Antoine Askew appeals his sentence for the burglary of Langley’s Gun Shop, where he and others stole fifty-four firearms. He contests the four-level sentence enhancement under U.S.S.G. 2K2.1(b)(5), applied for transferring firearms with reason to believe they would be used in another felony. Askew argues that the district court erred in applying this enhancement due to insufficient evidence supporting that he had reason to believe the stolen firearms would be used illicitly post-sale.
The night of the crime, Askew's group rammed a car into the shop and stole various firearms, including a Ruger and a Glock. After pleading guilty on March 21, 1997, a presentence investigation report recommended an offense level of 25, which included several enhancements and a reduction for acceptance of responsibility.
During the sentencing hearing, Askew's attorney argued against the four-level enhancement, asserting that Askew was aware the firearms were stolen for resale but lacked knowledge about the buyers or their intentions. The government countered with testimony from a deputy U.S. marshal, who indicated that some of the stolen firearms were often linked to street crimes. However, the marshal also noted his lack of experience in firearms trafficking cases and acknowledged that many firearms are used for legitimate purposes, casting doubt on the assumption that the stolen guns would be used in felonies.
Ultimately, the court found the evidence insufficient to justify the enhancement and vacated Askew's sentence, remanding the case for resentencing.
The Government relied solely on testimony and the Presentence Investigation (PSI) report to support the sentencing enhancement under U.S.S.G. § 2K2.1(b)(5). The district court concluded that the large number of stolen firearms indicated Askew must have known they would be resold for illegal purposes, leading to the rejection of his objection to the enhancement. He was subsequently sentenced to 72 months in prison, with three years of supervised release, and ordered to pay restitution of $9,057.38. After the appeal commenced, the Government successfully moved to reduce his sentence to 53 months due to his assistance in a criminal investigation. The appeal remains valid despite this reduction. The primary issue on appeal is whether the district court's finding that Askew had reason to believe the stolen firearms would be used in another felony was a clear error. The burden lies with the Government to demonstrate, by a preponderance of the evidence, that the enhancement was warranted, and the district court must ensure that this burden is met. The standard of preponderance requires sufficient evidence for the court to be convinced of the facts supporting the enhancement. While Askew was aware that the guns were to be sold, he was not involved in the sale and lacked knowledge about the buyers or the sale circumstances. There are no precedents indicating that a non-seller like Askew could have his sentence enhanced based on such limited evidence.
In *United States v. Gilmore*, the Seventh Circuit upheld a district court's decision that the government met the preponderance of the evidence standard for a sentence enhancement under section 2K2.1(b)(5), despite the defendant claiming the firearms were lost or stolen. The court found that the defendant had reason to believe the firearms would be used for felonies, supported by evidence of his gang affiliation and involvement in narcotics. In contrast, in cases involving actual sellers, courts inferred knowledge of buyers' intended uses due to the defendants' personal contact with them. For non-sellers like Askew, the government must provide evidence indicating that the defendant knew or had reason to believe the guns would be used for felonies. The evidence presented at Askew’s sentencing—including ambiguous statements in a presentence investigation (PSI) report and a deputy marshal's opinion—was insufficient to establish that Askew had this knowledge. The government's evidence left open the possibility that Askew might not have known the purpose of the firearms' eventual use. Therefore, the court concluded that the government failed to meet its burden of proof. As a result, Askew's sentence was vacated, and the case was remanded for resentencing in accordance with this ruling. The enhancement requires proof that the transferee's intended use of the firearm constituted a felony beyond mere illegal possession or trafficking.
