U.S v. Jiminez
United States Court of Appeals for the Fifth Circuit
No. 13-40457
Decided on: September 17, 2014
Applying The Sentencing Guidelines: “Reasonably Foreseeable Actual Knowledge”
Blog By: Stephen N. Preziosi Esq., Criminal Appeals Lawyer
Issue: Whether the District Court erred when it applied United States Sentencing Guidelines § 2K2.1(c), which requires knowledge and intent that a Defendant possessed or transferred a firearm or ammunition in connection with another offense, when the facts showed that it was only reasonably foreseeable that Defendant knew the firearms were being illegally smuggled and did not possess actual knowledge.
Summary: Defendant was charged with aiding and abetting the making of a false statement with respect to information required to be kept in the records of a licensed firearms dealer. Defendant’s Pre Sentence Report (PSR) found that the cross-reference at U.S.S.G. § 2K2.1(c)(1)(A), which applies where a Defendant possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense, applied to Defendant.
The PSR report explained that it was reasonably foreseeable that Defendant knew that the firearms were being illegally smuggled into Mexico. The Government stated that it had no objection to the District Court’s consideration of a minor role reduction for the cross-reference; Defendant appealed to the Fifth Circuit Court of Appeals where the Court vacated and remanded for re-sentencing.
Holding: The Fifth Circuit Court of Appeals held that the District Court erred when it utilized the wrong legal standard in applying U.S.S.G § 2K2.1(c), when there was no record Defendant had actual knowledge that the firearms were being illegally smuggled. Because the Government has failed to meet their burden to show that the error was harmless, the Court vacated Defendant’s sentence and remanded for re-sentencing.
U.S.S.G § 2K2.1, applies where a Defendant possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense.
Facts: Defendant Jiminez was charged with aiding and abetting the making of a false statement with respect to information required to be kept in the records of a licensed firearms dealer. Defendant’s PSR found that the cross-reference at U.S.S.G. § 2K2.1(c)(1)(A), which applies where a Defendant possessed or transferred a firearm or ammunition with knowledge or intent that it would be used or possessed in connection with another offense, applied to Jiminez.
The PSR report explained that it was reasonably foreseeable that Defendant knew that the firearms were being illegally smuggled into Mexico. The Government stated that it had no objection to the District Court’s consideration of a minor role reduction for the cross-reference; Defendant appealed to the Fifth Circuit Court of Appeals. The Fifth Circuit held that the District Court erred in utilizing the wrong legal standard in applying the U.S.S.G. § 2K2.1(c) cross-reference, and because the Government has failed to meet its burden and showed no indication on the record that Defendant possessed actual knowledge of that offense, the Court vacated Defendant’s sentence and remanded for re-sentencing.
Legal Analysis: The Fifth Circuit Court of Appeals held that they ordinarily review the appeal of a sentence for procedural error and for substantive reasonableness, applying abuse of discretion standard, Gall v. United States, 552 U.S 38, 51 2007. However, because Defendant challenges only the District Court’s application of the Guidelines, the Court of appeals held that they need consider only that procedural aspect of the sentence, United States v. Simmons, 649 F.3d 301, 305 5th Cir. 2011. The District Court’s application of the Guidelines is reviewed de novo, and its factual findings are reviewed for clear error, United States v. Hicks, 389 F.3d 514, 529 5th Cir. 2004.
If a District Court commits a significant procedural error, such as an improper calculation of the Guidelines range, an Appellate Court must reverse and remand unless the error was harmless, United States v. Delgado-Martinez, 654 F.3d 750, 752-52 5th Cir.2009. A procedural error during sentencing is harmless is the error did not affect the District Court’s selection of the sentence imposed.
The Fifth Circuit Court of Appeals held that a party seeking to uphold the sentence bears the burden of establishing harmless error and must point to evidence in the record that will convince an Appellate Court that the District Court had a particular sentence in mind and would have imposed it, notwithstanding the error made in arriving at the Defendant’s Guideline’s range.
Here, Defendant challenged the application of the U.S.S.G § 2K2.1 (c) (1(A) cross reference, arguing that the District Court applied the wrong legal standard and that, even if it applied the correct legal standard, the evidence does not support the application of the cross-reference.
The Fifth Circuit held that the cross-reference applies only if the District Court finds that 1) the firearm facilitated or had the potential to facilitate another offense., and 2) the Defendant transferred the firearm knowingly or intending it to be used or possessed for that offense, United States v. Johnston, 559 F.3d 292, 295 5th Cir. 2009.
The Fifth Circuit held in Johnston, they reviewed a District Court’s application of the cross-reference where the Defendant knew or should have known that the firearm would be used to commit another offense; the Court reversed and remanded for re-sentencing clarifying that the cross-reference applies only if the Defendant transferred the gun knowing it would be used to commit the other offense, and stating that, the cross reference should not be followed if the Defendant should have known, but did not actually know the gun would be used for the other offense.