United States v. Dominique McKenzie ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0093p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
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Plaintiff-Appellee, │
> No. 21-5295
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v. │
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DOMINIQUE MCKENZIE, │
Defendant-Appellant. │
│
┘
Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville.
No. 3:19-cr-00064-1—Katherine A. Crytzer, District Judge.
Decided and Filed: May 3, 2022
Before: ROGERS, KETHLEDGE, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Brent N. Jones, UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.
_________________
OPINION
_________________
MURPHY, Circuit Judge. Federal law makes it a crime for so-called “straw purchasers”
to tell licensed firearms dealers that they are buying a firearm for themselves when, in fact, they
are buying it for someone else. 18 U.S.C. § 922(a)(6); Abramski v. United States, 573 U.S. 169,
179–89 (2014). Straw purchasers sometimes engage in these stealth transactions because the
true buyers (for example, felons) cannot buy guns themselves. 18 U.S.C. § 922(g)(1). These
types of straw purchases raise heightened safety concerns, so the Sentencing Guidelines instruct
No. 21-5295 United States v. McKenzie Page 2
courts to increase a straw purchaser’s potential sentence in certain cases if the purchaser had
“knowledge” or “reason to believe” that the true buyer could not lawfully possess the firearm.
U.S.S.G. § 2K2.1(a)(4)(B).
What does it take for a straw purchaser to have “reason to believe” that the true buyer
cannot lawfully possess the gun? This case raises that question. Dominique McKenzie admits
that he was a straw purchaser for two individuals but disputes that he had “reason to believe” that
they could not possess firearms. We interpret that phrase—one commonly used in the probable-
cause context—to require, at most, that a straw purchaser know of facts creating a fair
probability that the true buyer could not possess a firearm. And we agree with the district court
that McKenzie had knowledge of such facts in this case. We thus affirm its use of this guideline.
I
Between October 2018 and March 2019, McKenzie purchased 13 firearms from several
federally licensed dealers in and around Knoxville, Tennessee. By early 2019, his conduct had
caught the attention of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).
McKenzie’s purchases suggested to the agency that he might be a straw purchaser—that is,
someone who buys guns for others.
The ATF began to monitor McKenzie. On February 26, 2019, he traveled to Crossroads
Firearms to purchase a Glock 27. To obtain this semiautomatic pistol, McKenzie signed a
federal form acknowledging that he was not purchasing it for someone else. He then headed
straight to a nearby Applebee’s parking lot, where officers watched him meet with Lucky Clark.
McKenzie gave Clark the Glock 27 in exchange for cash. The next day, officers arrested Clark
and seized the newly purchased handgun.
The officers later obtained a search warrant to review the text messages from Clark’s
phone. These messages revealed discussions between Clark and McKenzie during the week
before the purchase. Clark first texted a different person to obtain McKenzie’s phone number.
After he successfully contacted McKenzie, the pair conversed about the type of handgun that
Clark wanted, its anticipated price, and the stores at which McKenzie might buy it. McKenzie
also made clear that Clark would have to pay him a $60 purchaser’s fee in addition to the
No. 21-5295 United States v. McKenzie Page 3
firearm’s cost (which ultimately turned out to be $450). The parties never discussed why Clark
did not just buy the gun himself.
McKenzie made a second straw purchase a month later. On March 29, he traveled to
Shoot Point Blank to buy a Micro Draco, another semiautomatic pistol. McKenzie again signed
the form indicating that he was not a straw purchaser, but he could not leave with the gun due to
a delay in his background check. After he returned to pick it up the next day, officers watched
him travel to a nearby gas station. There, he met Jeffrey Lee Schwartz and gave Schwartz the
gun.
Officers conducted a traffic stop of Schwartz as he drove away. They recovered the
firearm and some marijuana. While at the scene, Schwartz told officers that McKenzie had
bought the gun for him after he had unsuccessfully tried to buy one for himself. As Schwartz
spoke with the officers, McKenzie approached on foot. Pretending to still own the gun,
McKenzie asked for it back and said that he had given it to Schwartz for safekeeping after a
burglary at his home. McKenzie denied selling the gun to Schwartz.
