USA v. Mireya Juarez

Filing

PUBLISHED OPINION FILED. [09-40861 Affirmed ] Judge: PEH , Judge: EBC , Judge: PRO Mandate pull date is 12/03/2010 for Appellant Mireya Rivera Juarez [09-40861]

USA v. Mireya Juarez ase: 09-40861 C

Document: 00511291964 Page: 1 Date Filed: 11/12/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 12, 2010 N o . 09-40861 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f ­ A p p e lle e , v. M I R E Y A RIVERA JUAREZ, D e fe n d a n t ­ A p p e lla n t .

A p p e a l from the United States District Court for the Southern District of Texas

B e fo r e HIGGINBOTHAM, CLEMENT, and OWEN, Circuit Judges. P R I S C I L L A R. OWEN, Circuit Judge: M ir e y a Rivera Juarez pleaded guilty, pursuant to a written plea a g r e e m e n t, to one count of making a false statement to a federally licensed fir e a r m s dealer in violation of 18 U.S.C. §§ 924(a)(1)(A) and (a)(2). Juarez now a p p e a ls her sentence, arguing that the district court erred when it applied two fo u r -le v e l enhancements under U.S. Sentencing Guidelines (U.S.S.G.)

§ 2K2.1(b)(5) and § 2K2.1(b)(6). For the reasons discussed below, we affirm. I T h e underlying facts of this case are undisputed. Over an approximately t h ir t e e n -m o n t h period, Juarez, a forty-four year old naturalized United States

Dockets.Justia.com

Case: 09-40861 Document: 00511291964 Page: 2 Date Filed: 11/12/2010

No. 09-40861 c it iz e n with no prior criminal history, purchased twenty-five firearms for a man k n o w n to her only as "El Mano." The majority of these firearms were militarys t y le assault weapons, including AK-47 and AR-15 assault rifles, and authorities u lt im a te ly discovered two of the purchased firearms--a Colt .38 caliber pistol a n d a Bushmaster .223 caliber rifle--in the possession of gang members in M e x ic o . Juarez began making these purchases after meeting "El Mano" at the F a m ily Center in Roma, Texas. Juarez approached him to request money for t a x i fare, and "El Mano" asked Juarez if she would be willing to purchase fir e a r m s in exchange for money. Juarez agreed. J u a r e z 's purchases for "El Mano" occurred in the following manner. "El M a n o " would contact Juarez by cell phone and instruct her to meet him at the F a m ily Center. He would then give her money and lend her his vehicle, which s h e would use to drive to a gun store. Juarez would purchase the firearms that " E l Mano" had specified, naming herself on ATF Form 4473 as the actual buyer o f the firearms and providing a false address. Juarez would then drive back to t h e Family Center, transfer the firearms to "El Mano," and receive $200 for each fir e a r m that she purchased. This arrangement ended when "El Mano" informed J u a r e z that there would be no further purchases because law enforcement was " t o o hot." A T F agents began investigating Juarez after receiving a tip that she had p u r c h a s e d several highly trafficked firearms. Juarez was ultimately charged by in d ic t m e n t with three counts of making false statements to federally licensed fir e a r m s dealers, in violation of 18 U.S.C. §§ 924(a)(1)(A) and (a)(2). She pleaded g u ilt y to one count pursuant to a written plea agreement, and the district court o r d e r e d the preparation of a presentence investigation report (PSR). The PSR assigned Juarez a base offense level of twelve. Juarez then r e c e iv e d a six-level increase because the offense involved twenty-five to ninety2

Case: 09-40861 Document: 00511291964 Page: 3 Date Filed: 11/12/2010

No. 09-40861 n in e firearms and a two-level reduction for acceptance of responsibility, which le ft Juarez with a total offense level of sixteen. After combining Juarez's offense le v e l with her category I criminal history, her guidelines range of imprisonment w a s twenty-one to twenty-seven months. The Government filed written objections to the PSR. Specifically, the G o v e r n m e n t argued for two separate four-level increases in Juarez's base offense le v e l, pursuant to U.S.S.G. § 2K2.1(b)(5) and § 2K2.1(b)(6). The § 2K2.1(b)(5) e n h a n c e m e n t applies to a defendant convicted of a firearms offense who " e n g a g e d in the trafficking of firearms."1 The application notes to the guidelines p r o v id e that the enhancement applies when the defendant (i) transported, transferred, or otherwise disposed of two or more fir e a r m s to another individual, or received two or more fir e a r m s with the intent to transport, transfer, or otherwise d is p o s e of firearms to another individual; and knew or had reason to believe that such conduct would result in the transport, transfer, or disposal of a firearm to an in d iv id u a l-- (I) (II) whose possession or receipt of the firearm would be u n la w fu l; or who intended to use or dispose of the firearm u n la w f u lly .2

