United States v. Balaam Benjamin Grinnage , 309 F. App'x 334 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-13395 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 30, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-00132-CR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BALAAM BENJAMIN GRINNAGE,
a.k.a. Bizo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(January 30, 2009)
Before CARNES, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Balaam Benjamin Grinnage appeals his 77-month sentence imposed
pursuant to his guilty plea on one count of felon in possession of a firearm, 18
U.S.C. §§ 922(g)(1) and 924(a)(2). On appeal, Grinnage argues that the district
court erroneously applied a guidelines enhancement: (1) for engaging in the
trafficking of firearms, because there is no evidence that he was informed that the
individuals to whom he sold the firearms intended to use or dispose of them
unlawfully; (2) for possessing a firearm in connection with the offense of
distributing marijuana, because the undercover investigator entrapped Grinnage,
and the government failed to show that he was predisposed to sell marijuana or
carry a firearm while doing so; and (3) for using a minor to commit an offense,
because the minor was actually using Grinnage, and the district court erroneously
applied the term “use” in the guidelines. After careful review, we affirm.
“[We] review[] a District Court’s interpretation of the Sentencing Guidelines
de novo, and its factual findings for clear error.” United States v. Vance, 494 F.3d
985, 994 (11th Cir. 2007). The government must establish the facts necessary to
support a sentencing enhancement by a preponderance of the evidence. See United
States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir.), cert. denied, 127 S.Ct.
2964 (2007).
First, we find no merit to Grinnage’s claim that the district court erroneously
applied a guidelines enhancement for engaging in the trafficking of firearms.
Where a defendant is convicted of a firearms possession offense, the guidelines
2
provide for a four-level enhancement “[i]f the defendant engaged in the trafficking
of firearms[.]” U.S.S.G. § 2K2.1(b)(5). The application notes instruct that this
enhancement applies where the defendant:
(i) Transported, transferred, or otherwise disposed of two or more
firearms to another individual, or received two or more firearms with
the intent to transport, transfer, or otherwise dispose of firearms to
another individual; and
(ii) Knew or had reason to believe that such conduct would result in
the transport, transfer, or disposal of a firearm to an individual --
(I) Whose possession or receipt of the firearm would be
unlawful; or
(II) Who intended to use or dispose of the firearm unlawfully.
Id., comment. (n.13(A)).
In arguing that he does not qualify for the Section 2K2.1(b)(5) enhancement,
Grinnage relies on United States v. Askew, 193 F.3d 1181 (11th Cir. 1999), which
held that the enhancement did not apply because the district court clearly erred in
finding that the defendant had reason to believe that the firearms would be used in
another felony. However, Askew which involved an enhancement under former
§ 2K2.1(b)(5) for a defendant who “possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to believe that it would be used or
possessed in connection with another felony offense.” See 193 F.3d at 1183-85.
But the current § 2K2.1(b)(5) trafficking enhancement -- which is applicable to
3
Grinnage -- does not contain such a specific requirement that the defendant had
reason to believe that the firearms would be used in another felony. Rather, it
requires that a defendant (1) transfer two or more firearms to an individual, which
Grinnage conceded that he did, (2) with knowledge or reason to believe that the
individual “intended to use or dispose of the firearms unlawfully.” See U.S.S.G.
§ 2K2.1, comment. (n.13(A)).
The record here shows, among other things, that an undercover investigator
testified that he had told Grinnage about how the money from selling guns was
spent on a tattoo parlor “to make it look legit,” and there would have been no
reason for the investigator to make the money “look legit” unless something illegal
was occurring. The government thus established by a preponderance of the
evidence that Grinnage had reason to believe that he was transferring firearms to
individuals who intended to dispose of them unlawfully. Moreover, unlike Askew,
where a police officer testified that some of the stolen guns were of the type used
for hunting, see 193 F.3d at 1185, Grinnage points to nothing in the record
suggesting that he had reason to believe that the tattoo parlor operators were
somehow receiving money from lawful transactions with the guns that Grinnage
sold them. Indeed, the trafficking enhancement here contains no such limitation on
the transferee’s intended disposition of the firearms, only that it be unlawful. See
4
U.S.S.G. § 2K2.1, comment. (n.13(A)(ii)(II)). On this record, we conclude that the
district court did not clearly err in finding that, based on the totality of the
circumstances surrounding the firearms transactions, Grinnage had reason to
believe that he was selling firearms to individuals who intended to dispose of them
unlawfully, nor did it err in applying the § 2K2.1(b)(5) enhancement to Grinnage’s
sentence.
