85 F.4th 445
7th Cir.2023Background
- Roberto Prieto, a convicted felon, arranged multiple firearms transactions with a confidential source in 2020–2021; some sales were completed and others were not.
- The confidential source told Prieto he was on parole during an earlier (June 2020) sale; Prieto later resumed dealings after a period of incarceration and completed multiple sales in July 2021.
- Prieto sent photos and arranged cash meetings for each transaction; law enforcement arrested him after successive July 2021 sales.
- Prieto pleaded guilty to three counts of unlawful possession of a firearm by a felon (18 U.S.C. § 922(g)(1)).
- The PSR recommended two four-level enhancements under U.S.S.G. §§ 2K2.1(b)(5) (trafficking to a person whose possession would be unlawful) and 2K2.1(b)(1)(B) (offense involved 8–24 firearms); the district court applied both, resulting in a Guidelines range of 120–150 months and a 120‑month sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a §2K2.1(b)(5) trafficking enhancement applies | Prieto transferred two or more firearms and had reason to believe the transferee was on parole/prohibited, so enhancement applies | Government must prove the transferee actually was on parole or Prieto lacked reason to believe the transferee remained on parole in July 2021 | Enhancement applies; need only show defendant "had reason to believe" transferee was prohibited and record supports that belief |
| Whether eight firearms may be counted under §2K2.1(b)(1)(B) | Count all firearms involved in the same course of conduct, including three firearms Prieto offered but did not complete transferring, for a total of eight | The three uncompleted offers should not be counted; only five firearms were involved | Counts the three offered-but-unsold firearms as unlawfully sought/part of the same course of conduct; eight firearms properly counted |
Key Cases Cited
- United States v. Porraz, 943 F.3d 1099 (7th Cir. 2019) (standard of review for Guidelines calculation)
- United States v. Burnett, 37 F.4th 1235 (7th Cir. 2022) (count firearms involved in same course of conduct/common scheme)
- United States v. Griffin, 76 F.4th 724 (7th Cir. 2023) (preponderance standard for facts supporting enhancements)
- United States v. Henry, 819 F.3d 856 (6th Cir. 2016) (defendant need only have "reason to believe" transferee was prohibited)
- United States v. Francis, 891 F.3d 888 (10th Cir. 2018) (contrasting view that actual prohibited status must be proved)
- United States v. Birk, 453 F.3d 893 (7th Cir. 2006) (intended as well as completed conduct may be considered in firearm counts)