United States v. Demetrick Roberts ( 2020 )

United States Court of Appeals
For the Eighth Circuit
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No. 19-1176
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Demetrick Roy Roberts,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: November 11, 2019
Filed: May 1, 2020
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Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Demetrick Roberts pleaded guilty to unlawful possession of a firearm as a
previously convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court
determined an advisory guideline range of 110 to 120 months’ imprisonment, and
then sentenced Roberts below the range to a term of 96 months. Roberts appeals,
arguing that the district court committed procedural error by applying two
adjustments when calculating the guideline range. We conclude that the court
properly applied a four-level increase for possession of a firearm “in connection with
another felony offense” under USSG § 2K2.1(b)(6)(B), but that a two-level increase
for “using a minor to commit a crime” under USSG § 3B1.4 should not have applied.
Therefore, we vacate Roberts’s sentence and remand for resentencing.
The relevant facts arise from an incident on January 27, 2018, in Bettendorf,
Iowa. A police officer activated his emergency lights and approached a disabled
vehicle on the side of the road. As the officer approached, Roberts fled the disabled
vehicle on foot, and another officer tackled Roberts. During the struggle, a loaded
firearm fell out of Roberts’s right front sweatshirt pocket.
Roberts had obtained the firearm from a minor whose initials are B.D. Roberts
transferred a quarter-ounce of marijuana and $100 to B.D. in exchange for the
firearm. Roberts later told his girlfriend that B.D. did not want the gun because he
thought it was stolen. B.D. confirmed that he traded a stolen firearm to Roberts for
cash and marijuana. The record does not show who proposed the transaction or how
it was negotiated.
Roberts had sustained a prior felony conviction for a drug offense in 2004, and
he pleaded guilty in this case to unlawful possession of a firearm as a convicted felon.
At sentencing, the district court determined a base offense level of 20 and applied a
two-level increase for possession of a stolen firearm. USSG §§ 2K2.1(a)(4),
(b)(4)(A). The court then applied two adjustments that Roberts disputes: a four-level
increase for using or possessing a firearm in connection with another felony offense,
see USSG § 2K2.1(b)(6)(B), and a two-level increase for using a person of less than
eighteen years of age to commit the offense, see USSG § 3B1.4. Finally, the court
decreased the offense level by three based on acceptance of responsibility, see USSG
§ 3E1.1, and then varied downward from the advisory range under 18 U.S.C.
§ 3553(a)(1) based on Roberts’s lack of youthful guidance, mental or emotional
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condition, and acceptance of responsibility. We review the district court’s
interpretation and application of the sentencing guidelines de novo and its factual
findings for clear error. United States v. Outlaw, 946 F.3d 1015, 1019 (8th Cir.
2020).
Roberts first challenges the district court’s application of the four-level
increase under USSG § 2K2.1(b)(6)(B). This provision applies if a defendant “used
or possessed any firearm or ammunition in connection with another felony offense.”
The court determined that Roberts possessed the firearm in connection with the
felony offense of carrying weapons under Iowa law:
a person who goes armed with a dangerous weapon concealed on or
about the person, or who, within the limits of any city, goes armed with
a pistol or revolver, or any loaded firearm of any kind, whether
concealed or not, or who knowingly carries or transports in a vehicle a
pistol or revolver, commits an aggravated misdemeanor.
Iowa Code § 724.4(1).
Roberts concedes that he violated § 724.4(1). He argues, however, that the
Iowa offense does not constitute “another felony offense” under USSG
§ 2K2.1(b)(6)(B), because he could not commit the federal felon-in-possession
offense without also committing the Iowa offense.
His argument is foreclosed by United States v. Walker, 771 F.3d 449 (8th Cir.
2014). There, this court explained that a defendant does not “automatically commit”
the Iowa offense of carrying weapons simply by possessing a firearm as a prohibited
person. Id. at 452-53. The Iowa statute requires proof that the defendant went armed
“with a dangerous weapon concealed on or about the person,” or went armed with a
handgun “within the limits of any city.” Iowa Code § 724.4(1). Those elements are
not required to prove a felon-in-possession offense under federal law. Therefore, the
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defendant in Walker could have committed the underlying federal offense without
also violating the state statute, and we applied § 2K2.1(b)(6)(B) according to its
terms. 771 F.3d at 453. Roberts points out that the defendant in Walker carried a
firearm “concealed on or about the person” in a vehicle, while Roberts violated the
Iowa law by carrying a loaded firearm within city limits, but the particular means by
which each defendant violated § 724.4(1) is immaterial. There was no error in
applying the four-level increase.
