                               In the

     United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 18-1837
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,
                                 v.

DANDRE MOODY,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Eastern Division.
            No. 15-CR-350 — John J. Tharp, Jr., Judge.
                     ____________________

  ARGUED DECEMBER 11, 2018 — DECIDED FEBRUARY 7, 2019
               ____________________

   Before WOOD, Chief Judge, and RIPPLE and BARRETT, Circuit
Judges.
    BARRETT, Circuit Judge. Within two days of helping his
codefendants steal more than 100 guns from a train car, Dan-
dre Moody sold 13 of them to anonymous buyers who tele-
phoned him after they “heard about it.” He pleaded guilty to
possessing a firearm as a felon, 18 U.S.C. § 922(g)(1); pos-
sessing a stolen firearm, id. § 922(j); and cargo theft, id. § 659,
for which he was sentenced to 93 months’ imprisonment.
2                                                             No. 18-1837

    Moody now appeals his sentence. He challenges, for the
first time, a four-level guideline enhancement under U.S.S.G.
§ 2K2.1(b)(5) for trafficking firearms to people he knew (or
had reason to know) were unlawful users or possessors.1
    We agree with Moody that the district court plainly erred
by imposing this enhancement. Nothing in the record sug-
gests that Moody had reason to believe that his buyers were
unlawful gun users or possessors. By finding that Moody had
such knowledge, the court plainly crossed the line that sepa-
rates permissible commonsense inference from impermissible
speculation. We therefore vacate the judgment and remand
for further sentencing proceedings.
                                       I.
    One night in April 2015, Moody drove a train-theft crew
to a railyard on the south side of Chicago. There, while part


    1 Moody has abandoned a different argument: that the district court
engaged in impermissible double-counting under U.S.S.G. § 2K2.1(b) by
applying both the four-level trafficking enhancement and a four-level en-
hancement for possessing a firearm in connection with another felony.
Moody asked to incorporate by reference this argument from a codefend-
ant’s brief in an appeal that was not consolidated with this one. We need
not address this argument for two reasons. First, as Moody conceded in
his briefing, we rejected this double-counting theory from a codefendant’s
appeal, United States v. Shelton, 905 F.3d 1026, 1035 (7th Cir. 2018), and
Moody posits no grounds for overruling that decision. Second, because
this case was not consolidated with Shelton’s, Moody was not permitted
to incorporate by reference his codefendant’s arguments. See Albrechtsen
v. Bd. Of Regents of Univ. of Wisconsin Sys., 309 F.3d 433, 435–36 (7th Cir.
2002) (“[A]ppellate briefs may not incorporate other documents by refer-
ence.”); see also Parker v. Franklin Cty. Cmty. Sch. Corp., 667 F.3d 910, 924
(7th Cir. 2012) (rejecting defendants’ attempt to incorporate by reference
arguments in their prior district-court brief).
No. 18-1837                                                    3

of the crew broke into a parked train car and stole 111 guns,
Moody waited, ready to drive away with any merchandise
that the crew might retrieve.
    Moody’s share of the loot was 13 guns. Within two days,
according to his uncontradicted testimony at his change-of-
plea hearing, he sold them to different anonymous buyers
who phoned him after they had “heard about it.” Moody was
not asked follow-up questions on the record about the nature
of “it,” and the presentence investigation report did nothing
to further clarify what the callers had heard. Of the crew’s sto-
len guns, 33 were recovered before sentencing—17 at crime
scenes. The sentencing record does not, however, tie Moody
to any of the recovered guns. Moody pleaded guilty to pos-
sessing a gun as a felon, possessing a stolen gun, and cargo
theft.
    Sentencing followed. The district court began the sentenc-
ing hearing by confirming that Moody had reviewed the
PSR’s guidelines calculation (which included the enhance-
ment at issue here, but not any factual detail on that point)
with counsel, had filed no objections, and planned to make
none. The court calculated an advisory Guidelines range of
121 to 151 months’ imprisonment. In doing so, it applied three
enhancements from the 2016 Guidelines Manual, including a
four-level enhancement pursuant to 2K2.1(b)(5) because the
offense involved trafficking in firearms. The court reasoned
that this enhancement applied because Moody had sold his
share of stolen guns “literally to anyone who called express-
ing an interest in getting” them, and the court presumed that
at least several of these people would use them in future
crimes. The court said that this conduct posed a danger to the
4                                                 No. 18-1837

