United States v. Emmanuel Asante
2015 U.S. App. LEXIS 5452
| 11th Cir. | 2015Background
- Defendant Emmanuel Asante (Ghanaian national, unlawfully present) pled guilty to conspiracy to make false statements to a licensed firearms dealer and making false statements (18 U.S.C. §§ 2, 371, 924(a)(1)(A)) using a straw-buyer to obtain firearms he could not lawfully possess.
- Co-defendant Johnny White purchased multiple guns—five to seven—for Asante, following Asante’s instructions to buy smaller-caliber weapons and to transport them for resale/profit.
- Recorded calls showed Asante told White the guns had been hidden in cars shipped to Jamaica and that Asante’s brother and associates in Jamaica retrieved them.
- At sentencing the district court applied two four-level enhancements under U.S.S.G. § 2K2.1: (b)(5) for trafficking and (b)(6)(A) for exporting firearms, producing an offense level 21 and guideline range 46–57 months; the court imposed 46 months concurrent.
- Asante challenged (1) sufficiency of evidence for each enhancement, (2) alleged double-counting from applying both enhancements, (3) substantive unreasonableness of the 46-month sentence, and (4) refusal to redact PSR allegations that he threatened the prosecutor and a magistrate judge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency for trafficking enhancement (U.S.S.G. §2K2.1(b)(5)) | Asante: Government lacked proof he knew or had reason to believe transfers would result in unlawful possession/use | Government: Circumstances known to Asante (straw buys, secretive transport, statements about smuggling to Jamaica for profit) show he knew or had reason to believe recipients would use/dispose unlawfully | Affirmed: evidence of clandestine methods and intent to profit supported trafficking enhancement under the "circumstances known to defendant" test |
| Sufficiency for export enhancement (U.S.S.G. §2K2.1(b)(6)(A)) | Asante: His recorded statements might be lies; insufficient proof firearms actually left U.S. or he intended export | Government: Recorded calls where Asante described guns hidden in cars shipped to Jamaica and his brother retrieving them; district court credited statements | Affirmed: district court credibility finding supported exporting enhancement |
| Double-counting by applying both enhancements | Asante: Exporting and trafficking enhancements both punish same conduct (shipping guns abroad) | Government: Each guideline targets different harms—trafficking targets transfer to someone who will unlawfully possess/use; exporting targets intent to move firearms out of U.S. irrespective of trafficking | Affirmed: enhancements address conceptually separate harms and may be applied cumulatively absent contrary indication |
| PSR redaction of threats | Asante: Threats to prosecutor/magistrate should have been redacted from PSR | Government/District Court: Threats bear on defendant history/character; not within narrow exclusions of Fed. R. Crim. P. 32(d)(3) and 18 U.S.C. §3661 allows broad information | Affirmed: court did not abuse discretion in refusing redaction; inclusion appropriate for Bureau of Prisons and sentencing considerations |
Key Cases Cited
- United States v. Isaacson, 752 F.3d 1291 (11th Cir. 2014) (government must prove guideline facts by preponderance; legal standard for reviewing guideline application)
- United States v. Barsoum, 763 F.3d 1321 (11th Cir. 2014) (deference to sentencing court credibility findings)
- United States v. Flanders, 752 F.3d 1317 (11th Cir. 2014) (double-counting analysis; presumption that Commission intended cumulative application unless sections overlap)
- United States v. Cubero, 754 F.3d 888 (11th Cir. 2014) (double-counting impermissible only when one guideline fully accounts for the harm addressed by another)
- United States v. White, 663 F.3d 1207 (11th Cir. 2011) (distinguishing separate purposes of trafficking and exporting enhancements)
- United States v. Baldwin, 774 F.3d 711 (11th Cir. 2014) (standard for reviewing substantive reasonableness of a sentence)