s mental state for the purposes of sentencing, a

court may draw ‘common-sense inferences from the circumstantial evidence.”

Garcia, 635 F.3d at 478 (quoting United States v. Juarez, 626 F.3d 246, 256 (5th

Cir. 2010)). Mr. Howard’s primary argument is that the district court seemed to

rely upon the provision of the Application Note referring to the transfer of

firearms to an individual whose possession or receipt of the firearms would be

unlawful, as opposed to the provision referring to transfer to an individual whose

intended use of the firearm is unlawful. He argues that the Application Note

states that an “individual whose possession . . . of the firearm would be unlawful”

means only individuals with prior convictions or those contemporaneously under

a criminal justice sentence, and there is no evidence that Mr. Hess specifically

meets those criteria: “there was no evidence in this case that Timothy Hess was a

prohibited person based on any prior conviction or that he was under a criminal

justice sentence of any kind at the time of the transfer.” Appellant’s Br. at 8.

Thus, the argument goes, the district court erred in finding the trafficking

enhancement satisfied on the ground that Mr. Hess’s possession of the stolen

firearms would be unlawful.

      We do not read either the district court’s analysis, the evidence before the

court, or the Application Note that narrowly. We noted in our decision in Garcia

                                         -7-
that our circuit had “not previously addressed the type of circumstantial evidence

necessary to support the firearms trafficking enhancement of §2K2.1(b)(5).” Id.

at 479. Garcia and the case upon which it relied, United States v. Juarez, 626

F.3d 246 (5th Cir. 2010), both involved application of the trafficking

enhancement when the government proved by a preponderance of the evidence

that the transferee of the firearms in question “intended to use or dispose of the

firearm unlawfully.” USSG §2K2.1(b)(5), comment. (n.13(A)(ii)(II)). But, the

analysis employed in each decision did not so narrowly focus solely on the status

of the firearm transferee, as Mr. Howard asks us to do.

      The defendant in Juarez had purchased twenty-five firearms, the majority

of which were military-style arms. Some of these firearms were ultimately

recovered from gang members in Mexico. Additionally, the government

presented evidence that the defendant had an ongoing relationship with an arms

buyer, who directed the weapons purchases, telling the defendant which weapons

to purchase, providing cash for those purchases, and then paying the defendant

$200 for each firearm. Given those facts (“[t]he number of weapons, their type,

and the circumstances surrounding [the defendant’s] relationship [with the arms

buyer, including its] clandestine nature”), the Fifth Circuit concluded that the

“trafficking” enhancement applied. Juarez, 626 F.3d at 249-52.

      Similarly, in Garcia, we noted that “the government presented evidence at

sentencing that Garcia had purchased or attempted to purchase nineteen firearms,

                                         -8-
all of which are types of weapons Mexican drug cartels actively seek in the

United States.” Garcia, 635 F.3d at 479. Some of the weapons were, in fact,

recovered in Mexico, including some seized from Mexican cartel members.

Furthermore, a government agent testified that, “in his experience, straw

purchasers [like Garcia] were generally aware that firearms they purchased were

intended to be used illegally.” Id. All that evidence supported our conclusion

that the defendant in Garcia knew or had reason to believe that the firearms she

purchased and passed on were intended to be used illegally.

      In this case, there was no doubt that the firearms were stolen, and that Mr.

Hess was aware of their status as stolen firearms. Thus, as in Garcia and Juarez,

we, and the district court, may heed the status of the weapons themselves, and the

parties’ awareness of that status. We agree with the government that “anyone

receiving such firearms with any reasonable cause to believe the guns were stolen

would be possessing the weapons illegally.” Appellee’s Br. at 11. We do not ask

the district court “to divorce [itself] from common sense or to ignore what is

perfectly obvious” in determining whether Mr. Howard had transferred stolen

firearms to an individual whose possession of those weapons would be unlawful.

United States v. Molloy, 324 F.3d 35, 40 (1st Cir. 2003). Furthermore, Mr.

Howard had transferred at least one of the stolen firearms to a drug dealer and to

a known felon. Tr. of Sentencing Hr’g at 6-7, R. Vol. 2 at 29-30. We perceive no

clear error in the district court’s determination that the government had

                                         -9-
established by a preponderance of the evidence the applicability of the trafficking

enhancement.



                                 CONCLUSION

      For the foregoing reasons, we AFFIRM the sentence imposed in this case.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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