                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            SEPT 18, 2008
                             No. 08-10718
                                                          THOMAS K. KAHN
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                  D. C. Docket No. 07-00001-CR-RLV-4

UNITED STATES OF AMERICA,


                                                           Plaintiff-Appellee,

                                  versus

INGRID ARNETH,
JEDSON EDWARD LEIST,
a.k.a. Jedson Leist,

                                                      Defendants-Appellants.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                          (September 18, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:

      Appellant Ingrid Arneth appeals her convictions and sentences on seven

counts of making false statements to a federally licensed firearms dealer, in

violation of 18 U.S.C. § 924(a)(1)(A) (Counts Seven through Thirteen). Appellant

Jedson Edward Leist appeals his sentences imposed by the district court pursuant

to his convictions for: possession of a firearm by a convicted felon, in violation of

18 U.S.C. §§ 922(g)(1), 924(a) (Counts One and Fourteen); possession of a

firearm after being convicted of a misdemeanor crime of domestic violence, in

violation of 18 U.S.C. §§ 922(g)(9), 924(a) (Count Two and Fifteen); submission

of false documents, in violation of 18 U.S.C. § 1001(a)(3) (Count Three);

commission of mail fraud, in violation of 18 U.S.C. § 1341 (Count Five);

commission of wire fraud, in violation of 21 U.S.C. § 1343 (Count Six); and false

statements to a federally licensed firearms dealer, in violation of 18 U.S.C.

§ 924(a)(1)(A) (Counts Seven through Thirteen).

                      I. Arneth’s Convictions and Sentences

      The charges against Arneth stemmed from her purchase of several firearms.

An individual who purchases a firearm must complete an Alcohol, Tobacco, and

Firearms (“ATF”) Form 4473, and on this form the purchaser must indicate that

they are the “actual buyer” of the firearm. The government charged that Arneth

                                          2
falsely stated on such forms that she was the “actual buyer” in connection with the

purchase of eight firearms, because she in fact purchased the firearms as an

unlawful “straw man” buyer on behalf of her husband Leist. On appeal, Arneth

raises several issues with regard to her convictions and sentences, and we address

each one in turn.

      First, Arneth argues that the “actual buyer” language on ATF Form 4473 is

unconstitutionally vague because it does not allow for joint ownership of firearms.

Therefore, a person of ordinary intelligence would not be put on notice as to the

illegality of her actions when buying a firearm to be kept in the marital home in a

joint-ownership situation.

      Because Arneth failed to raise this constitutional claim in this district court,

we review for plain error only. United States v. Nash, 438 F.3d 1302, 1304 (11th

Cir. 2006). Under this standard, there must be (1) error, (2) that is plain, (3) and

that affects the defendant’s substantial rights. Id. (citation omitted). “If these

three criteria are met, we may reverse for plain error if it ‘seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.’” Id. (quoting

United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776, 123 L. Ed. 2d

508 (1993)). However, “[a]n error cannot be plain if such error is not obvious or

clear under current law.” United States v. Hernandez-Gonzalez, 318 F.3d 1299,

                                           3
1302 (11th Cir. 2003); see United States v. Aguillard, 217 F.3d 1319, 1321 (11th

Cir. 2000) (“[W]here neither the Supreme Court nor this Court has ever resolved

an issue, and other circuits are split on it, there can be no plain error in regard to

that issue.”).

       Here, Arneth cites no controlling law from either the Supreme Court or this

court providing that the “actual buyer” language on ATF Form 4473 is

unconstitutionally vague. As a result, any error would not be “plain” for purposes

of plain error review. See Hernandez-Gonzalez, 318 F.3d at 1302. Accordingly,

Arneth’s argument does not merit relief.

       Second, Arneth argues that the government improperly joined her in the

indictment with Leist and a third codefendant, Carey Higgins, under Federal Rule

of Criminal Procedure 8(b). Arneth contends that she was charged only with

making false statements on ATF forms, whereas the remaining counts against

Leist and Higgins were based on their fraudulent actions in securing Leist’s

certification as a police officer. Because her only connection to her codefendants

is her status as Leist’s spouse, Arneth argues that this is an insufficient basis to

join them all in the same indictment. Moreover, Arneth contends that she suffered

prejudice as a result of the misjoinder.




