United States v. Anthony Palos

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0330p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
│
> No. 19-4186
v. │
│
│
ANTHONY R. PALOS, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 1:19-cr-00186-1—Benita Y. Pearson, District Judge.
Decided and Filed: October 15, 2020
Before: ROGERS, SUTTON, and STRANCH, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Jeffrey B. Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Cleveland, Ohio, for Appellant. Rebecca C. Lutzko, Robert J. Kolansky, UNITED STATES
ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.
_________________
OPINION
_________________
ROGERS, Circuit Judge. Anthony Palos pleaded guilty to being a felon in possession of
a firearm and was sentenced to 63 months’ imprisonment. Palos makes two challenges to his
sentence on appeal. First, he argues that one of his previous drug trafficking convictions no
longer qualifies as a “controlled substance offense” after our decision in United States v. Havis,
927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam), and therefore his base offense level under
No. 19-4186 United States v. Palos Page 2
the Guidelines was miscalculated. The Government concedes that our reading of Havis in
United States v. Cavazos, 950 F.3d 329 (6th Cir. 2020), is controlling on this issue and that a
remand is warranted. Second, Palos argues that he should not have received a sentencing
enhancement for possession of a stolen firearm because he had no knowledge that the firearm he
possessed was stolen. But our rejection of the same contention in United States v. Murphy,
96 F.3d 846 (6th Cir. 1996), remains good law notwithstanding the more recent decisions of
United States v. Roxborough, 99 F.3d 212 (6th Cir. 1996), Havis, and Rehaif v. United States,
139 S. Ct. 2191 (2019).
Police searched Palos’s Lorain, Ohio, residence on suspicion of drug trafficking and
found narcotics, drug paraphernalia, and a firearm. Palos admitted to police that he had
purchased the firearm “off the streets.” The firearm was later confirmed to be stolen. Palos, who
had previously been convicted of two separate drug trafficking offenses in state court, was
charged by a federal grand jury with being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). Palos pleaded guilty.
At the sentencing stage, the district court determined Palos’s two previous drug
trafficking convictions to be “controlled substance offenses” as defined in the career offender
Guideline, U.S.S.G. § 4B1.2. Under U.S.S.G. § 2K2.1(a)(2), a base offense level of 24 applies
to a defendant who unlawfully possesses a firearm “subsequent to sustaining at least two felony
convictions of . . . a controlled substance offense.” Palos conceded that his cocaine trafficking
conviction from 2002 qualified as a controlled substance offense but asserted that his 2010
cocaine trafficking conviction did not. The 2010 conviction involved a violation of Ohio
Revised Code § 2925.03(A)(1), which criminalizes “knowingly . . . “sell[ing] or offer[ing] to sell
a controlled substance.” Relying upon Havis, Palos argued that “offering to sell” cocaine was an
attempt offense that fell outside of the definition of a “controlled substance offense” under the
Guidelines. Thus, according to Palos, he had only one qualifying “controlled substance offense,”
which meant that his base offense level would be 20 rather than 24. See U.S.S.G. § 2K2.1(a)(4).
The district court rejected this argument, reasoning that an “offer to sell” is a completed offense,
not an attempt offense, and therefore the 2010 cocaine conviction was properly counted as a
“controlled substance offense.”
No. 19-4186 United States v. Palos Page 3
The district court further imposed a two-level increase for Palos’s possession of a stolen
firearm, pursuant to U.S.S.G. § 2K2.1(b)(4)(A). Palos again objected, arguing that the
Government was required to demonstrate that Palos knew the firearm he possessed was stolen.
The district court rejected this argument as well. Finally, the court enhanced the offense level by
four points because Palos had possessed the firearm in connection with a drug trafficking
offense. See U.S.S.G. § 2K2.1(b)(6)(B). After awarding Palos a three-point reduction for
acceptance of responsibility, the district court calculated his total offense level to be 27. Palos
was assigned a criminal history category of III, yielding an advisory Guidelines range of 87–108
months. However, the district court varied downward three levels to impose a below-Guidelines
sentence of 63 months’ imprisonment along with three years of supervised release. Palos timely
appealed.
As the Government concedes, Palos’s 2010 conviction for trafficking in cocaine does not
qualify as a controlled substance offense in light of our decisions in United States v. Cavazos,
950 F.3d 329 (6th Cir. 2020) and United States v. Alston, ___ F.3d ___, 2020 WL 5755465 (6th
Cir. Sept. 28, 2020). As provided in U.S.S.G. § 4B1.2(b),
[t]he term “controlled substance offense” means an offense under federal or state
law, punishable by imprisonment for a term exceeding one year, that prohibits the
manufacture, import, export, distribution, or dispensing of a controlled substance
(or a counterfeit substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export, distribute, or
dispense.