(ii)

T h e § 2K2.1(b)(6) enhancement applies "[i]f the defendant used or possessed any fir e a r m . . . in connection with another felony offense; or possessed or transferred a n y firearm . . . with knowledge, intent, or reason to believe that it would be u s e d or possessed in connection with another felony offense." 3

1

U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2K2.1(b)(5) (2008). U.S.S.G. § 2K2.1 cmt. n.13. U.S.S.G. § 2K2.1(b)(6).

2

3

3

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No. 09-40861 T h e Government argued that the § 2K2.1(b)(5) enhancement should apply t o Juarez because [t ]h e types of the weapons Juarez purchased, coupled with Juarez's s t a t e m e n t that "El Mano" said she could not purchase any more fir e a r m s because law enforcement was "too hot," and her proximity t o the U.S.­Mexican border and its associated violence leads to the o b v io u s conclusion that she should have had reason to believe that t h e weapons would be transported, transferred, or disposed of to in d i v i d u a ls in Mexico, a disposition which would have been u n la w fu l. A d d it io n a lly , the Government noted that authorities discovered two of the fir e a r m s that Juarez purchased in the possession of gangs in Mexico. The G o v e r n m e n t also argued that the same facts supported the application of the § 2K2.1(b)(6) enhancement. The probation office ultimately filed an addendum t o the PSR in which it stated that it did not enhance Juarez's offense level under e it h e r § 2K2.1(b)(5) or § 2K2.1(b)(6) because there was insufficient evidence to c o n c lu d e that the enhancements applied, and the office deferred further c o n s id e r a t io n of the issue to the district court. T h e district court initiated Juarez's sentencing hearing by obtaining J u a r e z 's affirmance that she had reviewed the PSR with her attorney and that e v e r y t h in g in the PSR was factually correct. The district court also granted J u a r e z an additional one-level reduction in her offense level based on her a c c e p t a n c e of responsibility. The district court then turned to the Government's a r g u m e n t regarding the § 2K2.1(b)(5) and § 2K2.1(b)(6) enhancements and c o n c lu d e d that both applied, explaining: I t just seems to me that you would have to be deliberately blind to t h e circumstances if we--our proximity to the border, the s u b s t a n t ia l drug traffic that is common knowledge to any member o f the community, the violence associated with that, just south of o u r border, the types of weapons that are being involved h e r e -- a s s a u lt , military style, automatic weapons, the nature in w h ic h she's being asked to purchase these, as a straw person,

4

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No. 09-40861 s o m e b o d y who goes only by a nickname, and the fact that she leaves t h e m in a truck, gets paid, walks away from the truck, that the c ir c u m s ta n c e s of that are obvious, I think, to anyone who opens t h e ir eyes to the situation to know that these drugs [sic] are being t a k e n into Mexico to be used for unlawful purposes, and of course, t h e mere transporting them into Mexico is unlawful . . . . *** S o I can prove based on those obvious circumstances that the t r a ffic k in g enhancement is appropriately assessed, as well as the e n h a n c e m e n t for transferring these with reason to believe that they w o u ld be possessed in connection with another felony offense, so b o th of those enhancements are justifiably assessed. I n reaching its decision, the district court did not consider the statement by "El M a n o " to Juarez--that Juarez could no longer purchase firearms for him because la w enforcement was "too hot"--as the statement occurred after Juarez's final p u r c h a s e and thus could not support the enhancements because it did not e v id e n c e Juarez's knowledge at the time she purchased the firearms. The

d is t r ic t court also granted Juarez, at her request, a two-level reduction because it found that she was a minor participant. W it h the one-level reduction for acceptance of responsibility, the two-level m in o r participant reduction, the four-level enhancement under § 2K2.1(b)(5), a n d the four-level enhancement under § 2K2.1(b)(6), Juarez's revised offense l e v e l was twenty-one. This resulted in a guidelines range of thirty-seven to fo r t y -s ix months, and the district court sentenced her to thirty-seven months of im p r is o n m e n t . On the Government's motion, the district court dismissed the r e m a in in g counts of the indictment. This appeal followed. II W e first consider the district court's decision to apply the § 2K2.1(b)(5) t r a ffic k in g enhancement to Juarez. "We review the district court's

in t e r p r e t a t io n or application of the Sentencing Guidelines de novo and its factual

