                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0518n.06

                                          No. 14-1116

                         UNITED STATES COURT OF APPEALS                              FILED
                              FOR THE SIXTH CIRCUIT                             Jul 22, 2015
                                                                           DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                               )
                                                        )
       Plaintiff-Appellee,                              )
                                                        )    ON APPEAL FROM THE
v.                                                      )    UNITED STATES DISTRICT
                                                        )    COURT FOR THE WESTERN
MARCUS STOKES,                                          )    DISTRICT OF MICHIGAN
                                                        )
       Defendant-Appellant.                             )
                                                        )

BEFORE: SILER, COOK, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. Marcus Danquel Stokes (Stokes) appeals his 72-

month sentence for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1),

arguing that the district court erred in applying the United States Sentencing Guidelines

(Guidelines or U.S.S.G.) two-level enhancement for possession of a stolen firearm

(§ 2K2.1(b)(4)(A)). We AFFIRM.

                                               I.

       When Grand Rapids, Michigan, police officers responded to a report of alleged drug

activity on the 1100 block of Logan Street in Grand Rapids, they observed approximately five

men, including Stokes. As the officers approached, the men fled on foot, and the officers chased

them around the west side of 1138 Logan Street toward a fence at the back of the property.

Three officers observed Stokes break off from the group, reach into the waistband of his pants to

retrieve something, and discard it into a small white trashcan. An officer then ordered Stokes to

get down on the ground and Stokes complied. Stokes was arrested and searched, and the officers
No. 14-1116, United States v. Stokes


found and seized .87 grams of crack cocaine, a cell phone, and $433.00 in cash. After he was

read his Miranda rights, Stokes agreed to speak with police and explained that the crack cocaine

was for personal use. Officers then searched the white trashcan and found a loaded Taurus

.380 caliber semiautomatic pistol. Stokes was again read his Miranda rights and again agreed to

speak with police, but claimed no knowledge of the firearm. At the time of Stokes’s arrest, the

gun was not reported stolen. However, on June 21, 2013, Jacob VanDyke reported to Michigan

State Police that a gun with a serial number matching the one found in the trashcan had been

stolen from his garage sometime during the preceding two or three weeks.

        A grand jury returned an indictment charging Stokes with one count of felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1).          Stokes pleaded guilty,

acknowledging that he had two prior felony convictions and that he understood that he was not

permitted to carry a firearm. He explained that this was why he ran from police and threw the

gun in the trashcan.

        Prior to sentencing, the probation office submitted a Presentence Investigation Report

(PSR) that calculated a Guidelines sentencing range of 70 to 87 months as follows: a base

offense level of 20; a two-level increase because the firearm was stolen (U.S.S.G.

§ 2K2.1(b)(4)(A)); a four-level increase because Stokes possessed the firearm in connection with

another felony offense, the sale of crack cocaine (§ 2K2.1(b)(6)(B)); a three-level decrease for

acceptance of responsibility; and a criminal history category of IV. Stokes objected to the

application of both enhancements, arguing in his sentencing memorandum that the two-level

enhancement for possession of a stolen firearm was inappropriate because the gun was not

reported stolen until after his arrest.




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No. 14-1116, United States v. Stokes


       At the sentencing hearing, Stokes withdrew his objection to the four-level increase for

possessing the firearm in connection with the commission of another felony, but maintained his

objection to the two-level enhancement for possession of a stolen firearm, arguing that he could

not have known the gun was stolen if it was not reported stolen until a week after his arrest.

The government conceded that there was no evidence that Stokes stole the gun.

       The district court rejected Stokes’s argument and applied the two-level enhancement:

       the appropriate analysis is the Thomas case, and I realize it’s a Second Circuit
       case, but I’m persuaded by it, that this enhancement is going to strict liability and
       whether or not your client knew it was stolen is not relevant to the analysis, and
       because larceny is a crime against possession, it’s clear to me that somebody had
       committed the crime prior to the date that your client came in possession of that
       weapon.

After acknowledging the discretionary nature of the Guidelines, considering Stokes’s request for

a downward variance, and analyzing the 18 U.S.C. § 3553(a) factors, the court sentenced Stokes

at the low end of the Guidelines range to 72 months’ imprisonment.

                                                  II.

                                                  A.