community because “many [of the guns] have been recovered
in Chicago, many of them at crime scenes.” It continued:
      I know, Mr. Moody, that you don’t for a second
      believe that any of those folks were interested in
      lawfully possessing a firearm. There is abso-
      lutely no question that the people that were
      seeking to buy those firearms wanted those fire-
      arms to support other unlawful activity beyond
      their possession of the firearms. Whether it was
      drug trafficking, whether it was violent crime,
      whether it was burglary, robbery, that’s who
      buys guns that have been stolen off a train.
  The court sentenced Moody to a prison term of 93 months,
which was below the advisory Guidelines range.
                                II.
    Moody argues that the district court wrongly applied the
firearm-traﬃcking enhancement under U.S.S.G. § 2K2.1(b)(5).
He maintains that the government did not provide suﬃcient
evidence that he had reason to believe that 2 or more of the 13
buyers either were legally barred from firearm possession (by
virtue of a prior conviction for, say, a crime of violence like
aggravated assault, see § 2K2.1 n.13(B) & § 4B1.2(a)(2)), or
would use the guns in other crimes. Based on this record, he
contends, someone in his shoes could at most reasonably
think only that the callers wished to make an unlawful pur-
chase but not that they were otherwise barred from firearm
possession or would use the guns unlawfully.
   Before tackling the merits of Moody’s argument, we must
address a threshold issue: the parties’ dispute about whether
Moody’s failure to object in the district court to this
No. 18-1837                                                     5

enhancement means that he “waived” or merely “forfeited”
this argument. Whether a defendant had reason to know of a
gun-buyer’s nefarious purpose is the kind of factual question
we review for clear error if the issue is preserved. United States
v. Jemison, 237 F.3d 911, 918 (7th Cir. 2001). But the even more
deferential standard of plain-error review applies when an
objection has been forfeited, and no review is available when
it has been waived. United States v. Oliver, 873 F.3d 601, 607
(7th Cir. 2017). An issue is waived when a defendant inten-
tionally relinquishes a known right; it is merely forfeited
when a defendant neglects to timely object. Id.
    Here, the better view is that Moody forfeited rather than
waived the objection. “The touchstone of waiver is a knowing
and intentional decision.” United States v. Jaimes-Jaimes, 406
F.3d 845, 848 (7th Cir. 2005). If the government cannot proffer
any strategic justification for a defendant’s omission, we will
presume an inadvertent forfeiture rather than an intentional
relinquishment. Oliver, 873 F.3d at 607; cf. United States v.
Young, 908 F.3d 241, 246–47 (7th Cir. 2018). No one has pro-
posed a strategic reason for Moody to have bypassed a chal-
lenge to a four-level enhancement. Thus, the claim is forfeited,
and we will review the district court’s decision for plain-error.
Oliver, 873 F.3d at 607.
    Under the plain-error standard, Moody must show that
the error is not subject to reasonable dispute, that it affected
his substantial rights, and that it diminished the fairness, in-
tegrity, or reputation of the judicial proceedings. Id.; Molina-
Martinez v. United States, 136 S. Ct. 1338, 1343 (2016); Fed. R.
Crim. P. 52(b). Although that standard is demanding, Moody
meets it.
6                                                       No. 18-1837

    U.S.S.G. § 2K2.1(b)(5) directs a court to increase a defend-
ant’s offense level by four for the “trafficking” of firearms. As
relevant here, this means that the defendant “knew or had
reason to believe” that, for at least two guns, the recipient in-
tended to use the weapon in a further crime or was already a
person prohibited, by federal law on specified grounds, from
possessing guns. U.S.S.G. § 2K2.1 n.13(A). A “person prohib-
ited” is narrowly defined as someone “whose possession or
receipt of the firearm would be unlawful.” Id. Such a person
“(i) has a prior conviction for a crime of violence, a controlled
substance offense, or a misdemeanor crime of domestic vio-
lence; or (ii) at the time of the offense was under a criminal justice
sentence, including probation, parole, supervised release, im-
prisonment, work release, or escape status.” Id. at n.13(B) (em-
phasis added). The government bears the burden of proving
by a preponderance of the evidence that this enhancement is
warranted. United States v. Johnson, 743 F.3d 196, 201 (7th Cir.
2014).
    Moody attacks as impermissibly speculative the district
court’s conclusion that he had reason to believe that his buy-
ers were barred from gun possession or that they intended to
use the guns in crimes. In his view, the court assumed that the
callers had heard about the train theft and were seeking to
buy guns that they knew were stolen. And from that premise,
the court inferred that the callers planned to use these guns in
other crimes, and, further, that Moody had reason to know it.
The PSR and sentencing memoranda, meanwhile, offered no
substantiation for this chain of inferences.
    The government counters that while Moody did not know
his buyers’ identities, he surely knew that they were in the
market for stolen guns. Common sense, the government adds,
No. 18-1837                                                      7

would say that few, if any, of these 13 anonymous buyers of
stolen guns would be permitted by federal law to possess
guns generally.
    But the only evidence that the government offered on this
point is Moody’s remark that he sold his share of the guns to
“different people who heard about it.” But what “it” refers to
is impossible to discern from the record. “It” might refer to
the train heist, or “it” might refer to a bunch of guns (which
may or may not be stolen) available for an off-the-books sale.
If “it” merely refers to a load of guns for sale, then Moody’s
statement simply establishes that he possessed stolen fire-
arms. But that criminal act is already accounted for by his con-
viction for possessing a stolen firearm and does not justify the
enhancement. See 18 U.S.C. § 922(g)(1). And the anonymous
participants’ interest in off-the-books gun sales might have
given Moody reason to believe that their purchases were un-
lawful, but not that their possession or use of the guns is un-
lawful. As Moody emphasizes, those who purchase guns un-
lawfully do not necessarily fall into the prohibited category
defined by U.S.S.G. § 2K2.1(b)(5). For example, Lori Shelton,
a lawful gun-owner identified in a codefendant’s sentencing
record, bought firearms from the heist. Shelton carried a valid
firearm license and intended to give the guns to her adult chil-
dren once they, too, obtained licenses. The government cor-
rectly notes that Shelton’s intentional purchase of stolen prop-
erty was itself a crime in Illinois, see 720 ILCS 5/16-1(a)(4), but
this did not make her a prohibited person under U.S.S.G. §
2K2.1 n.13(B).
    Moody’s case thus stands in contrast to those in which the
seller knew something more about the buyers than that they
were in the market for a gun. See, e.g., United States v.
8                                                           No. 18-1837