5

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No. 09-40861 fin d in g s for clear error."4 A district court may draw reasonable inferences from t h e facts when determining whether an enhancement applies, and we review t h o s e inferences for clear error.5 The government must prove sentencing

e n h a n c e m e n t s by a preponderance of the evidence.6 A s relevant here, the § 2K2.1(b)(5) enhancement applies where the d e fe n d a n t (1) "transported, transferred, or otherwise disposed of two or more fir e a r m s to another individual" and (2) "knew or had reason to believe that such c o n d u c t would result in the transport, transfer, or disposal of a firearm to an in d iv id u a l . . . who intended to use or dispose of the firearm unlawfully."7 Juarez c o n c e d e s that she transferred two or more firearms to "El Mano," but she c o n t e n d s that the record is devoid of evidence that she knew or had reason to b e lie v e that "El Mano" intended to use or dispose of those firearms unlawfully. Thus, she argues, the Government failed to establish the second requirement for t h e § 2K2.1(b)(5) enhancement. A B e fo r e addressing the specifics of Juarez's argument, we note a p r e lim in a r y issue--the parties appear to dispute whether we should review the d i s t r ic t court's decision to apply the § 2K2.1(b)(5) enhancement under the de n o v o or clear error standard of review. Juarez argues that the facts before the d is t r ic t court were uncontested--neither the Government nor Juarez disputed t h e PSR's recital of the facts--and the relevant issue on appeal is the district c o u r t's application of § 2K2.1(b)(5) to those facts. Juarez contends that the

United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007) (citing United States v. Huerta, 182 F.3d 361, 364 (5th Cir. 1999)). United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010) (citing United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006)).
6 5

4

Trujillo, 502 F.3d at 357. U.S.S.G. § 2K2.1 cmt. n.13.

7

6

Case: 09-40861 Document: 00511291964 Page: 7 Date Filed: 11/12/2010

No. 09-40861 d is t r ic t court's decision was simply a legal conclusion drawn from subsidiary fa c t s , and she notes that, in this circuit, an "application of the facts to the g u id e lin e s is a question of law subject to de novo review." 8 J u a r e z 's argument is without merit. She challenges the district court's d e t e r m in a t io n that, when she purchased firearms for "El Mano," she possessed t h e requisite "knowledge" or "reason to believe" that "El Mano" intended to use o r dispose of those firearms unlawfully. We have reviewed such determinations fo r clear error in prior cases,9 and nothing in the facts of this case warrants a d e p a r t u r e from that approach. B Reviewing the district court's decision for clear error, we conclude that the d is t r ic t court did not clearly err when it applied the § 2K2.1(b)(5) enhancement. There is considerable evidence from which the district court could infer that J u a r e z knew or had reason to believe that her conduct would result in the t r a n s p o r t , transfer, or disposal of a firearm to an individual who intended to use o r dispose of the firearm unlawfully. "El Mano" was unwilling to purchase the w e a p o n s himself, and he sent Juarez alone to make the purchases, indicating t h a t he did not wish to be associated with the transactions. The clandestine n a t u r e of Juarez's dealings with "El Mano" and the fact that she was paid $200 a b o v e the retail cost of each of twenty-five weapons for her role also would give J u a r e z reason to believe that the firearms were being purchased for an unlawful

8

United States v. Shell, 972 F.2d 548, 550 (5th Cir. 1992).

See United States v. Green, 360 F. App'x 521, 523-24 (5th Cir. 2010) (reviewing for clear error a district court's finding that a defendant knew or had reason to believe that she was transferring firearms to someone who intended to use or dispose of the firearms unlawfully under § 2K2.1(b)(5)); United States v. Caldwell, 448 F.3d 287, 291-92, 293 (5th Cir. 2006) (reviewing for clear error a district court's finding that defendants had reason to believe that firearms would be used or possessed in connection with a felony offense under former § 2K2.1(b)(5)).

