           Case: 19-11785   Date Filed: 01/21/2020   Page: 1 of 7


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11785
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:18-cr-00338-ACA-SGC-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                  versus


JAMES MICHAEL THOMAS CRISCOE,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________


                            (January 21, 2020)

Before WILSON, JORDAN, and NEWSOM, Circuit Judges.

PER CURIAM:
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      With the benefit of a plea bargain, James Criscoe pled guilty to two counts

of possession of a firearm by a convicted felon, in violation of 18 U.S.C.

§ 922(g)(1). The district court sentenced him to concurrent terms of 51 months’

imprisonment on each count. In this case, Criscoe appeals his sentences. He

argues that the district court clearly erred by applying a firearm-trafficking

enhancement under U.S.S.G. § 2K2.1(b)(5) because there was insufficient

evidence to find, or reasonably infer, that he transferred firearms to a person he

knew or had reason to know would possess them unlawfully. We agree and

therefore vacate Criscoe’s sentences and remand for resentencing.

                                  BACKGROUND

      In January 2018, a confidential police informant (CI) told police that he

could purchase $50.00 worth of methamphetamine and a .38 caliber revolver from

Criscoe, a previously convicted felon and known drug user. The police provided

the CI with the funds to make this purchase, and on January 9, Criscoe sold the CI

a revolver and two “plastic baggies” of methamphetamine. During the transaction,

Criscoe and the CI discussed a pistol that Criscoe wanted to sell. The CI debriefed

police, who provided him funds to purchase the pistol. The following day, Criscoe

sold the CI the pistol. Criscoe was arrested shortly after the second transaction.

Neither firearm had been reported stolen, and neither had altered serial numbers.




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      After Criscoe entered his guilty plea, the Probation Office prepared a

presentence investigation report (PSR). Under U.S.S.G. § 2K2.1(a)(5), Criscoe’s

base offense level was 14. Of the various enhancements and adjustments to his

offense level, only one is relevant here: under § 2K2.1(b)(5), a four-level

enhancement was applied for trafficking in firearms. According to the PSR, this

enhancement was warranted because Criscoe transferred two firearms to the CI

knowing that it was unlawful for the CI to possess the firearms.

      Before sentencing, Criscoe objected to the § 2K2.1(b)(5) enhancement,

arguing that there was no evidence that he knew or had reason to believe that the

CI could not possess the firearms or intended to use or dispose of them unlawfully.

Probation argued that since he provided the CI with methamphetamine, Criscoe

knew or should have known that he was selling to an individual who could not

possess a firearm. At sentencing, Criscoe repeated his objection to the

§ 2K2.1(b)(5) enhancement, and the government repeated Probation’s arguments.

The district court overruled the objection and applied the enhancement. In its

Statement of Reasons, the district court noted that it adopted the PSR without

change.

                                  DISCUSSION

      We review a “district court’s application of the sentencing guidelines de

novo and its factual findings for clear error.” United States v. Asante, 782 F.3d


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639, 642 (11th Cir. 2018). “We may affirm a sentencing enhancement for any

reason supported by the record, even if not relied upon by the district court.”

United States v. Matchett, 802 F.3d 1185, 1191 (11th Cir. 2015) (internal quotation

mark omitted). But, if we affirm on other grounds, “the alternative route for

affirming [may] not require facts that remain to be found by the district court.”

United States v. Chitwood, 676 F.3d 971, 976 (11th Cir. 2012).

      When reviewing for clear error, we will not disturb a district court’s findings

unless “we are left with a definite and firm conviction a mistake has been made.”

United States v. Dimitrovski, 782 F.3d 622, 628 (11th Cir. 2015). We interpret the

Guidelines “in light of the Commentary and Application Notes, which are binding

unless they contradict the Guidelines’ plain meaning.” Id. When the government

is seeking to apply a sentence enhancement over a defendant’s factual objection,

the government “has the burden of introducing sufficient and reliable evidence to

prove the necessary facts by a preponderance of the evidence.” United States v.

Washington, 714 F.3d 1358, 1361 (11th Cir. 2013) (internal quotation marks

omitted). “This burden requires the trier of fact to believe that the existence of a

fact is more probable than its nonexistence.” United States v. Almedina, 686 F.3d

1312, 1315 (11th Cir. 2012) (internal quotation mark omitted). While a district

court may rely on undisputed factual statements in the PSR and may make




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reasonable inferences from the facts, it may not rely on speculative inferences. See

United States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (per curiam).

      Section 2K2.1(b)(5) provides for a four-level enhancement if the defendant

is “engaged in the trafficking of firearms.” As relevant here, the enhancement

applies if the defendant transferred two or more firearms, and knew or had reason

to know that the transfer was to a person: (1) whose possession of the firearms

would be unlawful; or (2) who intended to use or dispose of the firearms

unlawfully. U.S.S.G. § 2K2.1, comment. (n.13(A)). A person whose possession

of the firearms would be unlawful is either 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.

U.S.S.G. § 2K2.1, comment. (n.13(B)). When determining whether a defendant

knew his conduct would result in the transfer of firearms to someone that would

trigger the trafficking enhancement, courts look “to the circumstances known to

the defendant.” See Asante, 782 F.3d at 644.

      Here, to support the § 2K2.1(b)(5) enhancement on the basis that Criscoe

sold the firearms to an unlawful possessor, the government needed to provide

sufficient evidence to conclude that Criscoe knew or had reason to know that he

sold the firearms to a person who satisfied the narrow criteria of § 2K2.1(b)(5). It
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did not. Therefore, the district court’s adopted conclusion—that the CI’s purchase

of methamphetamine gave Criscoe reason to believe he provided firearms to an

unlawful possessor—was a clear error. A plain reading of § 2K2.1(b)(5)’s

commentary compels this result as the possession of a firearm as a drug user is not

unlawful possession for the purposes of § 2K2.1(b)(5).

      However, the government argues that the district court provided another

basis for the enhancement because it found that Criscoe knew or had reason to

know the CI would illegally use or dispose of the firearms. Having reviewed the

record, we are not persuaded by this argument. The parties and the district court

discussed both bases for the § 2K2.1(b)(5) enhancement at Criscoe’s sentencing

hearing. But the district court did not make clear upon which basis it ultimately

relied. Instead, in its Statement of Reasons, the district court adopted the PSR

without change, and the PSR only attempts to support that Criscoe sold the

firearms to a prohibited person. In short, because the record does not contain a

finding that Criscoe knew or had reason to know the CI would illegally use or

dispose of the firearms, we cannot affirm the district court on that basis.

      Alternatively, the government argues that we can affirm because the record

amply supports a finding that the CI intended to illegally use or dispose of the

firearms. We reject this suggestion because this alternative route to affirmance




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would “require facts that remain to be found by the district court.” See Chitwood,

676 F.3d at 976.

      For the foregoing reasons, we vacate Criscoe’s sentence and remand for

further proceedings consistent with this decision.

      VACATED AND REMANDED.




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