Government Failed to Support Sentencing Enhancement for "Straw" Gun Buyer

United States v. Francis, 2018 WL 2646755 (June 5, 2018) (CO): The panel finds the district court improperly applied USSG’s § 2K2.1(b)(5) firearms trafficking enhancement. Application note 13 explains that a court may impose a 4 level increase when the accused knew or had reason to believe the person receiving the firearms had a prior felony conviction for a crime of violence or controlled substance offense. Here, Francis was the straw purchaser for an ATF informant with a felony. The informant told Francis he had a “bullshit felony” conviction and that he had a “stereotypical background.” The panel said these statements “suggested the CI did not have a felony conviction for a crime of violence.” Thus, the government did not prove that the enhancement should apply. However, the panel found at trial the government established beyond a reasonable doubt that the CI was an actual felon.
The panel also held that the district court plainly erred in ordering sex-offender treatment as a special condition of supervised release. Contrary to circuit precedent, the district court did not provide a “generalized statement that would justify” that treatment. Regardless, Francis was unable to show this error affected his substantial rights. The record demonstrated the court had a reason to order treatment. Francis had recently been convicted of a sex offense and failed to complete the court-ordered sex offender treatment program.