United States v. Moore ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5885
AUBREY MOORE, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-94-115)
Argued: June 7, 1996
Decided: August 12, 1996
Before MURNAGHAN and NIEMEYER, Circuit Judges, and
CURRIE, United States District Judge for the
District of South Carolina, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Hunt Lee Charach, Federal Public Defender, Charleston,
West Virginia, for Appellant. Paul Thomas Camilletti, Assistant
United States Attorney, Wheeling, West Virginia, for Appellee. ON
BRIEF: C. Cooper Fulton, Assistant Federal Public Defender,
Charleston, West Virginia, for Appellant. William D. Wilmoth,
United States Attorney, Wheeling, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Aubrey Moore, III, pled guilty to transferring a firearm, knowing
that it would be used to commit a drug trafficking crime, in violation
of 18 U.S.C. § 924(h), and was sentenced to 21 months imprisonment.
On appeal, Moore argues that because his mistaken belief that the
guns he sold to undercover government agents would be used in drug
trafficking does not establish the knowledge required by § 924(h), the
district court erred in accepting his guilty plea. He further contends
that the district court illegally enhanced his sentence based on guns
that he sold to undercover government agents after offering to cooper-
ate in their sting operation because the government agents engaged in
"sentencing manipulation" by continuing to purchase firearms from
him. Finding Moore's arguments meritless, we affirm.
I
After arresting an underage individual for possession of a handgun
which the individual had illegally purchased from Moore, Detective
Steve Cain of the Fairmont (West Virginia) Police Department
referred the investigation to Special Agent Kent Hallsten of the Fed-
eral Bureau of Alcohol, Tobacco and Firearms. Detective Cain's
referral indicated that Moore, a federally licensed firearms dealer, was
suspected of (1) selling firearms to a person less than 21 years old and
(2) selling firearms at a premise other than his father's Fairmont resi-
dence, the only location permitted by his federal license.
Special Agent Hallsten recruited the juvenile as a confidential
informant and directed his participation in several controlled handgun
purchases from Moore. The juvenile bought one handgun from Moore
on November 12, 1993, and two more on November 23, 1993. Both
purchases occurred at Moore's own Fairmont residence.
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On December 2, 1993, the juvenile informant introduced Agent
Hallsten, acting undercover, to Moore. Hallsten told Moore that he
wished to buy machine guns, and Moore said that he could make a
machine gun. Agent Hallsten then informed Moore that he had sold
the two handguns the informant had purchased from Moore on
November 23 to individuals in Pittsburgh. When Moore indicated that
"he dealt with some black individuals" in Pittsburgh, Hallsten
responded that he was "probably dealing with the same type of indi-
viduals." Finally, Hallsten stated that he wished to buy two more
handguns from Moore.
Agent Hallsten met with Moore again on December 9, 1993, to see
if Moore had the two handguns that he had ordered. Moore said that
the guns were at his father's house but that Hallsten could pick them
up later that day. When Agent Hallsten returned about an hour later,
Moore, who had retrieved the guns, delivered them to Hallsten.
According to his later testimony, Hallsten informed Moore during
their first meeting on December 9 that he would be trading the hand-
guns for drugs in Pittsburgh. But according to Moore's account, Hal-
lsten did not mention that he intended to use the guns in drug
trafficking until after Moore had delivered them, and Moore
responded that he "didn't want to know what [Hallsten] was going to
do with them."
On December 16, 1993, Agent Hallsten obtained three more hand-
guns from Moore, and Moore telephoned Detective Cain, offering to
assist the police in apprehending Hallsten and the confidential infor-
mant. During another call to Cain on December 17, Moore stated that
"he had to do something" because a white man named "Kent" (who
was, in fact, Agent Hallsten) and a black man (who was, in fact, the
juvenile informant) were "pushing him for machine guns." Detective
Cain told Moore that he would get back to him in a few days after
talking with his chief and advised Moore not to do anything illegal.
In response to Moore's inquiry whether "the feds were trying to set
him up," Cain said that he did not know. Detective Cain reported
Moore's calls to Agent Hallsten, who believed that Moore had pro-
vided inaccurate information.
Detective Cain called Moore twice in late December 1993, again
admonishing him not to violate any state or federal laws. During the
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second conversation, Cain invited Moore to come in to sign a written
statement as to the information that he had previously provided over
the telephone. Although Moore indicated that he might sign such a
statement, he never did.
After December 29, 1993, Moore made no more reports to Detec-
tive Cain even though Agent Hallsten and the juvenile informant con-
tinued to call and solicit Moore for firearms, including machine guns.
The undercover agents bought two more handguns from Moore, one
on February 25 and another on March 28, 1994. Moore had advance
notice of both sales but did not contact Detective Cain either before
or after making them.
Moore and his father were charged in a 20-count indictment with
various offenses relating to the sale of firearms. Pursuant to a plea
agreement, Moore pled guilty to transferring a firearm, knowing that
it would be used to commit a drug trafficking offense, in violation of
18 U.S.C. § 924(h), for his handgun sales to undercover Agent Halls-
ten on December 9, 1993. The district court deferred acceptance of
Moore's plea pending its review of his presentence report.
