United States v. Anthony Grayer , 625 F. App'x 313 ( 2015 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0643n.06
No. 14-6294
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Sep 17, 2015
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
ANTHONY GRAYER, ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
)
)
BEFORE: BATCHELDER, ROGERS, and KETHLEDGE, Circuit Judges.
ROGERS, Circuit Judge. Anthony Grayer, a felon, sold firearms and drugs to an
undercover agent. In addition to selling two firearms directly to the undercover agent, Grayer
referred the agent to an associate who sold the agent another four firearms. Grayer pled guilty to
two counts of violating 18 U.S.C. § 922(g), which proscribes the possession of firearms by
felons. Grayer received a sentencing guideline enhancement under U.S.S.G. § 2K2.1(b)(1)(A) of
four levels because the offense, including relevant conduct, involved three to seven firearms.
But because the referral regarding the four additional firearms was not shown to be possession
and thus not shown to be criminal, the enhancement was not properly applied. Resentencing is
accordingly required.
In July 2011, the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) targeted
Grayer for investigation on suspicion that he was trafficking narcotics and firearms between
No. 14-6294
United States of America v. Grayer
Jackson, Tennessee and Chicago, Illinois. ATF set up a sting operation and in August 2011, an
undercover agent began buying narcotics and firearms from Grayer in Jackson. The first
transaction between the agent and Grayer was for seven hydrocodone pills purchased from
Grayer at his home on August 13.
Several days after this initial purchase of illegal narcotics, the agent attempted to set up a
firearms deal, but Grayer replied that his associate had the firearms and he had not seen them.
On September 13, the undercover agent and a confidential informant met Grayer at his home to
buy firearms from Grayer’s associate. While the three people were gathered at Grayer’s house,
the associate contacted Grayer and instructed him to send the buyers to a different location in
Jackson for the deal. The agent and informant went to that location and purchased four firearms
from two unidentified people.
The sting operation continued for another month, with the undercover agent purchasing
drugs and firearms directly from Grayer. On September 22, Grayer sold the agent one firearm.
On October 6, after an unsuccessful attempt to acquire two Glock pistols for the agent, Grayer
sold the agent 30 hydrocodone pills. On October 13, Grayer sold the agent another firearm and
seven hydrocodone pills. In 2013, Grayer was indicted in the Western District of Tennessee on
two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He
pled guilty.
There were two disputes at sentencing relevant to this appeal.1 The first concerned the
number of firearms attributable to Grayer under U.S.S.G. § 2K2.1(b)(1). That provision
provides for an enhancement if the offense, including relevant conduct under U.S.S.G. § 1B1.3,
involved three or more firearms. Grayer argued that he had possessed and sold only two
1
Another dispute involved the application of a four-level enhancement for possession of a firearm in connection
with another felony offense under U.S.S.G. § 2K2.1(b)(6)(B). Grayer objected to its application and the
Government conceded its inapplicability.
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United States of America v. Grayer
firearms: the two that he had directly sold to the undercover agent. According to Grayer, he was
not responsible for the four firearms purchased from his associate because that sale was a legal
exchange between his associate and the undercover agent. The district court overruled Grayer’s
objection and found that Grayer had facilitated the sale of the other four firearms, reasoning that
felons cannot “be helping sell or facilitate the [sale] of firearms for somebody else.” This
finding resulted in a two-level enhancement because the offense involved three to seven
firearms.
The second dispute was over whether Grayer’s prior conviction in Illinois state court for
aggravated fleeing was a conviction of a crime of violence under the residual clause of
U.S.S.G. § 4B1.2(a)(2). The initial Presentence Report failed to classify the aggravated fleeing
conviction as a crime of violence, but the Government objected. Based on the United States
Supreme Court’s decision in Sykes v. United States, 131 S. Ct. 2267 (2011), overruled by
Johnson v. United States, 135 S. Ct. 2551 (2015), the district court found that the conviction for
aggravated fleeing was a conviction of a crime of violence. Because Grayer also had a prior
controlled substance conviction, under U.S.S.G. § 2K2.1(a)(2), this finding increased Grayer’s
base offense level from 20 to 24.