Rodriguez, 884 F.3d 679, 679–81 (7th Cir. 2018) (upholding en-
hancement where defendant and recipient discussed using
guns unlawfully); United States v. Jemison, 237 F.3d 911, 918
(7th Cir. 2001) (reasoning that it would be “naïve” to conclude
that Jemison had no reason to think guns he sold to a gang
would be used to commit other felonies; “the public [is] not
blissfully ignorant of the connection between criminal vio-
lence and street gangs”). Indeed, Moody’s case also stands in
contrast to that of his codefendants because in their case, the
government introduced evidence that they knew specific
buyers were prohibited persons.2 His case is more like United
States v. Green, 360 F. App’x. 521, 522–25 (5th Cir. 2010) (non-
precedential disposition), in which the Fifth Circuit rejected
the enhancement for a defendant who smuggled five guns to
two people in Mexico. The enhancement was based on the
district court’s supposition that guns in Mexico are predomi-
nantly used by drug-trafficking organizations. The Fifth Cir-
cuit held that this supposition was too big a leap. Id. at 525.
    In short, the government’s evidence that Moody sold guns
to “different people who heard about it” is an insufficient ba-
sis for concluding that Moody sold guns to 2 or more people
who satisfied the narrow criteria of U.S.S.G. § 2K2.1 n.13(A).
In concluding otherwise, the district court relied on a series of
inferences that were plainly too speculative to support a


    2 We might feel differently about this case if the government had pre-
sented more evidence (e.g., if the government had shown that Moody’s
buyers were connected to him and his train heist). But it is not clear from
the record—not even the presentence investigation report or the govern-
ment’s sentencing memo—what Moody knew or had reason to know
about who his buyers were or why they wanted guns, beyond his admis-
sion that his callers had “heard about it.”
No. 18-1837                                                     9

finding by a preponderance of the evidence. We therefore
agree with Moody that the enhancement was plainly im-
proper.
    In so holding, we are mindful that our precedents allow a
district court great leeway to make commonsense inferences.
See, e.g., United States v. Gilmore, 60 F.3d 392, 393–94 (7th Cir.
1995); see also United States v. Jemison, 237 F.3d 911, 918
(7th Cir. 2001). In Gilmore, we held that a district court did not
err by inferring that the defendant had reason to believe the
guns he “lost” would be used unlawfully, even though the
only evidence was that one of the guns was found at a crime
scene and Gilmore (the original gunowner) did not know the
identities of the new owners. 60 F.3d at 394. But in Moody’s
case, no such inference is available. Although 17 of the crew’s
111 firearms were found at crime scenes, no evidence ties any
of the guns found at crime scenes to those sold by Moody.
Because the inferential leap required by common sense is too
great here, the government has not met its burden of proof.
    Of course, this error is not reversible simply because it is
plain—we must also conclude that it affected Moody’s sub-
stantial rights and diminished the fairness, integrity, or repu-
tation of the judicial proceedings. The Supreme Court has re-
peatedly emphasized that when an unpreserved guideline er-
ror is plain, it typically affects both fundamental rights and
fairness by setting an incorrect range for the probable sen-
tence. See generally Molina-Martinez v. United States, 136 S. Ct.
1338 (2016); Rosales-Mireles v. United States, 138 S. Ct. 1897
(2018). That is true here. The district court gave no indication
that it chose a sentence “irrespective of the Guidelines range.”
Molina-Martinez, 136 S. Ct. at 1346. And without the enhance-
ment, Moody’s advisory Guidelines range would drop from
10                                                   No. 18-1837

121–151 months to 78–97 months. Because the district court’s
current 93-month sentence was designed to fall below the
range the judge had calculated, we cannot be confident that
the court would have been unwilling to go even lower.
    None of this is to say that Moody is assured a lighter sen-
tence on remand. Perhaps a revised PSR or other evidence
will cure any ambiguity. And even if the gun-traﬃcking
guideline does not apply, the district court may consider
whether, as a matter of the sentencing factors under 18 U.S.C.
§ 3553(a), Moody’s blindness to his buyers’ identities makes it
reasonable to refrain from going any lower. These possibili-
ties are for the district court to consider in the first instance.
                                 III.
    The judgment of the district court is VACATED and
REMANDED for further proceedings consistent with this de-
cision.