                                           4
      A claim of misjoinder of defendants under Rule 8(b) presents a question of

law subject to plenary review. United States v. Liss, 265 F.3d 1220, 1227 (11th

Cir. 2001). Rule 8(b) provides that:

      The indictment or information may charge 2 or more defendants if
      they are alleged to have participated in the same act or transaction, or
      in the same series of acts or transactions, constituting an offense or
      offenses. The defendants may be charged in one or more counts
      together or separately. All defendants need not be charged in each
      count.

Fed.R.Crim.P. 8(b). “[I]n order to establish that the [codefendants] have engaged

in the ‘same series of acts or transactions’ under Rule 8(b) the government must

demonstrate that the acts alleged are united by some substantial identity of facts

and/or participants.” United States v. Morales, 868 F.2d 1562, 1569 (11th Cir.

1989). We construe Rule 8(b) broadly in favor of the initial joinder of defendants.

United States v. Weaver, 905 F.2d 1466, 1476 (11th Cir. 1990) (citation omitted).

Moreover, “[i]f improper joinder under Rule 8(b) occurred, reversal is not required

if the misjoinder was harmless error.” Id. at 1477. Accordingly, “[a] defendant

must show actual prejudice through a substantial and injurious effect on the jury's

verdict before [she] can obtain a new trial.” Liss, 265 F.3d at 1227.

      Here, the record demonstrates that Arneth was not improperly joined in the

same indictment with her codefendants. The firearms in Counts Seven through



                                          5
Eight and Ten through Thirteen, on which both Arneth and Leist were charged,

formed the basis, in part, for the possession charges against Leist in Counts One

and Two. Accordingly, “the acts alleged were united by some substantial identity

of facts and . . . participants.” Morales, 868 F.2d at 1569.

       Third, Arneth argues that the district court should have granted her motion

to sever her trial based on her need for Leist’s exculpatory testimony. Leist would

have explained that Arneth purchased the guns for herself, but that he had access

to them as with all of their marital property, and he would have testified that

Arneth was unaware that he was a convicted felon and prohibited from buying

firearms.

       We review the denial of a motion to sever for abuse of discretion.1 United

States v. Browne, 505 F.3d 1229, 1268 (11th Cir. 2007), cert. denied, 128 S. Ct.

2962 (2008). “[I]n order to show an abuse of discretion, a defendant must satisfy

the heavy burden of demonstrating compelling prejudice from the denial of a

motion to sever.” United States v. Novaton, 271 F.3d 968, 989 (11th Cir. 2001)

(quotations omitted). To establish the need for severance based on the defendant’s

       1
         A motion to sever is governed by Federal Rule of Criminal Procedure 14(a), which
provides: “[i]f the joinder of offenses or defendants in an indictment, an information, or a
consolidation for trial appears to prejudice a defendant or the government, the court may order
separate trials of counts, sever the defendants' trials, or provide any other relief that justice
requires.” Fed.R.Crim.P. 14(a).


                                                 6
desire to offer the exculpatory testimony of a codefendant, the defendant must first

demonstrate: “(1) a bona fide need for the testimony; (2) the substance of the

desired testimony; (3) the exculpatory nature and effect of the desired testimony;

and (4) that the codefendant would indeed have testified at a separate trial.”

United States v. Cobb, 185 F.3d 1193, 1197 (11th Cir. 1999) (citations and

quotations omitted). Our cases examining severance motions based on the need

for a codefendant’s exculpatory testimony “have often looked hard at the

substance of the affidavits proffered by the co-defendant who purportedly would

testify in a separate trial.” Novaton, 271 F.3d at 989. Moreover, “statements

concerning the testimony that would become available by severing trials must be

specific and exonerative, rather than conclusory or self-serving, in order to justify

severance.” Id. at 990.

      Arneth has not shown that the district court abused its discretion in denying

her motion to sever based on the need for Leist’s exculpatory testimony. Arneth

provides no basis to support her assertions as to the substance of Leist’s potential

testimony, nor does she cite to anything in the record indicating that Leist would

even testify at a separate trial. As a result, we conclude that Arneth has not met

her heavy burden of demonstrating compelling prejudice resulting from the denial

of her motion to sever.

                                          7
       Fourth, Arneth argues that the district court erred in denying her motion for

judgment of acquittal under Federal Rule of Criminal Procedure 29, because the

evidence was insufficient to sustain her convictions. She contends that the

inferences to be drawn from the evidence at trial were not inconsistent with every

reasonable hypothesis of innocence, because there was testimony that one sales

clerk thought that Arneth was purchasing guns for herself, that Arneth would

shoot firearms at the firing range, that one of the weapons was an actual gift to her

husband, that Arneth kept the firearms in her home, and that she frequently sold or

traded the firearms herself.