The district court calculated Grayer’s base offense level as 24 pursuant to U.S.S.G.
§ 2K2.1(a) because Grayer had a prior controlled substance conviction and a prior conviction for
a crime of violence. The district court added a two-level enhancement for the six firearms
attributable to Grayer under U.S.S.G. § 2K2.1(b)(1)(A). Then the district court subtracted three
levels for acceptance of responsibility. With a total offense level of 23 and a criminal history
category of VI, Grayer’s guidelines imprisonment range was 92 to 115 months. The court varied
downward, sentencing Grayer to 84-months’ imprisonment for each count, to run concurrently.
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United States of America v. Grayer
Grayer appealed, arguing that the enhancement under U.S.S.G. § 2K2.1(b)(1) for an
offense involving three or more firearms was improperly applied. After Grayer submitted his
principal appellant’s brief, the Supreme Court ordered reargument in Johnson v. United States on
the constitutionality of the residual clause of the Armed Career Criminal Act. Before the
Government’s appellee brief was submitted, Grayer filed a Fed. R. App. P. 28(j) letter arguing
that his prior conviction should not qualify as a crime of violence because the residual clause was
unconstitutionally vague. Grayer elaborated on this argument in his reply brief. After the
Supreme Court decided Johnson, we requested supplemental briefing on whether the residual
clause of U.S.S.G. § 4B1.2(a)(2) is unconstitutionally vague. Both parties filed supplemental
briefs arguing that the clause is unconstitutionally vague, and the Government conceded that
application of U.S.S.G. § 2K2.1(a) was plain error for that reason.
The district court erred in attributing the four firearms to Grayer. Relevant conduct under
U.S.S.G. § 1B1.3 must be criminal conduct. United States v. Catchings, 708 F.3d 710, 720 (6th
Cir. 2013). Here, the district court determined that Grayer’s conduct was criminal on the theory
that felons cannot “be helping sell or facilitate the [sale] of firearms for somebody else.” But
neither the Government nor the district court has identified a federal or state law criminalizing
such conduct. None is self-evident. Neither of the two most obvious candidates aligns with the
district court’s stated rationale. For example, “[18 U.S.C. §] 922(g) proscribes possession
alone.” Henderson v. United States, 135 S. Ct. 1780, 1784 (2015). It “does not affect[] the right
merely to sell or otherwise dispose” of firearms—so long as the felon never possesses them,
actually or constructively. Id. at 1784. In addition, 18 U.S.C. § 922(a)(1) does not prohibit
felons from helping to sell firearms, rather it prohibits “any person [from] engag[ing] in the
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business of . . . dealing in firearms.” We express no opinion on whether Grayer’s conduct
violated either of these two statutes.
When Grayer contested whether his conduct was criminal, the Government should have
identified the criminal statute that Grayer’s conduct violated. See United States v. Catchings,
708 F.3d 710, 721 (6th Cir. 2013); United States v. Schafer, 291 F.3d 932, 938–41 (7th Cir.
2002); United States v. Dickler, 64 F.3d 818, 831 (3rd Cir. 1995). When the Government fails to
identify the applicable criminal statute, the defendant is denied notice and a fair opportunity to
contest application of the enhancement. When the district court overrules the defendant’s
objection without clearly identifying the legal basis for its determination, the district court
hinders effective review of its determination. On remand, the district court should require the
Government to identify the applicable statute and to explain how Grayer’s conduct violated that
statute.
Finally, we need not address Grayer’s challenge to the application of the residual clause
of U.S.S.G. § 4B1.2(a)(2) to his case. The Government has conceded in supplemental briefing
that § 4B1.2(a)(2) does not apply here, so that issue is no longer contested in this case.
The sentence of the district court is vacated and the case is remanded for resentencing.
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