                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2007

USA v. Shall
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2710




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                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 06-2710


                          UNITED STATES OF AMERICA,

                                           v.

                                 JESSICA M. SHALL,

                                                Appellant




                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                          (D.C. Criminal No. 04-cr-00016J)
                         District Judge: Hon. Kim R. Gibson


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 12, 2007

                    BEFORE: SMITH and COWEN, Circuit Judges
                           and YOHN*, District Judge

                                 (Filed: April 23, 2007)


                                       OPINION




*Honorable William H. Yohn Jr., Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
COWEN, Circuit Judge.

       Jessica M. Shall appeals from a judgment of conviction and sentence entered by the

United States District Court for the Western District of Pennsylvania, following her plea of

guilty to three charges of making a false statement to a federally licensed firearms dealer,

in violation of 18 U.S.C. § 922(a)(6). Shall challenges the District Court’s denial of a

downward adjustment for mitigating role pursuant to U.S.S.G. § 3B1.2. For the reasons

stated below, we will affirm.

                                              I.

       Because we write only for the parties, we recite only those facts necessary to our

disposition. On four separate occasions between April 15, 2003 and August 25, 2003,

Shall purchased four to six firearms from a licensed firearms dealer in Altoona,

Pennsylvania. In addition, on April 21, 2003, Shall purchased two more firearms from

licensed firearms dealers, one from a dealer in Duncansville, Pennsylvania, and the other

from a dealer in Hollidaysburg, Pennsylvania. For each transaction, Shall completed

Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) form 4473, representing

that she was the actual purchaser of the firearms.

       During interviews with ATF agents conducted on August 26, 2003, and September

4, 2003, Shall admitted that she was a “straw-purchaser” of twenty-three firearms from

three federally licensed dealers. Shall told the agents that she made the purchases for, and

delivered firearms to, two individuals in Jersey City, in exchange for $250 to $300 for


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each gun. She admitted to the agents that she knew that purchasing the guns under those

circumstances was against the law. In a subsequent statement to ATF agents, Shall

continued to admit that she was a straw-purchaser of the firearms, but claimed that her

boyfriend, Eric Sager, concocted the entire scheme. She claimed that Sager arranged and

negotiated the sales; instructed her on where to buy the guns, what type of guns to buy, and

how many to buy; furnished her with money to buy the guns; transported the guns to a

New Jersey buyer; and then kept the proceeds.

       At court proceedings on June 2, 2004, Shall waived her right to an indictment by

grand jury and pled guilty to the three charges of making a false statement to a federally

licensed firearms dealer, in violation of 18 U.S.C. § 922(a)(6). As part of a proffer of

proof, the government indicated that the evidence would show that Shall knew that her

statements on the ATF forms were false, in that she purchased the firearms on behalf of

other persons. Shall agreed that the information proffered by the government was true to

the best of her knowledge.

       Prior to sentencing, Shall filed a request for a downward adjustment for mitigating

role pursuant to U.S.S.G. § 3B1.2. She sought a four-level adjustment for her role as a

minimal participant, or, alternatively, either a two-level adjustment as a minor participant

or a three-level adjustment for her role falling between minimal participant and minor

participant. At sentencing, Shall argued that she was entitled to a downward adjustment




                                              3
for mitigating role because her participation was limited to showing her identification to

the firearms dealers and taking possession of the firearms.

       Based upon the information presented at the sentencing hearing, the District Court

found that Shall was not the sole participant in the firearms offense, but denied her an

adjustment under U.S.S.G. § 3B1.2 for a mitigating role, reasoning:

       Ms. Shall, I believe that you are sorry for what you did, but the fact remains
       that your actions resulted in 23 firearms placed into the stream of commerce,
       and which could have been used in serious offenses and crimes. This type of
       conduct can’t be tolerated. I do not find that your role in this offense is a
       minor role. Only you know why you did it, and if others were significantly
       involved then certainly their conduct is not to be condoned either, but neither
       is yours.

(App. at 59.) The District Court sentenced Shall to a term of imprisonment of twelve

months and one day for each of the three counts, to be served concurrently, and three years

of supervised release for each count, also to be served concurrently.

                                            II.

       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We employ a

mixed standard of review when considering whether a defendant is entitled to a downward

adjustment as a minor participant. United States v. Isaza-Zapata, 148 F.3d 236, 237 (3d

Cir. 1998). When the District Court’s denial of a downward departure is based primarily

on a legal interpretation of the Sentencing Guidelines, our review is plenary. Id. If the

District Court’s denial was based on factual determinations, we review for clear error. Id.

Because we conclude based upon the record that the District Court’s denial of Shall’s


                                              4
motion for downward adjustment rested upon factual determinations, we will review for

clear error.1

       Shall’s sole contention on appeal is that the District Court did not conduct a proper

analysis in denying her a downward adjustment. She faults the District Court for failing to

conduct an analysis of the factors set forth in United States v. Headley, 923 F.2d 1079,

1084 (3d Cir. 1991), and for failing to make express findings of fact concerning her

culpability relative to the culpability of the other participants.

       In Headley, we delineated a set of factors for the district court to consider in

determining whether a defendant should be considered a minor participant in an offense:

“[T]he culpability of a defendant courier must depend necessarily on such factors as the

nature of the defendant’s relationship to other participants, the importance of the

defendant’s actions to the success of the venture, and the defendant’s awareness of the

nature and scope of the criminal enterprise.” Id. (quoting United States v. Garcia, 920

F.2d 153, 155 (2d Cir. 1990)). The district court need not, however, explicitly weigh the

factors set forth in Headley, although the record should support its decision. See United

States v. Carr, 25 F.3d 1194, 1208 (3d Cir. 1994) (affirming sentence even though “the

district court did not specifically follow the course set out in Headley” because “the record




  1
     Contrary to Shall’s contention otherwise, this case is distinguishable from
Isaza-Zapata, 148 F.3d at 238, and United States v. Rodriguez, 342 F.3d 296, 297-98 (3d
Cir. 2003), because in both of those cases we were unable to determine the basis of the
district court’s ruling and the standard of review to apply.

                                                5
amply support[ed] the district court’s conclusion that [the defendant] was not a minor

participant”).

       Although the District Court did not expressly consider the Headley factors in this

case, we conclude that the record supports its denial of a downward adjustment based

upon an application of those factors. First, Shall had a personal relationship with Sager

and knew the identities of the two New Jersey firearms buyers. As the government

indicated at the sentencing hearing, Shall was able to provide ATF agents with detailed

information about the firearms buyers, including a physical description of them, their

location, and a description of their vehicles. In addition, on at least three occasions, Shall

accompanied Sager to New Jersey to deliver the firearms to the buyers. Second, Shall’s

actions were critical to the success of the firearms venture. She was the sole purchaser of

the twenty-three firearms, and for each transaction, signed the ATF form representing that

she was the actual purchaser of the firearms. Third, and finally, Shall was aware that she

was purchasing firearms on behalf of others in exchange for money and that her conduct

was unlawful. Based upon these circumstances, we cannot conclude that the District

Court clearly erred in denying Shall’s motion for a downward departure. See Carr, 25

F.3d at 1208.

       For the foregoing reasons, the judgment of the District Court entered on May 12,

2006 will be affirmed.




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