                                                       [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 11-14010                ELEVENTH CIRCUIT
                                                            APRIL 11, 2012
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

                D.C. Docket No. 5:11-cr-00018-RS-LB-1

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                 versus



RICHARD SAMUEL CRUDGINGTON,

                                                        Defendant-Appellant.

                      ________________________

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

                            (April 11, 2012)

Before BARKETT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Richard Samuel Crudgington was sentenced to thirty-months imprisonment

after pleading guilty to one count of dealing in firearms without a license, in

violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D), and two counts of

unlawfully selling a firearm to a convicted felon, in violation of 18 U.S.C.

§§ 922(a)(2) and 922(d)(1). In the factual statement provided in support of his

plea, Crudgington admitted that he was advertising firearms for sale in local

papers; that the government had seized 147 firearms from his residence, nearly all

of which were located in gun racks with price tags attached to them; that he was

obtaining firearms from licensed dealers in other states and having them shipped

to a local dealer, who then transferred them to him; that there were twenty-two

firearms which he was still supposed to pick up from one local dealer; that he had

sold seven firearms to undercover government agents, including to agents he

believed to be convicted felons; and that these transactions had occurred at his

residence.

      On appeal, Crudgington claims that the district court contravened

Application Note 5 to § 2K2.1(b)(1) of the Sentencing Guidelines when the court

calculated his offense level by counting the 100-plus firearms seized from his

residence. This Note states that when “calculating the number of firearms under

[§ 2K2.1(b)(1)], count only those firearms that were unlawfully sought to be

                                          2
obtained, unlawfully possessed, or unlawfully distributed, including any firearm

that a defendant obtained or attempted to obtain by making a false statement to a

licensed dealer.” U.S.S.G. § 2K2.1 cmt. n.5 Crudgington argues that because he

did not “unlawfully” possess the 100-plus firearms and because it was never

alleged that he either unlawfully sought to obtain them or unlawfully distributed

those particular firearms, the district court could not properly count them for

sentencing purposes. Crudgington further notes that had the 100-plus firearms not

been counted, his offense level would have dropped six levels.1 Upon review of

the record and consideration of the parties’ briefs, we affirm his sentence.

       We accept the district court’s factual findings at sentencing unless clearly

erroneous, and we review the application of the Sentencing Guidelines to the facts

de novo. United States v. Caraballo, 595 F.3d 1214, 1230 (11th Cir. 2010). We

also review de novo the district court’s legal interpretation of the Sentencing

Guidelines. United States v. Fulford, 662 F.3d 1174, 1177 (11th Cir. 2011). To

properly interpret the Guidelines, the language of the Guidelines must be given its

plain and ordinary meaning. Id. In addition, the Guidelines commentary “is

authoritative unless it violates the Constitution or a federal statute, or is


       1
         Section 2K2.1(b)(1) provides that if the offense involves between three and seven
firearms, a court should add two levels to the base offense level, but if the offense involves
100–199 firearms, the court should add eight levels. § 2K2.1(b)(1)(A), (D).

                                                 3
inconsistent with, or a plainly erroneous reading of, that guideline.” Id. (quotation

marks omitted).

      As an initial matter, we dismiss the government’s suggestion that

Crudgington failed to preserve the argument he advances on appeal. We hold that

the objection was preserved as a part of Crudgington’s claim that the additional

firearms should not have been counted based on the plain language of the

Guidelines.

      However, Crudgington’s argument fails on the merits. We do not dispute

Crudgington’s contention that the plain language of Application Note 5

exhaustively specifies the firearms that may be counted for purposes of

§ 2K2.1(b)(1). But his argument for relief hinges further on the premise that,

while he may have been actively trying to resell the 100-plus firearms as an

unlawful firearms dealer, he did not “unlawfully” possess them. We cannot accept

this premise.

      Crudgington pleaded guilty to “knowingly engag[ing] in business as a

dealer in firearms without being licensed to do so,” in violation of 18 U.S.C.

§ 921(a)(1)(A). In effect, Crudgington admitted he was not simply selling an

occasional firearm “for the enhancement of a personal collection or for a hobby,”

but rather that he was unlawfully “dealing in firearms as a regular course of trade

                                          4
or business with the principal objective of livelihood and profit through the

repetitive purchase and resale of firearms.” 18 U.S.C. § 921(a)(21)(C) (defining

what it means for a firearms dealer to be “engaged in the business”). Here,

Crudgington makes no claim that the 100-plus firearms were separate from the

illegal firearms business he was operating. Indeed, nearly all of the firearms in

question were directly linked to this illegal business, as evidenced by the fact that

they had price tags and some had already been advertised for sale in local papers.

Thus, unlike the federally-licensed firearms dealer in United States v. Brickner,

No. 96-3783, 1997 WL 159331 (6th Cir. April 3, 1997), Crudgington cannot

plausibly assert that the firearms yet to be sold illegally were being used in a

purely lawful manner. Rather, as the essential component of his illicit firearms

business, it is clear that the firearms in question were being used by Crudgington

unlawfully under 18 U.S.C. § 922(a)(1)(A). For this reason, we hold that the

district court acted consistently with the commentary to § 2K2.1(b)(1) when it

counted the firearms seized from Crudgington’s residence in calculating his

sentence.

      AFFIRMED.




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