Roberts also contends that the district court erred by applying a two-level
increase under USSG § 3B1.4. That provision applies if the defendant “used or
attempted to use a person less than eighteen years of age to commit the offense.”
“‘Used or attempted to use’ includes directing, commanding, encouraging,
intimidating, counseling, training, procuring, recruiting, or soliciting.” USSG
§ 3B1.4, comment. (n. 1). We have joined other courts in concluding that “there must
be ‘some affirmative act beyond mere joint participation in a crime with a minor’” for
the defendant’s conduct to constitute “use” of a minor under the guideline. United
States v. Fisher, 861 F.3d 802, 805 (8th Cir. 2017) (quoting United States v.
Pojilenko, 416 F.3d 243, 247 (3rd Cir. 2005)). The evidence must establish that the
defendant acted affirmatively to involve a minor in the crime. United States v. Paine,
407 F.3d 958, 965 (8th Cir. 2005).
We have upheld the increase, for example, when a drug trafficker served as a
mentor to a minor who sold drugs and learned the “game” of crack cocaine trafficking
from the defendant. United States v. Birdine, 515 F.3d 842, 845 (8th Cir. 2008). In
Paine, this court ruled that the increase was properly applied when a bank robber
“asked his son to accompany him on the robbery to provide moral support,” even
though the minor did not know about the robbery or participate in the crime. 407
F.3d at 965. But we deemed the increase inapplicable when a minor merely sat in a
getaway car while a defendant robbed a bank, and made “unilateral” use of maps to
plan routes while traveling with the defendant. Fisher, 861 F.3d at 805. The district
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court in this case observed that there is “not a real well developed body of case law”
concerning § 3B1.4, but thought the fact that Roberts traded marijuana and cash to
a minor for a stolen handgun was sufficient to support the increase.
This court has not addressed whether a prohibited person “uses” a minor “to
commit” a felon-in-possession offense by acquiring a firearm from a minor. Perhaps
the closest authority on point is United States v. Hodges, 315 F.3d 794 (7th Cir.
2003), where the defendant was convicted of receiving stolen weapons and
possessing a firearm as a felon. Id. at 798. The court upheld an increase under
§ 3B1.4 because the defendant encouraged a minor and others to steal guns and
deliver them to the defendant, and also encouraged the minor and others to “front”
the firearms to him without payment so that he could sell the guns and share the
proceeds. Id. at 802-03. The court clarified, however, that its opinion did not suggest
that a defendant “uses” a minor “in an arm’s length transaction such as the purchase
by a fence of a gun from a minor.” Id. at 802 n.2.
On the limited record here, we believe that the evidence shows only that
Roberts engaged in an arm’s-length transaction with a minor: he traded marijuana
and cash to the minor, B.D., in exchange for a firearm. Unlike the defendant in
Hodges, Roberts did not “use” B.D. in any broader criminal activity involving the
trafficking of stolen firearms. Unlike the defendant in United States v. Regalado, 639
F. App’x 266 (5th Cir. 2016), who involved a minor in a drug trafficking conspiracy
by accepting drugs from the minor, Roberts did not participate in jointly undertaken
criminal activity. Id. at 268. Roberts committed a status offense by possessing a
firearm as a prohibited person, and he committed it alone. Although Roberts’s
relevant conduct under the guidelines likely included not only unlawful possession,
but also unlawful receipt of a firearm as a felon, 18 U.S.C. § 922(g)(1), and unlawful
receipt of a stolen firearm, 18 U.S.C. § 922(j), the government does not rely on those
acts or address whether a receiver “uses” an arm’s-length supplier to commit a receipt
offense. On the arguments and record presented, we conclude that an unadorned
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arm’s-length transaction with a minor, like mere joint participation in an offense as
a partner, does not amount to “use” of a minor “to commit the offense” of unlawful
possession of a firearm by a felon.
The district court sentenced Roberts to a term of imprisonment below the
advisory guideline range based on 18 U.S.C. § 3553(a). We do not know, however,
whether the outcome would have been different if the court had determined a
different advisory range. Therefore, we vacate Roberts’s sentence and remand for
resentencing. Although we reject the government’s argument for an increase under
USSG § 3B1.4, the district court may consider that Roberts facilitated a minor’s sale
of a stolen firearm, see 18 U.S.C. § 922(j), and distributed a controlled substance to
a minor, cf. USSG § 2D1.1(b)(16)(B), when evaluating the factors under § 3553(a).
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