Two days later, ATF agents interviewed Schwartz about these events. Schwartz
explained that he knew McKenzie only from seeing him at nightclubs but had heard that
McKenzie would buy a gun for anyone. Schwartz had initially contacted McKenzie in January
2019 about purchasing a handgun for Schwartz after he received his tax refund. The day before
the March 29 purchase, Schwartz had reconnected with McKenzie on Snapchat while traveling
to a gun store himself. Schwartz told the ATF agents that he asked McKenzie: “if for some
reason I am denied from purchasing the firearm or cannot purchase the firearm for some other
reason can you help me?” Rep., R.127-1, PageID 976. McKenzie agreed. When Tennessee’s
background-check system alerted the store not to sell to Schwartz, he declined his right to
appeal. Schwartz instead asked McKenzie to buy a gun for him, and the two arranged the
logistics of the purchase. Schwartz told the agents that he had paid McKenzie $850 in the early
morning hours of March 30 before McKenzie returned to the store to pick up the gun. Although
McKenzie never mentioned a purchaser’s fee expressly, the amount Schwartz gave him
exceeded the cost of the gun by about $20. As with Clark, McKenzie does not appear to have
No. 21-5295 United States v. McKenzie Page 4
asked Schwartz why he could not buy the gun himself. Schwartz later told officers that the store
likely refused to sell him a gun because his driver’s license had listed his old address.
For these two transactions, the government charged McKenzie with two counts of
making a materially false statement to a licensed firearms dealer by suggesting that he was the
actual buyer when he was a straw purchaser. See 18 U.S.C. § 922(a)(6). McKenzie pleaded
guilty to both counts without a plea agreement.
A probation officer calculated McKenzie’s guidelines range using the firearms guideline.
See U.S.S.G. § 2K2.1. The applicable subparagraph of this guideline instructs courts to choose a
higher base offense level if, as relevant here, three conditions are met. Id. § 2K2.1(a)(4)(B). The
offense must involve a semiautomatic firearm capable of accepting a large-capacity magazine.
Id. § 2K2.1(a)(4)(B)(i)(I). The defendant must have been convicted under § 922(a)(6). Id.
§ 2K2.1(a)(4)(B)(ii)(III). And the defendant must have “committed the offense with knowledge,
intent, or reason to believe that the offense would result in the transfer of a firearm or
ammunition to a prohibited person[.]” Id. McKenzie objected to the court’s use of this provision
in calculating his guidelines range, asserting that he had no reason to think that Clark or
Schwartz were “prohibited person[s].”
Overruling McKenzie’s objection, the district court found that he had reason to believe
that Clark and Schwartz were prohibited persons. The court noted that McKenzie never asked
Clark why he could not buy the gun himself and required Clark to pay a $60 fee. It found even
“more impactful” that Schwartz had alerted McKenzie to the possibility that he would be denied
the right to purchase a firearm himself. Sent. Tr., R.126, PageID 940.
Using the higher base offense level, the court calculated McKenzie’s guidelines range as
30 to 37 months’ imprisonment. It imposed a 30-month sentence.
II
McKenzie asserts that the district court miscalculated his guidelines range by using the
base offense level in U.S.S.G. § 2K2.1(a)(4)(B) and thereby imposed a procedurally
No. 21-5295 United States v. McKenzie Page 5
unreasonable sentence. See United States v. Riccardi, 989 F.3d 476, 481 (6th Cir. 2021). This
subparagraph instructs a district court to set a defendant’s base offense level at “20, if”:
the (i) offense involved a (I) semiautomatic firearm that is capable of accepting a
large capacity magazine . . . and (ii) defendant . . . (III) is convicted under
18 U.S.C. § 922(a)(6) . . . and committed the offense with knowledge, intent, or
reason to believe that the offense would result in the transfer of a firearm or
ammunition to a prohibited person[.]