9

7

Case: 09-40861 Document: 00511291964 Page: 8 Date Filed: 11/12/2010

No. 09-40861 p u r p o s e .1 0 It is highly unlikely that a person who intended to use these weapons la w fu lly would pay a $200 premium for each of them. Although Juarez points to our recent decision in United States v. Green to s u p p o r t her claim of error, we believe that case is distinguishable. In Green, we v a c a t e d a district court's decision to apply the § 2K2.1(b)(5) enhancement to a d e fe n d a n t who, in exchange for $1,500, purchased five Beretta pistols in Texas a n d then smuggled the weapons into Mexico for her husband and another man.11 H e r e , Juarez purchased over two dozen weapons, most of them military-style a s s a u lt rifles, and delivered them to a man she knew only by a nickname. The n u m b e r of weapons, their type, and the circumstances surrounding Juarez's r e la t io n s h ip with "El Mano" all serve to separate this case from Green. Under s u c h circumstances, we cannot conclude that it was clear error for the district c o u r t to infer that Juarez knew or had reason to believe that she was t r a n s fe r r in g firearms to an individual who intended to use or dispose of them in a n unlawful manner.1 2 Accordingly, we affirm the district court's application of t h e § 2K2.1(b)(5) enhancement to Juarez. III W e next consider Juarez's challenge to the district court's decision to apply t h e § 2K2.1(b)(6) enhancement. Section 2K2.1(b)(6) provides for a four-level e n h a n c e m e n t when the defendant "possessed or transferred any firearm . . . with k n o w le d g e , intent, or reason to believe that it would be used or possessed in

See Caldwell, 448 F.3d at 292 (recognizing that evidence of knowledge that firearms would be used or possessed in connection with drug activity included their sale on the street above the market price).
11

10

360 F. App'x at 522-25.

Cf. United States v. Mena, 342 F. App'x 656, 658 (2d Cir. 2009) (affirming district court's imposition of the § 2K2.1(b)(5) trafficking enhancement when the defendant, as instructed by his brother-in-law, twice delivered guns in a plastic bag in exchange for cash on a street in Manhattan).

12

8

Case: 09-40861 Document: 00511291964 Page: 9 Date Filed: 11/12/2010

No. 09-40861 c o n n e c t io n with another felony offense."1 3 A firearm is "used or possessed in c o n n e c t io n with another felony offense" when the firearm "facilitated, or had the p o t e n t ia l of facilitating" the felony offense.1 4 Thus, in order to demonstrate that t h e § 2K2.1(b)(6) enhancement applied to Juarez, the Government needed to e s t a b lis h by a preponderance of the evidence (1) another felony offense, (2) that o n e of the firearms that Juarez purchased facilitated, or had the potential of fa c ilit a t in g , that felony offense, and (3) that Juarez possessed or transferred the fir e a r m with knowledge, intent, or reason to believe that it would be used or p o s s e s s e d in connection with that offense.15 T h e Government argued below that the same circumstances that s u p p o r t e d the application of the § 2K2.1(b)(5) enhancement supported an e n h a n c e m e n t under § 2K2.1(b)(6). The district court agreed. The district court d id not expressly identify a felony upon which it relied when applying the § 2K2.1(b)(6) enhancement to Juarez, but the district court observed that "these d r u g s [sic] are being taken into Mexico to be used for unlawful purposes, and of c o u r s e , the mere transporting them into Mexico is unlawful." The Government, o n appeal, points to illegal firearms smuggling in violation of 22 U.S.C. § § 2778(b) and (c) and 22 C.F.R. § 121.1 as the felony offense supporting the e n h a n c e m e n t , and Juarez refers to this offense as well. Accordingly, we consider J u a r e z 's appeal of the § 2K2.1(b)(6) enhancement with that offense in mind.16

13

U.S.S.G. § 2K2.1(b)(6) (2008). U.S.S.G. § 2K2.1 cmt. n.14(A).

14

See United States v. Anderson, 559 F.3d 348, 357 (5th Cir.), cert. denied, -- U.S. --, 129 S. Ct. 2814 (2009). See United States v. Condren, 18 F.3d 1190, 1194 (5th Cir. 1994) (noting that the initial step in evaluating a § 2K2.1(b)(6) enhancement is to "first identify the other felony employed in the district court's enhancement calculus").
16

