United States v. Freeman
2011 U.S. App. LEXIS 6785
| 6th Cir. | 2011Background
- Freeman pled guilty to one count of possessing stolen firearms in violation of 18 U.S.C. § 922(j) in connection with a burglary at the Arcade Antiques and Gun Shop.
- The variables included that roughly 34 firearms were stolen; Freeman and Roehm arranged multiple sales to ATF agents, with some firearms recovered.
- Freeman admitted planning more sales and boasted to an accomplice about the burglary, while Roehm later cooperated with authorities.
- The district court applied a base offense level of 12, added a 6-level enhancement for trafficking (two percent of firearms), and applied a 4-level enhancement for trafficking in firearms, then corrected that the enhancement was under § 2K2.1(b)(5) rather than another subsection.
- The court imposed a 43-month sentence and a restitution order of $27,000, offset by any recovered firearms value; PSR estimated total loss around $18,000 after accounting for recovered firearms and insurance.
- On appeal, Freeman challenged the § 2K2.1(b)(5) enhancement, the § 5K2.0 upward departure, and the restitution order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the § 2K2.1(b)(5) enhancement constitutes double counting | Freeman argues the trafficking enhancement duplicates conduct already punished by the conviction. | United States argues the enhancement covers a distinct aspect of conduct not captured by the base offense. | Enhancement properly applied; counts reflect distinct conduct. |
| Whether the § 5K2.0(a)(2)(B) departure was proper given possible § 2K2.1(b)(6) overlap | Freeman contends the departure rests on conduct that could be punished under § 2K2.1(b)(6). | U.S. argues the departure is justified as an exceptional circumstance not identified by guidelines and is harmless. | Departure proper; error if any was harmless. |
| Whether restitution was properly limited to the offense of conviction | Freeman contends restitution should be limited to the 12 firearms listed in Count 1, excluding other stolen firearms. | The government contends restitution may cover broader relevant conduct under the plea and 1B1.3. | Restitution reversed and remanded to limit to the 12 firearms involved in Count 1 minus recovered ones; the broader restitution based on all Arcade firearms is not supported. |
| Whether Freeman waived any appeal of restitution and/or if the waiver is ambiguous | Freeman asserts his appellate waiver does not bar challenges to restitution outside statutory maximum | The government asserts waiver bars these challenges. | Appellate waiver does not bar the restitution issue; restitution reversed for lack of proper link to offense of conviction. |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (U.S. 2007) (reasonable-review standard for sentencing)
- United States v. Dalecke, 29 F.3d 1044 (6th Cir. 1994) (double-counting inquiry under firearm guidelines)
- United States v. Wheeler, 330 F.3d 407 (6th Cir. 2003) (non-overlapping guidelines for related conduct)
- United States v. Goodman, 519 F.3d 310 (6th Cir. 2008) (preponderance standard for § 2K2.1(b)(5) application)
- United States v. Velez, 1 F.3d 386 (6th Cir. 1993) (consideration of uncharged conduct under § 1B1.3)
- United States v. Jenkins, 394 F.3d 407 (6th Cir. 2005) (grouping offenses under § 3D1.2(d))
- United States v. Elson, 577 F.3d 713 (6th Cir. 2009) (scope of 'offense of conviction' for restitution in plea cases)
- United States v. Gordon, 480 F.3d 1205 (10th Cir. 2007) (plea waiver and restitution scope; statutory maximums)
- United States v. Sosebee, 419 F.3d 451 (6th Cir. 2005) (plea-waiver scope; restitution)