U.S.S.G. § 2K2.1(a)(4)(B). The corresponding commentary goes on to define “prohibited
person” as someone “described in 18 U.S.C. § 922(g) or § 922(n)”—statutory subsections that
bar various individuals (including convicted felons and those indicted for a felony) from
possessing firearms. Id. cmt. n.3.
The parties agree on (or at least do not expressly dispute) several points about this
subparagraph’s application. They agree that the government bore the burden of proof to
establish its applicability by a preponderance of evidence. Cf. United States v. Pawlak, 822 F.3d
902, 911 (6th Cir. 2016), abrogated on other grounds by Beckles v. United States, 137 S. Ct. 886(2017). They also do not object to the evidence on which the district court relied to find this
burden met, including records of Clark’s text messages, ATF notes of the interview with
Schwartz, the basic facts to which McKenzie pleaded guilty, and the information in his
presentence report. Cf. United States v. Cover, 800 F.3d 275, 278 (6th Cir. 2015) (per curiam).
McKenzie next agrees that the government satisfied two of the subparagraph’s three
requirements: that he was convicted under § 922(a)(6) and that his offense involved a
semiautomatic firearm that could accept a large-capacity magazine. The government likewise
agrees that the evidence did not show that McKenzie had “knowledge” that Clark or Schwartz
could not possess firearms or an “intent” to provide those individuals with guns because of their
prohibited status. The parties’ dispute thus boils down to whether the government showed that
McKenzie had “reason to believe that the offense would result in the transfer of a firearm . . . to a
prohibited person[.]” U.S.S.G. § 2K2.1(a)(4)(B)(ii)(III).
Our answer must start with a basic understanding of what the phrase “reason to believe”
means. Under standard definitions, a straw purchaser must have a “basis” or “cause” to “think”
or “suppose” that the true buyer cannot possess the firearm. Random House Webster’s
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Dictionary 61, 550 (2d ed. 1996) (defining “reason” and “believe”). As with many interpretive
questions, though, these definitions (mere synonyms, really) do not give much guidance on the
critical question: how much information must a defendant know about the true buyer to create a
sufficient “basis” or “cause” to conclude that the buyer is a prohibited person? Cf. United States
v. Hill, 963 F.3d 528, 532–33 (6th Cir. 2020).
Placing this phrase in its relevant context sheds more light on that question. See id. Two
contextual clues—one structural, the other historical—demonstrate the amount of information
that the guideline requires. To begin with, we must interpret this phrase against the guideline as
a whole. See United States v. Atl. Rsch. Corp., 551 U.S. 128, 135 (2007). Notably in that
respect, the subparagraph also applies to straw purchasers who have “knowledge” that a true
buyer cannot possess firearms or who have the “intent” to engage in the purchase because of that
fact. U.S.S.G. § 2K2.1(a)(4)(B)(ii)(III). This structure leaves no doubt that the Sentencing
Commission added “reason to believe” to expand the guideline’s scope by covering more than
just purchasers who act with “intent” or “knowledge.” We thus must not interpret the phrase
“reason to believe” to require a straw purchaser to know so much about a true buyer that one
could describe the purchaser as having “knowledge” of the buyer’s status. Such a reading would
render the phrase a nullity.
Not only that, the typical “ostrich” instruction clarifies that a party can have “knowledge”
of something if the party deliberately avoids learning of it. See United States v. Matthews,
__ F.4th __, 2022 WL 1077872, at *6 (6th Cir. Apr. 11, 2022). Think of the “drug mule” who
gets paid to drive a car filled with packages in deliberate ignorance of what is in them.
Cf. United States v. Wilson, 134 F.3d 855, 868 (7th Cir. 1998). That driver does not just have a
“reason to believe” of the illegal drug distribution, but “knowledge” of it too. So “reason to
believe” must also require less than this deliberate avoidance of knowledge—which would
satisfy the “knowledge” element.
Yet what amount of information below this level must the straw purchaser possess?