       We review the sufficiency of the evidence de novo.2 United States v. Faust,

456 F.3d 1342, 1345 (11th Cir.), cert. denied, 127 S. Ct. 615 (2006). “[W]e must

view the evidence in the light most favorable to the Government and decide

whether a reasonable juror could have reached a conclusion of guilt beyond a

reasonable doubt.” Id. “The jury is free to choose among alternative reasonable

interpretations of the evidence . . . and the government's proof need not exclude

every reasonable hypothesis of innocence.” United States v. Tampas, 493 F.3d


       2
         Federal Rule of Criminal Procedure 29(a) provides: [a]fter the government closes its
evidence or after the close of all the evidence, the court on the defendant's motion must enter a
judgment of acquittal of any offense for which the evidence is insufficient to sustain a
conviction. Fed. R. Crim. P. 29(a).


                                                 8
1291, 1298 (11th Cir. 2007) (internal citation and quotations omitted). “The jury

gets to make any credibility choices, and we will assume that they made them all

in the way that supports the verdict.” United States v. Thompson, 473 F.3d 1137,

1142 (11th Cir. 2006), cert. denied, 127 S. Ct. 2155 (2007).

      Section 924(a)(1)(A) prohibits “knowingly mak[ing] any false statement or

representation with respect to the information required by this chapter to be kept in

the records of a person licensed under this chapter.” 18 U.S.C. § 924(a)(1)(A). A

false representation on an ATF Form 4473 as to the identity of the actual buyer of

a firearm constitutes a violation of § 924(a)(1)(A). United States v. Nelson, 221

F.3d 1206, 1209-10 (11th Cir. 2000). Accordingly, an unlawful “straw purchase”

occurs where an ineligible buyer uses a lawful “straw man” buyer to obtain a

firearm, and where the “straw man” buyer falsely represents on an ATF Form 4473

that she is the actual buyer of the firearm. See id. at 1209-10; see also 18 U.S.C.

§ 2 (“Whoever commits an offense against the United States or aids, abets,

counsels, commands, induces or procures its commission, is punishable as a

principal.”).

      We conclude from the record that the evidence was sufficient to sustain

Arneth’s convictions for unlawful “straw purchases” of firearms under

§ 924(a)(1)(A), as a reasonable juror could have concluded beyond a reasonable

                                          9
doubt that she falsely stated on ATF forms that she was the “actual buyer” of the

firearms at issue.

      Lastly, Arneth argues that the court erred in calculating her guidelines

range. The court counted 29 guns as relevant conduct, but Arneth only signed 22

ATF forms. Moreover, the court failed to reduce her offense level to level six

under U.S.S.G. § 2K2.1(b)(2), Arneth argues, because the government failed to

show that she purchased the firearms for anything other than lawful purposes.

      “We review the district court's factual findings for clear error and the court's

application of the sentencing guidelines to the facts de novo.” United States v.

McGuinness, 451 F.3d 1302, 1304 (11th Cir. 2006). The government must

establish the evidence necessary to support a sentencing enhancement by a

preponderance of the evidence, whereas the defendant has the burden of proving

the applicability of a provision that would reduce her offense level. See United

States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir.), cert. denied, 127 S. Ct.

2964 (2007).

      Section 2K2.1 of the guidelines applies to violations of 18 U.S.C. § 924(a),

and it provides for a 4-level increase if the number of firearms involved was

between 8 and 24, and a 6-level increase if the number of firearms was between 25

and 99. U.S.S.G. §§ 2K2.1(b)(1)(B) and (C). For purposes of determining the

                                         10
number of firearms involved as a specific offense characteristic under

§ 2K2.1(b)(1), relevant conduct includes “all acts and omissions committed, aided,

abetted, counseled, commanded, induced, procured, or willfully caused by the

defendant . . . that occurred during the commission of the offense[s] of

conviction.” See U.S.S.G. 1B1.3(a)(1)(A). In addition, § 2K2.1(b)(2) instructs

that “[i]f the defendant . . . possessed all ammunition and firearms solely for

lawful sporting purposes or collection, and did not unlawfully discharge or

otherwise unlawfully use such firearms or ammunition, decrease the offense level

determined above to level 6.” U.S.S.G. § 2K2.1(b)(2). However, “a defendant

must possess the firearm solely for sporting purposes to qualify for a reduction

under U.S.S.G. § 2K2.1(b)(2).” United States v. Caldwell, 431 F.3d 795, 800

(11th Cir. 2005).