       On appeal, Stokes challenges only the application of the two-level increase for possession

of a stolen firearm, arguing that the district court erred by applying the enhancement on a strict

liability basis because recent Supreme Court precedent dictates that Guidelines provisions that

are not based on empirical evidence and national experience, which he argues this enhancement

was not, are entitled to little deference. Stokes also asserts that possession of a stolen firearm is a

separate offense that the government must prove beyond a reasonable doubt.

       This court generally reviews a district court’s findings of fact for clear error and its

application of the Guidelines de novo. United States v. Hunt, 487 F.3d 347, 350 (6th Cir. 2007).

However, the Government maintains that Stokes’s arguments are entitled only to plain-error


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No. 14-1116, United States v. Stokes


review because he did not raise them below. The government is correct; Stokes’s arguments on

appeal are different from those he made before the district court. As a practical matter, however,

Stokes’s claims fail under any standard.

                                                 B.

                                                  1.

       Stokes’s argument is not addressed to the proper interpretation of U.S.S.G.

§ 2K2.1(b)(4)(A). The intended operation of this enhancement is made clear in the commentary,

which states “Subsection (b)(4) applies regardless of whether the defendant knew or had reason

to believe that the firearm was stolen.” U.S.S.G. § 2K2.1 cmt. n.8(B). Instead, Stokes concedes

that this court has repeatedly upheld the application of U.S.S.G. § 2K2.1(b)(4)(A) without a

mens rea requirement, see, e.g., United States v. Murphy, 96 F.3d 846, 849 (6th Cir. 1996), but

maintains that intervening Supreme Court decisions justify revisiting this precedent. In

particular, Stokes points out that in Gall v. United States, 552 U.S. 38, 50 (2007), the Supreme

Court held that a trial court “may not presume that the Guidelines range is reasonable . . . [but]

must make an individualized assessment based on the facts presented,” and determined that a

sentencing judge must consider the factors enumerated in 18 U.S.C. § 3553(a) to impose a

sentence that is “sufficient, but not greater than necessary.” Id. at 44 (internal citations omitted).

Stokes argues that this discretion requires district courts to scrutinize the “once-inscrutable

Guidelines.” Based on Kimbrough v. United States, 522 U.S. 85, 109 (2007), Stokes further

contends that district courts can and should use their discretion to afford little weight to

Guidelines determinations that are not based on “empirical data and national experience,”

because such Guidelines depart from the Sentencing Commission’s institutional function. Stokes




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No. 14-1116, United States v. Stokes


maintains that without a mens rea, the stolen-gun enhancement lacks empirical grounding and a

reasonable policy rationale.

       The district court rejected these arguments, citing United States v. Thomas, 628 F.3d 64,

69 (2d Cir. 2010), in which the Second Circuit upheld the application of § 2K2.1(b)(4)(A)

without a mens rea, finding there to be rational policy reasons for the enhancement.

       The government reasonably may determine that stolen firearms often end up in
       the hands of criminals and that the government has a legitimate interest in
       punishing possession of a stolen firearm and placing the burden upon one who
       receives a firearm to ensure that the possession is lawful . . . . [T]he stolen firearm
       enhancement does not violate the due process clause because the enhancement
       does not alter the statutory maximum penalty, negate the presumption of
       innocence or alter the burden of proof for the underlying offense, or create a
       separate offense calling for a separate penalty.

Thomas, 628 F.3d at 68 (citation and internal quotation marks omitted). We find no error, plain

or otherwise.

                                                 2.

       In Kimbrough, the Supreme Court held that district courts may conclude that the

Guidelines’ crack/powder cocaine disparity results in sentences greater than necessary, despite

Congress’s rejection of the proposed one-to-one ratio for crack-cocaine versus powder-cocaine

sentencing Guidelines.     The Court recognized that the Sentencing Commission “fills an

important institutional role: It has the capacity courts lack to base its determinations on empirical

data and national experience, guided by a professional staff with appropriate expertise.”

Kimbrough, 552 U.S. at 109 (internal quotation marks omitted). The Court explained, however,

that the crack-cocaine Guidelines “do not exemplify the Commission’s exercise of its

characteristic institutional role. In formulating Guidelines ranges for crack cocaine offenses . . .

the Commission looked to the mandatory minimum sentences set in the 1986 Act, and did not

take account of empirical data and national experience.” Id. (internal quotation marks omitted).