15

9

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No. 09-40861 J u a r e z makes two arguments on appeal. First, she claims that the illegal s m u g g l in g of firearms into Mexico cannot constitute "another felony offense" u n d e r § 2K2.1(b)(6). Second, she claims that, as with the § 2K2.1(b)(5)

e n h a n c e m e n t , the Government failed to establish that she possessed or t r a n s fe r r e d a firearm with "knowledge, intent, or reason to believe" that it would b e used or possessed in connection with a felony offense. A W e first consider Juarez's argument that the illegal transportation or s m u g g lin g of firearms into Mexico cannot constitute "another felony offense" u n d e r § 2K2.1(b)(6). Juarez claims that the commentary to the guidelines e x c lu d e s firearms trafficking and possession offenses from the definition of " a n o th e r felony offense" for purposes of the § 2K2.1(b)(6) enhancement and that t h e transportation or smuggling of firearms into Mexico is such an excluded firearms trafficking offense. J u a r e z did not present this argument to the district court. Juarez's only o b je c t io n to the application of § 2K2.1(b)(6) at sentencing was her claim that the G o v e r n m e n t presented insufficient evidence to establish that she knew or had r e a s o n to believe that any of the firearms would be used or possessed in c o n n e c t io n with a felony offense. That objection did not preserve the issue J u a r e z now raises--that the district court relied on a felony offense that cannot c o n s t it u t e "another felony offense" under the guidelines. We review this

p a r tic u la r challenge for plain error only.1 7 We find plain error when (1) there w a s an error or defect; (2) the legal error was clear or obvious, rather than s u b je c t to reasonable dispute; and (3) the error affected the defendant's

United States v. Perez, 585 F.3d 880, 886 (5th Cir. 2009) (reviewing an objection that defendant "failed to preserve" at sentencing "for plain error only").

17

10

Case: 09-40861 Document: 00511291964 Page: 11 Date Filed: 11/12/2010

No. 09-40861 s u b s t a n t ia l rights.1 8 If Juarez satisfies those three elements, the decision to c o r r e c t the error then lies within our discretion.1 9 We will exercise our discretion t o correct the error only if "the error `seriously affect[s] the fairness, integrity, o r public reputation of judicial proceedings.'" 2 0 T h e district court did not plainly err. Although we acknowledge that s e v e r a l of our sister circuits have taken the position Juarez now advances--that a firearms possession or trafficking offense cannot constitute "another felony o ffe n s e " for purposes of the § 2K2.1(b)(6) enhancement--each of the cases Juarez c it e s reached that decision after applying a version of the commentary to the g u id e lin e s that has since been amended.2 1 Our sister circuits, in categorically e x c lu d in g firearms possession and trafficking offenses from the definition of " a n o th e r felony offense," relied on an application note that provided, in relevant p a r t: "[a]s used in [former] subsection (b)(5) [now subsection (b)(6)] . . . `another fe lo n y offense' . . . refer[s] to offenses other than explosives or firearms

United States v. John, 597 F.3d 263, 284 n.91 (5th Cir. 2010) (citing Puckett v. United States, 129 S. Ct. 1423, 1429 (2009)).
19

18

Id. Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)).

20

See United States v. Valenzuela, 495 F.3d 1127, 1133-34 (9th Cir. 2007) (holding that "a defendant's sentence may not be enhanced under [former] § 2K2.1(b)(5) [now § 2K2.1(b)(6)] if the other felony offense is a firearms trafficking or possession offense"); United States v. Harper, 466 F.3d 634, 650 (8th Cir. 2006) ("`Another felony offense' for purposes of [former] § 2K2.1(b)(5) does not include firearms possession or trafficking offenses."); United States v. Lloyd, 361 F.3d 197, 201 (3d Cir. 2004) ("[R]egardless of the interpretation given to the word `another' in [former] § 2K2.1(b)(5), `firearms possession or trafficking offenses' are categorically removed from the set of crimes that may constitute `another felony offense.'"); United States v. Boumelhem, 339 F.3d 414, 427-28 (6th Cir. 2003) (holding that a district court erroneously applied the former § 2K2.1(b)(5) enhancement because the predicate felony--conspiracy to ship or transport firearms and ammunition in foreign commerce--was a "firearms trafficking offense" that could not serve as "another felony offense" under the guideline); United States v. Garnett, 243 F.3d 824, 827 (4th Cir. 2001) (noting that a firearms trafficking offense "cannot serve as the basis for the [former] section 2K2.1(b)(5) enhancement").