A review of the manner in which courts have used the phrase “reason to believe” sheds further
light on this question. Cf. Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297
(2006). Courts have long equated “reason to believe” either with the traditional probable-cause
No. 21-5295 United States v. McKenzie Page 7
standard (which requires a “probability or substantial chance” of something) or with an even
lower standard. District of Columbia v. Wesby, 138 S. Ct. 577, 586–87 (2018) (citation omitted);
see Rojas v. Garland, 998 F.3d 847, 850 (8th Cir. 2021); United States v. Vasquez-Algarin,
821 F.3d 467, 477–78 & 478 n.16 (3d Cir. 2016); Tejeda-Mata v. INS, 626 F.2d 721, 725 (9th
Cir. 1980).
Two examples demonstrate this historical usage. For one thing, the Supreme Court has
held that officers can enter the home of a person subject to an arrest warrant if the officers have
“reason to believe” that the person is inside. Payton v. New York, 445 U.S. 573, 603 (1980).
The circuit courts have long debated whether this “reason to believe” test is analogous to the
traditional probable-cause test or to a lower standard such as reasonable suspicion. See United
States v. Baker, 976 F.3d 636, 642 (6th Cir. 2020); compare Vasquez-Algarin, 821 F.3d at 477–
80, with United States v. Thomas, 429 F.3d 282, 286 (D.C. Cir. 2005). But no court has held that
it requires something more than probable cause. For another thing, in the famous case of Terry
v. Ohio, 392 U.S. 1 (1968), the Court held that an officer may conduct a pat-down search for
weapons if the officer has “reason to believe” that an individual is “armed and dangerous[.]” Id.
at 27. This standard does not require the officer to be “absolutely certain” that a suspect is
armed; it requires only a reasonable belief that the suspect is. Id.All told, this evidence shows that the phrase “reason to believe” is generally interpreted
to require nothing more than what the “probable cause” test traditionally has required. A straw
purchaser must know of facts that, at most, create a “fair probability” that the buyer is a
prohibited person. Florida v. Harris, 568 U.S. 237, 244 (2013) (quoting Illinois v. Gates,
462 U.S. 213, 238 (1983)). That is not a “high bar.” Wesby, 138 S. Ct. at 586 (citation omitted).
If anything, the phrase could be read (as it has been) to require something less than the probable-
cause test. But we need not answer that question to resolve this case.
This understanding of “reason to believe” comports with our precedent on the topic.
Although we have not interpreted the phrase “reason to believe” in § 2K2.1(a)(4)(B),
the guidelines use that phrase elsewhere. Among other provisions, a firearm-
trafficking enhancement applies if the defendant had “reason to believe” either that the recipient
could not possess a firearm or that the firearm would be used for unlawful purposes.
No. 21-5295 United States v. McKenzie Page 8
U.S.S.G. § 2K2.1(b)(5) & cmt. n.13(A)(ii). When applying this guideline, our cases have used
probable-cause logic. We have noted, for example, that the true buyer (for example, an
undercover ATF agent) need not actually be a prohibited person so long as the defendant learned
of facts that created a substantial likelihood that he was (for example, the undercover agent’s
statement that he was a convicted felon). See Pawlak, 822 F.3d at 912–13; United States v.
Henry, 819 F.3d 856, 870 (6th Cir. 2016); cf. Wesby, 138 S. Ct. at 586. (It turns out in this case
that Clark was a “prohibited person,” but Schwartz was not.)
We have also looked to the same “common-sense” factors on which courts have long
relied for probable-cause purposes. See Pawlak, 822 F.3d at 912 (quoting United States v.
Juarez, 626 F.3d 246, 256 (5th Cir. 2010)); cf. Wesby, 138 S. Ct. at 587. So a seller had a
sufficient reason to believe that a buyer could not lawfully possess firearms when the parties
transacted in secret, the buyer agreed to a substantial mark-up from the market price, and the
buyer told the seller that he had left the “truck running” in case something went wrong. Pawlak,
822 F.3d at 912. Likewise, a seller had reason to believe that the buyer would use a firearm for
an unlawful purpose when the buyer was his heroin dealer. See United States v. Freeman,
640 F.3d 180, 189 (6th Cir. 2011); see also United States v. Torres, 644 F. App’x 663, 667 (6th
Cir. 2016).
