           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           January 6, 2010

                                       No. 09-40182                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

KERIANNE GREEN,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC 7:08-CR-1411


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       In this appeal, we review Defendant-Appellant Kerianne Green’s (“Green”)
sentence resulting from a guilty-plea conviction for knowingly and willfully
making and causing to be made a false statement in the records of a federally
licensed firearms dealer, pursuant to 18 U.S.C. §§ 924(a)(1)(A) & 2. Concluding
that the district court erred in sentencing Green, we vacate and remand for
resentencing.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                 No. 09-40128

           I. FACTUAL AND PROCEDURAL BACKGROUND
       Green purchased five Beretta pistols in McAllen, Texas which she then
smuggled into Mexico for her common-law spouse, Gabriel Gardea (“Gardea”),
and a man identified in the presentence report as FNU LNU.       For her straw
purchases, Green was paid $1,500 in cash.
      After being apprehended by Bureau of Alcohol, Tobacco and Firearm
agents, Green admitted her part in the scheme. The probation officer assigned
Green a base offense level of 12. She received two additional levels because she
purchased five firearms for Gardea and FNU LNU. Although Green purchased
firearms to transfer to Gardea and FNU LNU, the probation officer concluded
that Green’s sentence should not be increased by four levels for trafficking
firearms under U.S.S.G. § 2K2.1(b)(5) because there was insufficient evidence
that Gardea and FNU LNU were “individuals whose possession or receipt of the
firearm[s] would be unlawful.” See U.S.S.G. § 2K2.1, com. n.13(A). With no
further enhancements or reductions, Green’s total offense level was 14, which,
when combined with her criminal history category of I, yielded a guidelines
range of 15 to 21 months in prison.
      The Government objected to the probation officer’s failure to recommend
that the district court impose the four-level enhancement under § 2K2.1(b)(5).
The Government argued that the probation officer failed to recognize that
Application Note 13 also provides that the enhancement should be imposed
where the firearms are transported or transferred to “individuals who intend to
use or dispose of the firearm unlawfully.” See U.S.S.G. § 2K2.1, com. n.13(A).
Green responded that the enhancement was not applicable because there was
no evidence showing that she knew that Gardea and FNU LNU’s intended use
or disposition of the firearms would be unlawful.
      At the sentencing hearing, the district court granted Green two levels off
of her total offense level for acceptance of responsibility. In relation to the

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Government’s argument that Green’s sentence should be enhanced, the district
court found that Green was “not buying a gun and giving it to somebody who she
knows is going to use it to bird hunt or deer hunt, [sic] or target practice.”
Instead, the court found that Green was buying a gun and taking it “into Mexico
where you can’t get these guns. Where there’s common knowledge that guns are
predominately used by drug trafficking organizations.” Accordingly, the district
court concluded that the four-level enhancement was warranted. The court
found, however, that Green was a minor participant in the scheme. Because the
district court’s finding that the § 2K2.1(b)(5) enhancement applied put Green’s
offense level above 16, the Government moved for an additional point reduction
for acceptance of responsibility, which the court granted. Green’s total offense
level was 13, which resulted in an advisory guideline range of 12 to 18 months
in prison.1 The court sentenced Green to 12 months and one day in prison.
                                     II. DISCUSSION
      Green avers that the district court clearly erred in imposing the four-level
enhancement under § 2K2.1(b)(5).               The district court’s application of the
Sentencing Guidelines is reviewed de novo, and its factual findings are reviewed
for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008). “In regard to guideline enhancements, the district court may adopt facts
contained in the PSR without inquiry, so long as the facts have an adequate
evidentiary basis and the defendant does not present rebuttal evidence.” United



      1
          To encapsulate the final guideline offense level calculations:

      Base offense level                            12
      Enhancement for number of firearms            +2
      Enhancement for trafficking                   +4
      Minor role reduction                          -2
      Reduction for acceptance of responsibility    -3

      TOTAL OFFENSE LEVEL                           13

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States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006). In determining whether
an enhancement applies, a district court is permitted to draw reasonable
inferences from the facts, and these inferences are factual findings reviewed for
clear error as well. United States v. Rodriguez, 897 F.2d 1324, 1326 (5th Cir.
1990). This court upholds a district court’s factual finding on clear error review
so long as the enhancement is plausible in light of the record as a whole. United
States v. Gonzales, 436 F.3d 560, 584 (5th Cir. 2006). The Government must
prove sentencing enhancements by a preponderance of the evidence. United
States v. Trujillo, 502 F.3d 353, 357 (5th Cir. 2007).
      Where a defendant is convicted of a firearms possession offense, the
guidelines provide for a four-level enhancement “[i]f the defendant engaged in
the trafficking of firearms[.]” U.S.S.G. § 2K2.1(b)(5). The application notes
instruct that this enhancement applies where the defendant:
      (I)    transported, transferred, or otherwise disposed of two or more
             firearms to another individual, or received two or more firearms
             with the intent to transport, transfer, or otherwise dispose of
             firearms to another individual; and
      (ii)   knew or had reason to believe that such conduct would result in the
             transport, transfer, or disposal of a firearm to an individual–
             (I)     whose possession or receipt of the firearm would be unlawful;
             or
             (II)    who intended to use or dispose of the firearm unlawfully.
Id., com. n.13(A).
      The first point, that Green transferred two or more firearms to another
person, is not in dispute. At sentencing, the Government did not argue, and the
district court did not find that Gardea or FNU LNU were persons prohibited
from the possession or receipt of firearms. But the district court did find that
Green “knew . . . that she was transferring more than one weapon to somebody
whose intended use of the weapon was for unlawful purposes.” Green avers that


