                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0379n.06

                                           No. 19-4085


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                         FILED
 UNITED STATES OF AMERICA,                               )                         Jun 25, 2020
                                                         )                     DEBORAH S. HUNT, Clerk
        Plaintiff-Appellee,                              )
                                                         )
                                                                 ON APPEAL FROM THE
 v.                                                      )
                                                                 UNITED STATES DISTRICT
                                                         )
                                                                 COURT FOR THE
 ERIC GIBSON,                                            )
                                                                 NORTHERN DISTRICT OF
                                                         )
                                                                 OHIO
        Defendant-Appellant.                             )
                                                                         OPINION
                                                         )
                                                         )


       BEFORE:         BATCHELDER, STRANCH, and MURPHY, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. The narrow issue presented by this appeal is

whether a sentencing enhancement for possession of a stolen firearm pursuant to USSG

§ 2K2.1(b)(4)(A) can be applied absent a showing that the defendant knew the firearm was stolen.

We have previously held that § 2K2.1(b)(4)(A) may be applied as a strict liability enhancement.

See United States v. Murphy, 96 F.3d 846, 849 (6th Cir. 1996). Gibson argues that this holding

cannot survive our recent en banc decision in United States v. Havis, 927 F.3d 382 (6th Cir. 2019)

(en banc), because the strict liability rule is housed in the Guideline’s commentary and the text of

the Guideline itself does not bear that construction. But because the relevant commentary is an

interpretation of § 2K2.1(b)(4)(A), not an addition or modification to it, we find that the

enhancement does not include a scienter requirement, even after Havis. We therefore AFFIRM.
No. 19-4085, United States v. Gibson


                                       I.         BACKGROUND

       The facts of this case are not in dispute. On July 13, 2018, Eric Gibson attended a party at

an apartment complex in Cleveland, Ohio. For reasons unconnected to Gibson, the Cleveland

Police Department’s Gang Impact Unit arrived at the apartment building and arrested three men

in the lobby area for illegally possessing marijuana and firearms. Gibson was in the parking lot at

the time, and when the officers entered the area to secure the scene, he walked over to a red minivan

parked in the lot, crouched down for a few seconds, and then walked away. An officer saw him

do this, walked over, and found a firearm on the tire of the vehicle. Gibson was arrested. It later

turned out that the firearm had been previously reported as stolen. Gibson was indicted on one

count of illegally possessing a firearm, in violation of 18 U.S.C. § 922(g)(1). He pled guilty.

       At sentencing, the district court found that Gibson’s total offense level was 19. This

calculation included a two-level enhancement under § 2K2.1(b)(4)(A) for possession of a stolen

firearm. Gibson objected, arguing that the commentary attached to the Guideline impermissibly

altered the Guideline’s mens rea requirement. But the district court sided with the Government,

holding: “there’s a difference between additions and interpretations or clarifications, and here we

have a clarification or interpretation versus an addition.” Gibson appeals the district court’s

conclusion that § 2K2.1(b)(4)(A) applies as a strict liability enhancement.

                                            II.    ANALYSIS

   A. Standard of Review

       “We review de novo ‘the district court’s legal interpretation of the Guidelines, including

mixed questions of law and fact.’” United States v. Sands, 948 F.3d 709, 712–13 (6th Cir. 2020)

(quoting United States v. Settle, 414 F.3d 629, 630 (6th Cir. 2005)).




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    B. Discussion

        The only question we need to answer is whether Havis alters our prior holding that

§ 2K2.1(b)(4)(A) contains no scienter requirement. In 1996, we published two decisions that

arrived at seemingly contradictory conclusions regarding the predicate mens rea for the

enhancement to apply. In Murphy, we held that courts may apply § 2K2.1(b)(4) as a strict liability

provision. 96 F.3d at 849. Six weeks later, the amended opinion in United States v. Roxborough

reasoned: “we have found nothing that persuades us that the § 2K2.1(b)(4) enhancement is . . . to

be imposed by way of strict, or virtually strict, liability.” 99 F.3d 212, 214 (6th Cir. 1996).1 In a

later unpublished opinion, we concluded that “[t]o the extent that Roxborough conflicts with the

earlier-decided Murphy, we are not constrained to follow it.” United States v. Burns, 109 F. App’x

52, 57 (6th Cir. 2004); see also Sands, 948 F.3d at 713. Gibson does not fight this conclusion. In

his Reply Brief he writes: “[t]his Court’s own precedent, both before and after Roxborough, hold

the enhancement does not require a mens rea.” He argues instead that Roxborough’s rationale,

considered in light of Havis, shows that Murphy is no longer good law.

        At issue in Havis was whether attempt crimes fall within the purview of a “controlled

substance offense” under USSG § 4B.1.2. While the plain language of the Guideline said “nothing

about attempt crimes,” the commentary indicated that attempt crimes were within the ambit of the

Guideline. Havis, 927 F.3d at 385. Sitting en banc, we reasoned that the “[c]ommentary binds

courts only ‘if the guideline which the commentary interprets will bear the construction.’” Id. at

386 (quoting Stinson v. United States, 508 U.S. 36, 46 (1993)).                      “Unlike the Guidelines

themselves,” we explained, “commentary to the Guidelines never passes through the gauntlets of



1
 Roxborough was originally published on August 26, 1996. 94 F.3d 213 (6th Cir. 1996). It was later withdrawn and
superseded by an amended opinion published on November 5, 1996. 99 F.3d 212 (6th Cir. 2016). Murphy was
decided on September 27, 1996, after the original decision in Roxborough but before the amended opinion was filed.