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No. 14-1116, United States v. Stokes


The Court noted as well that “the Commission itself has reported that the crack/powder disparity

produces disproportionately harsh sanctions, i.e., sentences for crack cocaine offenses greater

than necessary in light of the purposes of sentencing set forth in § 3553(a).” Id. at 110 (internal

quotation marks omitted).

       Assuming arguendo that the stolen gun enhancement is analogous to the crack/powder

cocaine discrepancy,1 Kimbrough does not require district courts to determine the empirical basis

of a Guideline before application; rather, it empowers district courts to vary from the Guidelines

with “reasoned appraisal” supported by 18 U.S.C. § 3553(a) factors. Kimbrough, 552 U.S. at

111. Further, we have made clear that “a district court may vary from the Guidelines based on a

policy disagreement, but it is not required to do so.” United States v. Ziska, 602 F. App’x 284,

290 (6th Cir. 2015) (citing United States v. Klepper, 520 F. App’x 392, 393 (6th Cir. 2013)).

       The only case Stokes cites in support of his argument is United States v. Handy, 570 F.

Supp. 2d 437, 480 (E.D.N.Y. 2008), in which the district court found the application of

§ 2K2.1(b)(4)(A) improper because there was no proof that Handy knew that the gun was stolen.

However, in United States v. Black, 386 F. App’x 238, 241 (3d Cir. 2010), the Third Circuit did

“not find Handy to be persuasive,” and the Second Circuit rejected arguments premised on

Handy in Thomas, 628 F.3d at 69. This court too has continued to apply the § 2K2.1(b)(4)(A)

enhancement without a mens rea requirement post-Kimbrough, albeit in unpublished cases. In

United States v. Moore, 372 F. App’x 576, 578 (6th Cir. 2010), we rejected arguments almost



       1
         As the Third Circuit observed in United States v. Holcomb, 390 F. App’x 117 (3d Cir.
2010), Kimbrough is distinguishable because there the Court “reinstated a below-the-Guidelines
sentence for crack cocaine possession in light of the particular circumstances of Kimbrough’s
case and the Sentencing Commission’s consistent and emphatic position that the crack/powder
disparity is at odds with 3553(a). By contrast, the Sentencing Commission has expressed no
such concern for § 2K2.1(b)(4)(A).” Id. at 121 (citation and internal quotation marks omitted).


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No. 14-1116, United States v. Stokes


identical to those made here. And in United States v. Cole, 448 F. App’x 549, 552 (6th Cir.

2011), we upheld the application of the stolen-firearm enhancement after finding the district

court’s rationale, “that if one is a convicted felon who is prohibited from possessing a firearm,

that if that person does possess it he or she takes the risk or does run the risk of the fact that the

firearm was, in fact, stolen,” was consistent with Sixth Circuit precedent. The reasoning of these

cases is sound.

                                                       3.

       Stokes next argues that the district court “provided only a cursory response to [his]

objection.”   However, the record reflects that the court engaged directly with Stokes’s

arguments, and rejected them because it was ultimately persuaded by the reasoning of Thomas,

supra. Further, before imposing Stokes’s 72-month sentence, the court acknowledged the

discretionary nature of the Guidelines and analyzed the 18 U.S.C. § 3553(a) factors.

                                                 C.

       Finally, Stokes argues that the stolen-firearm enhancement is an independent criminal

offense pursuant to 18 U.S.C. § 922(j), and therefore the government must prove beyond a

reasonable doubt that he knew the gun he possessed was stolen. However, the government

correctly observes that this argument fails because Stokes conflates § 922(j), which makes it a

crime for any person to possess a firearm the person knows is stolen, with § 2K2.1(b)(4)(A),

which enhances the penalty for the separate crime of felon in possession of a firearm, which has

its own mens rea requirement,2 when that firearm is stolen.




       2
        “The offense of being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)
is comprised of three elements: (1) the defendant had a previous felony conviction; (2) the
defendant knowingly possessed the firearm specified in the indictment; and (3) the firearm


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No. 14-1116, United States v. Stokes


                                             III.

       For these reasons, we AFFIRM.




traveled in or affected interstate commerce.” United States v. Campbell, 549 F.3d 364, 374 (6th
Cir. 2008) (citing United States v. Schreane, 331 F.3d 548, 560 (6th Cir.2003)).


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