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                                  No. 09-40128

the Government failed to establish by a preponderance of the evidence that she
knew or had reason to believe that Gardea or FNU LNU intended to use or
dispose of the firearms unlawfully. She argues that the district court’s findings
that: (1) “you can’t get these guns” in Mexico; (2) it was “common knowledge
that guns are predominately used by drug trafficking organizations;” and (3) she
was “not buying a gun and giving it to somebody who she knows is going to use
it to bird hunt or deer hunt, [sic] or target practice” were not based on anything
in the record. Therefore, Green argues that the Government’s preponderance of
the evidence burden was not satisfied.
      While there is no case law in our circuit directly on point, several cases
from our sister circuits have examined this particular issue. In United States v.
Grinnage, 309 F. App’x 334 (11th Cir. 2009)(unpublished), the Eleventh Circuit
found that the Government, through its use of indirect evidence, established by
a preponderance of the evidence that Grinnage had reason to believe that he was
transferring firearms to individuals who intended to dispose of them unlawfully.
The court based its conclusion on a conversation between Grinnage and an
undercover investigator to whom Grinnage transferred the firearms. During
that conversation, the undercover investigator told Grinnage that “the money
from selling the guns was spent on a tattoo parlor ‘to make it look legit.’”
Grinnage, 309 F. App’x at 336.      The court reasoned that this conversation
represented indirect evidence of Grinnage’s knowledge that he was transferring
the firearms to an individual who intended to dispose of them unlawfully
because “there would have been no reason for the investigator to make the
money ‘look legit’ unless something illegal was occurring.” Id.
      Similarly in United States v. Marceau, 554 F.3d 24 (1st Cir. 2009), the
First Circuit relied upon indirect evidence to hold that the defendant had reason
to believe that he was transferring firearms to individuals who intended to
dispose of them unlawfully. The court based its holding upon the defendant’s


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                                  No. 09-40128

pre-arrest statements evincing an intent to traffic the firearms coupled with his
actions which precisely tracked his stated intent. Id. at 32. After stealing the
firearms, the defendant removed their serial numbers and stated that he wanted
to sell them to obtain money to buy drugs. Id. The court concluded that these
events – including most prominently the obliteration of serial numbers, which
is done in anticipation that the guns will be used in criminal activity, were more
than sufficient to meet the preponderance of the evidence standard required for
a four level enhancement. Id.
      Here, in contrast, to Grinnage and Marceau there is no evidence in the
record to satisfy the preponderance of the evidence standard. The record is
silent about what Green knew, or had reason to believe, with regard to Gardea
and FNU LNU’s plans for the guns. Even if it is assumed that Green knew that
Gardea and FNU LNU were not personally going to use the guns for hunting or
target practice in Mexico, she might still have thought that the guns were
destined for Mexican customers who did intend to engage in these, or other,
innocent pursuits. Moreover, the Government presented no evidence showing
that Berettas could not be obtained in Mexico or that Green knew this to be true.
Likewise, there was no evidence presented by the Government that it is common
knowledge that guns are predominantly used by drug trafficking organizations
and no evidence that Green was aware of this allegedly commonly known fact.
      In sum, based upon the record before us the Government failed to meet the
preponderance of evidence standard to warrant an enhancement of Green’s
sentence. Although Green admitted that she bought the firearms in question
and knew her actions were illegal, the record is devoid of any evidence showing
that she knew or had reason to believe that Gardea and FNU LNU intended to
use or dispose of the firearms unlawfully.




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                                  No. 09-40128

                             III. CONCLUSION
      For the foregoing reasons, Green’s sentence is vacated and we remand for
resentencing. At a new sentencing hearing, the Government may offer evidence
not presented previously to justify the sentence, and Green may offer rebuttal.
United States v. Kinder, 980 F.2d 961, 963 (5th Cir. 1992). We have held that
when a defendant succeeds in having a sentence vacated, on remand “all new
matter relevant to the issue appealed, reversed, and remanded, may be taken
into consideration by the resentencing court.” United States v. Marmolejo, 139
F.3d 528, 530 (5th Cir. 1998). A district court should gather “the relevant facts
and evidence on the specific and particular issues heard by the appeals court and
remanded for resentencing.” Id.




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