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No. 19-4085, United States v. Gibson


congressional review or notice and comment.” Id. And “because commentary has no independent

legal force,” it serves to interpret the text of the Guideline itself; where the commentary replaces,

modifies, or expands the Guideline, the text alone controls. Id. Comparing the text of the

Guideline and the Application Note at issue, we found the latter to be an impermissible expansion

of the former because the Guideline “expressly names the crimes that qualify” and “none are

attempt crimes.” Id.

       Applying Havis here, Gibson contends that the text of the Guideline will not bear the

Government’s strict liability construction. The text of § 2K2.1(b)(4)(A), in full, reads: “[i]f any

firearm was stolen, increase by two levels.” Application Note 8(B), meanwhile, states that the

enhancement “applies regardless of whether the defendant knew or had reason to believe that the

firearm was stolen.”     Gibson argues that “[f]ollowing Havis, Application Note 8(B) . . .

impermissibly expands the scope of the guideline text by adding a strict liability directive that is

not listed in the text of the guideline.” Enter Roxborough. There, we reasoned that “if the

enhancement is to be imposed at all, it must be imposed in accordance with the ‘relevant conduct’

provisions of the Sentencing Guidelines,” which Gibson says is, in effect, a mens rea requirement.

99 F.3d at 214; see USSG § 1B1.3. Even if Roxborough was “wrongly decided” as a result of our

intervening decision in Murphy, Gibson argues that Havis still proves his point. The commentary’s

strict liability reference is an impermissible addition to the Guideline’s text because read alone,

§ 2K2.1(b)(4) includes a mens rea requirement.

       But performing the comparative inquiry outlined in Havis does not support this claim.

While the Application Note in Havis added a new category of crime to an exhaustive list contained

in the Guideline text itself, here, the enhancement’s text appears to bear the strict liability

interpretation contained in the commentary. Stinson, 508 U.S. at 42–43. The text does not contain




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No. 19-4085, United States v. Gibson


a scienter requirement. Cf. USSG § 2K1.3(b)(2) (“If the offense involved any explosive material

that the defendant knew or had reason to believe was stolen, increase by 2 levels.”). The factual

contexts of the two cases, moreover, are distinct. Roxborough’s mens rea analysis pertained to the

defendant’s culpability for firearms that she did not possess but that the district court determined

to be foreseeable within a “jointly undertaken criminal activity.” 99 F.3d at 215. And as noted in

Burns, Roxborough relied on the inability of the Government to prove that “the serial numbers

were obliterated at the time” of the offense.2 109 F. App’x at 57. Roxborough therefore is factually

distinguishable: this case does not involve a conspiracy theory of liability and Gibson concedes

that the firearm had been previously stolen at the time of the instant offense. Nothing in Gibson’s

Havis analysis shows that the commentary at issue does more than “interpret [a] guideline or

explain how it is to be applied.” Stinson, 508 U.S. at 42 (quoting USSG § 1B1.7).3

        There may be policy reasons for district courts to decline to apply a § 2K2.1(b)(4)(A)

enhancement, especially where the Government cannot show the defendant knew the firearm was

stolen. See, e.g., United States v. Faison, No. GJH-19-27, 2020 WL 815699, at *7 (D. Md. Feb.

18, 2020). And yet, we find no basis to hold, as a matter of law, that the enhancement applies only

where a knowledge requirement is satisfied.                      Circuit courts have uniformly upheld

§ 2K2.1(b)(4)(A)’s application where the defendant’s offense involved a stolen firearm, even

where the defendant did not know the firearm used was stolen. Murphy, 96 F.3d at 849; United

States v. González, 857 F.3d 46, 53–56 (1st Cir. 2017); United States v. Taylor, 659 F.3d 339, 343–

44 (4th Cir. 2011); United States v. Thomas, 628 F.3d 64, 68–70 (2d Cir. 2010); United States v.


2
 § 2K2.1(b)(4) similarly applies where an offense involves a firearm with an “altered or obliterated serial number.”
3
 Additionally, Gibson argues that after Rehaif v. United States, 139 S. Ct. 2191 (2019), the presumption in favor of
scienter should apply to our interpretation of the Sentencing Guidelines, as it does to statutory provisions. But
Gibson’s cursory mention of this argument and citation to Rehaif alone, which was not a Guidelines case, is not
sufficiently developed to advance this argument. See United States v. Hurley, 278 F. App’x 574, 575 (6th Cir. 2008);
McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997).



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Martinez, 339 F.3d 759, 761–62 (8th Cir. 2003); United States v. Richardson, 8 F.3d 769, 770

(11th Cir. 1993); United States v. Goodell, 990 F.2d 497, 499 (9th Cir. 1993); United States v.

Schnell, 982 F.2d 216, 220–22 (7th Cir. 1992); United States v. Mobley, 956 F.2d 450, 454–59 (3d

Cir. 1992); United States v. Singleton, 946 F.2d 23, 26–27 (5th Cir. 1991). Gibson’s argument

under Havis does not change this outcome.

                                       III.   CONCLUSION

       For the foregoing reasons we AFFIRM.




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