Next, we reject Grinnage’s argument that the district court erroneously
enhanced his guidelines range for possessing a firearm in connection with the
offense of distributing marijuana. The guidelines provide for a four-level
enhancement “[i]f the defendant used or possessed any firearm or ammunition in
connection with another felony offense[.]” U.S.S.G. § 2K2.1(b)(6). The
application notes instruct that this enhancement applies “if the firearm . . .
facilitated, or had the potential of facilitating, another felony offense[.]” Id.,
comment. (n.14(A)). The application notes further provide that this enhancement
applies “in the case of a drug trafficking offense in which a firearm is found in
close proximity to drugs, drug-manufacturing materials, or drug paraphernalia.”
Id., comment. (n.14(B)). We afford an “expansive interpretation” to the term “in
connection with.” See United States v. Rhind, 289 F.3d 690, 695 (11th Cir. 2002)
(analyzing the former § 2K2.1(b)(5) enhancement for possession of a firearm in
5
connection with another felony offense). “[I]n certain circumstances, mere
possession of a firearm can be enough to apply a sentencing enhancement.” United
States v. Jackson, 276 F.3d 1231, 1234 (11th Cir. 2001).
We have made clear that we do not recognize a claim of sentencing
entrapment, which focuses on a defendant’s conduct and predisposition to commit
an offense. See United States v. Ciszkowski, 492 F.3d 1264, 1270 (11th Cir.
2007). We have considered a claim of sentence factor manipulation, which focuses
on the nature of the government’s conduct. See id. “[S]entencing factor
manipulation occurs when the government’s manipulation of a sting operation . . .
requires that the manipulation be filtered out of the sentencing calculus.” Id. “[T]o
bring sting operations within the ambit of sentencing factor manipulation, the
government must engage in extraordinary misconduct.” Id. at 1271.
Here, Grinnage does not contest, and in fact acknowledges, that he possessed
a firearm while selling marijuana. Instead, his sole challenge on appeal is that the
district court erred in applying the § 2K2.1(b)(6) enhancement because he was
entrapped when the undercover investigator directed him to pick up the firearm and
then orchestrated the drug sale. However, to the extent that he presents a claim of
sentencing entrapment, which focuses on a defendant’s conduct and predisposition
to commit an offense, we do recognize it as a viable defense. See id. at 1270.
6
Moreover, to the extent Grinnage raises sentencing factor manipulation as a
defense, he did not make the claim until his reply brief, and has thus abandoned the
argument. See United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir. 2003);
United States v. Magluta, 418 F.3d 1166, 1185-86 (11th Cir. 2005). But in any
event, any action by the government was not so extraordinary to constitute
sentencing manipulation. See Ciszkowski, 492 F.3d at 1270-71. We therefore
conclude that the district court did not err in applying the enhancement for
possessing a firearm in connection with another felony offense.
Finally, we are unpersuaded that the district court erroneously applied an
enhancement for using a minor to commit the offense. The guidelines provide for
a two-level enhancement “[i]f the defendant used or attempted to use a person less
than eighteen years of age to commit the offense or assist in avoiding detection of,
or apprehension for, the offense[.]” U.S.S.G. § 3B1.4. The application notes
provide that “‘[u]sed or attempted to use’ includes directing, commanding,
encouraging, intimidating, counseling, training, procuring, recruiting, or
soliciting.” Id., comment. (n.1). We have held that “a § 3B1.4 adjustment is
warranted only where the defendant takes some affirmative step to involve a minor
in the commission of the criminal activity.” United States v. Taber, 497 F.3d 1177,
1181 (11th Cir. 2007), cert. denied, 128 S.Ct. 949 (2008). We have also observed
7
that “[t]he unambiguous legislative design of section 3B1.4 is to protect minors as
a class from being solicited, procured, recruited, counseled, encouraged, trained,
directed, commanded, intimidated, or otherwise used to commit crime.” United
States v. McClain, 252 F.3d 1279, 1286 (11th Cir. 2001) (citations omitted,
emphasis added).
As an initial matter, McClain supports the district court’s conclusion that the
definition of “used or attempted to use” in the commentary to Section 3B1.4 is not
an exclusive list, but that some other means of using a minor to commit an offense
could warrant the application of the enhancement. Moreover, the record clearly
reflects that Grinnage could not have engaged in firearms transactions at the store
without the minor’s introduction, and as a result, the minor was not merely present
or a mere participant with Grinnage. Further, that the minor may have used
Grinnage to bolster his own image and reputation at the store does not mean that
Grinnage did not also use the minor. As a result, while Grinnage did not involve
the minor in the operation in general, the district court did not err in determining
that Grinnage “used” the minor to commit the offense, and we affirm the district
court’s application of the Section 3B1.4 enhancement.
AFFIRMED.
8