      We conclude from the record that Arneth has not shown that the court

committed clear error by including at least 25 firearms as relevant conduct

occurring during the commission of the unlawful straw purchases for purposes of

§ 2K2.1(b)(1)(C). Moreover, Arneth has not demonstrated that a base offense

level of six should have applied under § 2K2.1(b)(2). As a result, we affirm

Arneth’s convictions and sentences.

                                II. Leist’s Sentences

                                          11
       Leist’s aforementioned convictions were based on the following facts.3

Leist, a convicted felon, applied for a position with the Rockmart, Georgia, Police

Department, and during this process he affirmed that he had no prior felony

convictions. Leist brought his teenage nephew to the police station, and he and

another officer performed a mock-booking of the nephew to demonstrate what

would occur if the nephew was arrested. The nephew’s fingerprints were taken on

the type of fingerprint card that was used for applicants, and this card was then

submitted to the Rockmart Police Department and to the Federal Bureau of

Investigation (“FBI”) for purposes of a background check on Leist. The FBI

concluded that the fingerprints did not match those of anyone arrested or

convicted of any crimes, the FBI faxed this information to the Rockmart Police

Department, and Leist was ultimately hired as a police officer. Several months

later, Leist applied for a position with the Haralson County Sheriff’s Department,

and a background investigation revealed that he had been convicted of a felony

and a domestic violence misdemeanor in Colorado. Leist was thereafter arrested

in possession of several firearms. In calculating Leist’s guidelines range, the

district court applied a four-level enhancement under U.S.S.G. § 2K2.1(b)(6),



       3
         Leist was also convicted on the seven counts of making false statements to a federally
licensed firearms dealer.

                                               12
based on the finding that Leist possessed firearms as a police officer in connection

with his fraudulent acts in the application process, because it was an “ongoing

fraud.”

      On appeal, Leist argues that the district court erred in enhancing his offense

level under § 2K2.1(b)(6), because his possession of firearms as a police officer

did not facilitate the commission of another felony offense. The fraudulent acts in

Counts Three, Five, and Six all occurred before Leist became a police officer and

possessed firearms in connection with his job, and his fraud was only continuing

in the sense that his prior felony convictions were not discovered. However, he

took no further actions to perpetuate his fraudulent conduct in the application

process. Moreover, he contends that the court’s reasons in support of the

enhancement were flawed, because Leist was not pretending to be a police officer.

Rather, he was actually hired as a police officer, and his possession of firearms in

that capacity did not facilitate the covering up of his prior convictions.

      Section 2K2.1(b)(6) of the guidelines provides for a four-level enhancement

“[i]f the defendant used or possessed any firearm or ammunition in connection

with another felony offense[.]” U.S.S.G. § 2K2.1(b)(6). According to the

guidelines commentary, the four-level enhancement in § 2K2.1(b)(6) applies “if

the firearm . . . facilitated, or had the potential of facilitating, another felony

                                            13
offense.” Id., cmt. (n.14(A)). “Another felony offense” is defined as “any Federal

. . . offense, other than the . . . firearms possession or trafficking offense,

punishable by imprisonment for a term exceeding one year.” Id., cmt. (n.14(C)).

      The undisputed facts in this case established that Leist possessed a firearm

in connection with his scheme to defraud the City of Rockmart. For

approximately one year Leist carried a firearm while posing as a Rockmart City

police officer. Leist attempts to escape culpability by arguing that he was

“required” to use a firearm in connection with the scheme to defraud. Leist

fraudulently obtained a position as a Rockmart police officer and the use of a gun

and the donning of the police uniform both perpetrated his scheme. If Leist had

refused to wear a gun or uniform, it is highly unlikely that he could have

effectuated his fraud. Thus, we conclude that the district court did not clearly err

in finding that an enhancement for use of a firearm in connection with another

felony offense, pursuant to U.S.S.G. § 2K2.1(b)(6), was warranted.

      Moreover, because we conclude that Leist’s total sentence of 240 months’

imprisonment was both procedurally and substantively reasonable, we affirm his

sentences.

      For the above-stated reasons, we affirm Arneth’s convictions and sentences

and Leist’s sentences.

      AFFIRMED.

                                            14
