United States v. Victor Maturino, 887 F.3d 716

Background

Victor Maturino negotiated to buy 144 M433 high-explosive 40mm grenades and a silencer for a cartel, paid $3,000 down and handed over $35,000; he was arrested after taking two cases he believed contained 72 live grenades each plus the silencer.
Only one grenade was actually live; 143 were inert duds; Maturino pleaded guilty to possession of an unregistered silencer and one unregistered destructive device (the live grenade) under 26 U.S.C. § 5861(d).
The PSR applied a base offense level under U.S.S.G. § 2K2.1 and added an eight-level enhancement under § 2K2.1(b)(1)(D) for involvement of 100–199 firearms, counting the 144 grenades "sought to be obtained," producing a Guidelines range of 108–135 months.
Maturino objected, arguing the 143 inert grenades are not "destructive devices" and thus not "firearms" for enhancement purposes; the Government relied on Application Note 5 to § 2K2.1, which directs counting firearms "unlawfully sought to be obtained."
The district court adopted the PSR, imposed a 120-month sentence (within the Guidelines range), and stated it would impose the same sentence under 18 U.S.C. § 3553(a) even if the Guidelines calculation were wrong.
On appeal, the Fifth Circuit affirmed, holding the court properly counted the grenades Maturino sought to obtain and rejected arguments of improper double counting and other challenges.

Issues

Issue	Plaintiff's Argument (Maturino)	Defendant's Argument (Gov.)	Held
Whether § 2K2.1(b)(1)(D) enhancement may count inert items because defendant sought live grenades	Inert grenades aren’t "destructive devices" and thus not "firearms," so only one live grenade and the silencer should count	Application Note 5 allows counting firearms "sought to be obtained," so the 144 grenades Maturino sought may be counted even if many were inert	Court held enhancement proper; count what was "sought to be obtained," not only what was actually explosive
Whether applying both § 2K2.1(b)(1)(D) (quantity) and § 2K2.1(b)(3)(B) (destructive device) is impermissible double counting	Stacking both enhancements punishes the same harm twice and violates Double Jeopardy	The Guidelines allow separate enhancements for quantity and type unless expressly forbidden; these provisions address distinct conduct	Court held no plain error; dual enhancements permissible because not expressly prohibited
Whether sentencing must reflect only items actually possessed rather than intended conduct	Sentencing should reflect actual possession and statutory definition of "firearm"	Guidelines commentary and precedent permit consideration of intended conduct for calculating quantity	Court favored intended conduct under Application Note 5; sentencing may reflect what defendant sought
Whether district court’s Statement of Reasons and alternative § 3553(a) statement were reversible errors	SOR contained an inaccurate clerical reference to a downward variance; sentence justification insufficient if Guidelines were incorrect	Any clerical mistake was harmless; transcript showed full § 3553(a) explanation and sentence was within Guidelines	Court held SOR error clerical and harmless; no reversible error

Key Cases Cited

Stinson v. United States, 508 U.S. 36 (1993) (Guidelines commentary is authoritative unless unconstitutional or plainly erroneous)
United States v. Malone, 546 F.2d 1182 (5th Cir. 1977) (inert grenade not a destructive device in sufficiency-of-evidence context)
United States v. Blackburn, 940 F.2d 107 (4th Cir. 1991) (interpreting earlier Guidelines version on inert grenades)
United States v. Birk, 453 F.3d 893 (7th Cir. 2006) (counting firearms a defendant intended or sought to obtain for enhancement purposes)
United States v. Szakacs, 212 F.3d 344 (7th Cir. 2000) (allowing enhancement for firearms defendants intended to steal though not yet possessed)