Moore's presentence report recommended that his sentence be
enhanced three levels under U.S.S.G. § 2K2.1(b)(1)(C) because
eleven firearms had been involved in his relevant conduct, and four
levels under U.S.S.G. § 2K2.2(b)(5) because Moore had known that
the firearms he had sold would be used in connection with a drug traf-
ficking crime. Moore objected to the report, contending first that he
should not be held accountable for the five guns he had sold after tele-
phoning Detective Cain on December 16, 1993, because he had
believed from that date on that he was cooperating with the police to
apprehend "Kent" and the juvenile confidential informant. Moore fur-
ther argued that his sentence should not be enhanced for knowing the
firearms he sold would be used in drug trafficking because the gov-
ernment had impermissibly attempted to manipulate his sentence by
mentioning drugs only after he had delivered the handguns to Halls-
ten. In response to the government's argument that Moore's guilty
plea precluded him from arguing his lack of knowledge about the use
of the handguns, Moore's counsel conceded at the sentencing hearing
that Moore's plea had been voluntary but insisted that "at the time
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that plea was made it was made with the understanding that there was
a sentencing manipulation here."
In sentencing Moore, the district court applied both enhancements.
The court determined that Moore's relevant conduct involved eleven
firearms, observing that "even after Mr. Moore contacted . . . Steve
Cain, he continued to sell to the confidential informant and to Agent
Hallsten" and "Agent Hallsten's testimony that[Moore] provided
inaccurate and misleading information to Detective Cain [went] unre-
butted." In response to Moore's objection concerning his knowledge
of the use of the guns he had sold, the court first decided "as a matter
of law that the Fourth Circuit would not adopt the theory of sentenc-
ing manipulation in any case." Even if adopted, however, the court
concluded that the theory would not apply to Moore's case because
of Moore's
pattern of trading with the confidential informant and Agent
Hallsten . . . with the kinds of guns that were being bought,
not just the machine guns but the handguns which are typi-
cally used in drug transactions, with the fact that the defen-
dant questions his record keeping, but the fact that he knew
the guns were going out of state to be sold in Pittsburgh,
Pennsylvania, and with the fact that even after he heard the
agent say that the guns were going to be traded for drugs,
whether that was as the agent was walking out the door on
the 9th or whether it was in the course of a fuller conversa-
tion, he continued to sell guns to this agent and to the confi-
dential informant who had a relationship with this agent.
After the district court so resolved the sentencing issues, Moore per-
sisted in tendering his guilty plea, and the court accepted it. The court
then sentenced Moore to 21 months imprisonment, the minimum
under the applicable guideline range.
This appeal followed.
II
On appeal, Moore argues first that the district court erred in accept-
ing his guilty plea because he did not have the mens rea required by
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18 U.S.C. § 924(h). While conceding that Agent Hallsten had told
him that he intended to trade the handguns he was purchasing for
drugs, Moore maintains that he could not have known that the fire-
arms would be so used because in fact they never would be so used.
And mistaken belief, Moore submits, does not constitute knowledge
for purposes of § 924(h).
Because Moore voluntarily pled guilty and does not seek to with-
draw his plea, his challenge to his § 924(h) conviction is not cogniza-
ble on appeal. As we explained in United States v. Willis, 992 F.2d
489, 490 (4th Cir.), cert. denied, 510 U.S. 857 (1993), a valid guilty
plea waives a defendant's right to challenge the legal or factual basis
for his conviction.
Even if preserved, Moore's argument is untenable. In essence,
Moore's defense amounts to a claim of factual impossibility: Because
the guns he sold never would actually be used in a drug crime, he
could not have known that they would be used in a drug crime. In
United States v. Barton, 32 F.3d 61, 67 (4th Cir. 1994), however, we
recognized that courts routinely reject factual impossibility defenses
absent a strong indication of congressional intent to allow them, and
18 U.S.C. § 924(h) does not evince such a clear purpose. Thus, we
affirmed the defendant's § 924(h) conviction in United States v.
Harrison, 37 F.3d 133, 137 (4th Cir. 1994), even though he had sold
guns only to undercover government agents. Furthermore, because
one can never have actual knowledge about future events, Moore's
understanding in this case about the use of the handguns he sold is the
same understanding that he would have acquired from a purchaser
who truly intended to use the guns in drug trafficking.
III
Moore also contends that the district court mistakenly attributed to
him eleven guns, rather than six, and, therefore, erroneously enhanced
his sentence three levels, rather than two. Moore maintains that the
government committed "sentencing manipulation" by continuing to
engage in controlled gun purchases with him after he had offered his
cooperation to Fairmont Detective Steve Cain on December 16, 1993.
According to Moore, he was operating under the subjective but mis-
taken belief that he was assisting the police in a sting operation when
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he sold the five guns to undercover government agents on and after
December 16.
This court has not decided whether sentencing manipulation can
ever justify a downward departure but did observe in United States v.
Jones, 18 F.3d 1145, 1154 (4th Cir. 1994), that, if recognized, the the-
ory would require proof of "outrageous government conduct." Such
conduct has not been presented in this case. Although Detective Cain
told Moore to stall the would-be machine gun purchasers, he also
repeatedly told Moore not to do anything illegal. Moreover, Detective
Cain never arranged for Moore to cooperate with police, but merely
told Moore that he would get back to him concerning his offer to
cooperate. For his part, Moore provided inaccurate information to
Detective Cain; he never took up Cain's offer to come in and sign a
statement concerning the information he had provided over the tele-
phone; and after December 29, he failed to report any of his transac-
tions with Agent Hallsten or the confidential informant, including the
continuing discussions about machine guns and the two final handgun
sales.
Accordingly, we affirm the judgment of the district court.
AFFIRMED
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