Cases from other circuits also support this interpretation because they have looked to the
same common-sense factors. In one case, for example, a straw purchaser had bought some
25 firearms (primarily semiautomatic rifles) for the same recipient over 13 months. Juarez,
626 F.3d at 249. The Fifth Circuit held that the straw purchaser had “reason to believe” that the
recipient would use the guns unlawfully because, among other things, the recipient had
approached her secretively without disclosing more than a nickname, had paid her a substantial
purchaser’s fee, and had refused to buy the guns himself or be “associated with the transactions.”
Id. at 252. Likewise, the Eleventh Circuit held that a seller had “reason to believe” that firearms
would be used unlawfully when the purchaser intended to resell them and told the seller that he
would spend the proceeds on a tattoo parlor “to make it look legit”—a statement implying that
illegal activity was afoot. United States v. Grinnage, 309 F. App’x 334, 336 (11th Cir. 2009)
(per curiam); see also, e.g., United States v. Asante, 782 F.3d 639, 644–46 (11th Cir. 2015);
No. 21-5295 United States v. McKenzie Page 9
United States v. Melvin, 463 F. App’x 141, 147 (3d Cir. 2012); United States v. Fox, 137 F.3d
527, 531 (7th Cir. 1998).
Under this interpretation, the district court properly applied the guideline in this case. At
the outset, we must consider a standard-of-review question. The parties do not really dispute the
“historical” facts about McKenzie’s background knowledge of, and interactions with, Clark and
Schwartz. Rather, they dispute whether those historical facts created the necessary “reason to
believe.” Should we review this question de novo or under a deferential clear-error standard?
Cf. United States v. Thomas, 933 F.3d 605, 608–10 (6th Cir. 2019). Some courts have used the
clear-error test, pointing out that a related issue (whether a defendant had “knowledge” that the
recipient could not possess firearms) is undoubtedly a question of fact. See, e.g., Juarez, 626
F.3d at 251–52. Others have suggested that we should treat this question as “mixed” and review
it de novo, a conclusion that would comport with how appellate courts review whether probable
cause exists. See Pawlak, 822 F.3d at 911; see also Ornelas v. United States, 517 U.S. 690, 696–
97 (1996). In the end, we need not choose a standard of review because, even under de novo
review, the district court properly found that McKenzie had reason to believe that Clark and
Schwartz were prohibited persons.
We begin with a big-picture point. According to Schwartz, McKenzie had become well
known in Knoxville as a person who would buy a gun “for whoever wanted one.” Rep., R.127-
1, PageID 975. His purchases of 13 guns in a six-month window lends credence to this belief.
PSR, R.117, PageID 735–36. The evidence also shows that McKenzie did not know Clark or
Schwartz particularly well. Clark had to track down McKenzie’s phone number from a different
person. Schwartz stated that he knew McKenzie only through the “nightclub scene” and did not
spend time with him elsewhere. Rep., R.127-1, PageID 975. Even though Clark and Schwartz
were at most acquaintances of McKenzie, they nevertheless requested that he buy them a gun.
That is an odd request. One obvious inference as to why they might make it is because the law
prohibited them from purchasing the gun themselves—that is, because they were “prohibited
person[s].” U.S.S.G. § 2K2.1(a)(4)(B).
Despite this risk, McKenzie did not ask Clark or Schwartz a single question about why
they wanted him to buy a gun for them. He did not make this most basic of inquiries even
No. 21-5295 United States v. McKenzie Page 10
though they were asking him to commit a crime by telling the firearms dealers that he was
buying a firearm for himself when, in fact, he was purchasing it for them. See 18 U.S.C.