21

11

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No. 09-40861 p o s s e s s io n or trafficking offenses."2 2 A 2006 amendment to the guidelines

r e m o v e d that note from the commentary,2 3 however, and the commentary to the 2 0 0 8 version of the guidelines--the version applicable in this case--defines " a n o th e r felony offense" as "any federal, state, or local offense, other than the e x p lo s iv e or firearms possession or trafficking offense." 2 4 T h e addition of the word "the" in the amendment indicates the Sentencing C o m m is s io n 's intention to no longer exclude all explosive or firearms possession o r trafficking offenses from the definition of "another felony offense" under § 2K2.1(b)(6). The commentary now excludes from the definition of "another fe lo n y offense" only the possession or trafficking offense that serves as the basis fo r the defendant's conviction. Here, Juarez's crime of conviction, making a false s t a t e m e n t to a federally licensed firearms dealer, is distinct from the crime used t o support the application of the enhancement, the illegal transportation of fir e a r m s into Mexico. Accordingly, we reject Juarez's argument that the district c o u r t erred by treating the illegal transportation or smuggling of firearms into M e x ic o as "another felony offense" under § 2K2.1(b)(6). B J u a r e z contends that the Government failed to establish that she p o s s e s s e d or transferred a firearm with "knowledge, intent, or reason to believe" t h a t it would be used or possessed in connection with a felony offense. She a s s e r t s that the record does not support the district court's conclusion that she k n e w or had reason to believe that any of the firearms she transferred to "El M a n o " would be smuggled into Mexico. As we already noted with respect to the

22

U.S.S.G. § 2K2.1 cmt. n.15 (2005). U.S.S.G. app. C amend. 691 (Supp. 2008). U.S.S.G. § 2K2.1 cmt. n.14(C) (2008) (emphasis added).

23

24

12

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No. 09-40861 § 2K2.1(b)(5) enhancement, whether Juarez had the requisite "knowledge" or " r e a s o n to believe" is reviewed for clear error.25 W e conclude that the district court did not clearly err when it imposed the e n h a n c e m e n t under § 2K2.1(b)(6). Juarez purchased over two dozen weapons, t h e majority of which were military-style assault rifles, for a man that she knew o n ly as "El Mano." Many of these purchases were repetitive--in one one-month p e r io d , for example, Juarez purchased the same model of firearm six different t im e s . In every transaction with "El Mano," she delivered the weapons in Roma, T e x a s , a town located just one mile from the border between Mexico and the U n ite d States, in some instances after transporting them from a gun store in M c A lle n , Texas, thirty-seven miles from Roma. The district court cited the v io l e n c e across the border between Texas and Mexico as reason for Juarez to b e lie v e that the assault-type weapons she illegally purchased were intended to b e transported the very short distance separating Roma from Mexico. These fa c t s , considered as a whole, support the district court's conclusion that Juarez t r a n s fe r r e d a firearm with knowledge or reason to believe that it would be s m u g g le d into Mexico. Although Juarez compares her case to the Eleventh Circuit's decision in U n ite d States v. Askew, in which that court concluded that a district court e r r o n e o u s ly applied the § 2K2.1(b)(6) enhancement to a defendant who assisted in the theft of fifty-four firearms from a gun store with the knowledge that the g u n s were being stolen to be sold,2 6 Juarez's circumstances are somewhat d iffe r e n t from those present in Askew. The court in Askew relied heavily on the fa c t that the defendant was a "non-seller" in that he knew the firearms that he

See United States v. Caldwell, 448 F.3d 287, 291-93 (5th Cir. 2006) (reviewing for clear error a district court's finding that defendants had reason to believe that firearms would be used or possessed in connection with a felony offense).
26

25

193 F.3d 1181, 1185 (11th Cir. 1999).

13

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No. 09-40861 h e lp e d to steal would be sold but did not know to whom they would be sold or u n d e r what circumstances.2 7 By contrast, the district court here could

r e a s o n a b ly infer from all of the circumstances surrounding Juarez's purchases t h a t Juarez transferred at least one of those twenty-five weapons with a "reason t o believe" that it would be illegally smuggled into Mexico. To be sure, the record contains no direct evidence establishing Juarez's k n o w le d g e with respect to the future use of the firearms she purchased. But, as w e previously have explained, "the sentencing court is permitted to make c o m m o n -s e n s e inferences from the circumstantial evidence."2 8 Under the clear e r r o r standard of review, the district court's decision to apply the enhancement n e e d only be "plausible in light of the record as a whole."2 9 Based on the

p a r tic u la r facts before us, the district court's finding that Juarez transferred a fir e a r m with knowledge or reason to believe that it would be illegally smuggled in t o Mexico is plausible, and we cannot say that there is clear error. The district c o u r t did not clearly err in applying the § 2K2.1(b)(6) enhancement. * * *

F o r the aforementioned reasons, the sentence is AFFIRMED.

27

Id. at 1184-85. Caldwell, 448 F.3d at 292. Id.

28

29

14