§ 922(a)(6); Abramski, 573 U.S. at 179–89. His failure to ask any questions despite the obvious
risk involved could suggest that McKenzie was intentionally sticking his head in the sand to
avoid the truth—a fact that could show his deliberate avoidance of knowledge. See Matthews,
2022 WL 1077872, at *6; cf. United States v. Ramsey, 785 F.2d 184, 189 (7th Cir. 1986). Even
if these background facts did not create a sufficient enough risk to prove deliberate avoidance (as
the government recognizes by conceding that McKenzie lacked knowledge), they likely created a
“substantial chance” that Clark or Schwartz could not lawfully possess firearms. Wesby,
138 S. Ct. at 586 (citation omitted).
But there is more. Specific details about each transaction confirm this “common-sense”
notion. Pawlak, 822 F.3d at 912 (citation omitted). Many cases recognize that a decision to pay
a premium for a firearm can suggest that the buyer cannot possess the firearm or intends to use it
for unlawful purposes. See, e.g., id.; Juarez, 626 F.3d at 252. Why else would a rational buyer
agree to pay more than the market price? And here, Clark agreed to pay McKenzie a fee of
$60 for the purchase, representing over a 10% markup from the $450 price. McKenzie even told
Clark that he could always use a friend or significant other to buy the firearm if he did not want
to pay the fee. That Clark proceeded with the transaction anyway reinforces the impression that
he was forced to rely on McKenzie (and to pay the fee) because he could not lawfully possess
firearms.
McKenzie earned a smaller profit on the sale to Schwartz (about $20), and those two
never expressly discussed any purchaser’s fee (as far as the record shows). But we need not rest
our conclusion on that aspect of the second transaction because of a different piece of evidence.
Courts have also often relied on a buyer’s “red flag” statements when concluding that the
defendant had a reason to believe that the buyer could not possess weapons or intended to use
them unlawfully. See, e.g., Grinnage, 309 F. App’x at 336; Fox, 137 F.3d at 531. Schwartz
made one such remark in this case. While on his way to purchase a gun himself, he disclosed to
McKenzie that he might get “denied” the ability to buy the gun or be unable to purchase it for
“some other reason[.]” Rep., R.127-1, PageID 976. McKenzie later learned that Schwartz had
No. 21-5295 United States v. McKenzie Page 11
failed to successfully buy a gun on this occasion, which is why Schwartz followed up with him
asking for help. Id. Schwartz’s statements all but eliminate most of the “innocent” explanations
that McKenzie raises on appeal as to why someone might ask another to be a straw purchaser—
convenience, lack of familiarity, or a hesitancy to appear in a government database. Schwartz’s
efforts to buy the gun himself show that he asked for McKenzie’s help for none of these reasons.
His statements thus increased the risk even further that Schwartz could not lawfully possess a
gun.
McKenzie’s counterarguments do not persuade us otherwise. He correctly points out that
the government presented stronger evidence in most of the decisions that we have cited. Yet
none of these decisions notes (or even implies) that their facts establish any sort of floor for what
qualifies as a sufficient “reason to believe.” Indeed, many of them did not even distinguish
between “knowledge” and “reason to believe,” suggesting that the defendants in the cases might
well have acted with the higher “knowledge” mens rea. See, e.g., United States v. Lumpkin,
677 F. App’x 992, 994–95 (6th Cir. 2017); Juarez, 626 F.3d at 252. Another case cited by
McKenzie also mentioned this issue only in passing because the defendant did not raise it on
appeal. See United States v. Sacus, 784 F.3d 1214, 1217–18 (8th Cir. 2015).
McKenzie next reiterates his point that true buyers might ask straw purchasers to buy
them a gun for “innocent” reasons—such as a desire to use the straw purchaser’s right to a
discount on the price or a fear of having the buyer’s name in a government database. McKenzie
argues that the government cannot establish that a defendant had a “reason to believe” that the
true buyer cannot possess the firearm unless the evidence affirmatively rules out these other
possibilities. McKenzie adds that the government’s evidence in this case did not do so. But he
overreads the phrase “reason to believe.” Just as with the probable-cause test, suspicious facts
can create a sufficient reason to believe that the true buyer cannot lawfully possess a firearm
even if those facts might have an “innocent explanation” too. See Wesby, 138 S. Ct. at 588.
McKenzie’s contrary interpretation would all but equate “reason to believe” with “knowledge”
and effectively eliminate the former phrase from the guideline.
We affirm.