Similar to Ohio Revised Code § 2925.03(A)(1), under which Palos was convicted, the Texas
statute at issue in Cavazos criminalized “offering to sell a controlled substance.” 950 F.3d at
335. We noted in Cavazos that our earlier decision in United States v. Evans, 699 F.3d 858 (6th
Cir. 2012), “determined that ‘an offer to sell is properly considered an attempt to transfer a
controlled substance.’” Cavazos, 950 F.3d at 336 (alteration omitted) (quoting Evans, 699 F.3d
at 867). Because “Havis made clear that § 4B1.2’s definition of ‘controlled substance offenses’
does not include attempt crimes,” we held in Cavazos that “statutes that criminalize offers to sell
controlled substances are too broad to categorically qualify as predicate ‘controlled substance
offenses.’” Id. at 337. Cavazos is controlling here, and Palos is thus entitled to resentencing on
remand.
No. 19-4186 United States v. Palos Page 4
Although Palos’s base offense level was miscalculated, the district court correctly applied
the two-level enhancement for a stolen firearm. Section 2K2.1(b)(4) of the Guidelines provides:
[i]f any firearm (A) was stolen, increase by 2 levels; or (B) had an altered or
obliterated serial number, increase by 4 levels.
There is no dispute that Palos possessed a firearm and that the firearm was stolen. The plain
language of the Guideline would therefore appear to apply in this case.
Palos nonetheless contends that § 2K2.1(b)(4) contains a scienter requirement, and that
because Palos did not know that his gun was stolen, he cannot be subject to the enhancement.
But our decisions have held to the contrary. In United States v. Murphy, 96 F.3d 846, 849 (6th
Cir. 1996), we upheld the imposition of the stolen firearm enhancement under § 2K2.1(b)(4)(A)
where the defendant did not know that the firearm he possessed was stolen. In doing so, we
rejected the defendant’s argument that the lack of a mens rea requirement in § 2K2.1(b)(4)
violated due process. Id. While the defendant in Murphy conceded the absence of a mens rea
requirement in § 2K2.1(b)(4), we nevertheless took notice of the commentary to the Guidelines,
which stated that the enhancement applies regardless of whether the defendant knew or had
reason to believe that the firearm was stolen. Id. at 848 (citing U.S.S.G. § 2K2.1 cmt. n.19).1
We have since relied upon Murphy to hold that § 2K2.1(b)(4) is a strict liability enhancement
with respect to a stolen firearm. See United States v. Gibson, 817 F. App’x 202, 204–05 (6th Cir.
2020).
Our unpublished decision in Gibson rejected the precise argument that Palos presents to
us: that our en banc decision in Havis changes things in light of our post-Murphy decision in
United States v. Roxborough, 99 F.3d 212 (6th Cir. 1996). We reject the argument for many of
the same reasons that we set forth in Gibson.
In Roxborough, the defendant gun dealer pleaded guilty to violating federal law by
selling firearms away from his licensed premises. Id. at 213. Two firearms traced to the
defendant were found to have obliterated serial numbers. Id. The district court imposed the
1The comment note in existence at the time Murphy was decided is substantively identical to the one in the
current version of the Guidelines, located in U.S.S.G. § 2K2.1 cmt. n.8(B).
No. 19-4186 United States v. Palos Page 5
four-level enhancement in § 2K2.1(b)(4)(B), despite the absence of evidence showing that the
firearms’ serial numbers had been obliterated at the time defendant had sold them. Id. We
vacated the defendant’s sentence, holding that a lack of evidence linking the defaced firearms to
the crime of conviction precluded application of § 2K2.1(b)(4). Id. at 214–15. In reaching this
conclusion, we noted, “we have found nothing that persuades us that the § 2K2.1(b)(4)
enhancement is, as the district court held, to be imposed by way of strict, or virtually strict,
liability.” Id. at 214. Based on this language, Palos argues that Roxborough recognized a mens
rea requirement for § 2K2.1(b)(4). But the “strict liability” rejected in Roxborough was far
broader than the strict liability accepted in Murphy. Imposing strict liability in Roxborough
would have increased the punishment for firearms with numbers obliterated after the illegal sale,
and presumably firearms stolen after they were possessed by the defendant. Rejecting that
extreme version of “strict liability” obviously says nothing about strict liability for possessing or
selling a firearm that has previously been stolen or had its serial number obliterated. This
explains why we were not constrained by Roxborough when we held recently that the
enhancement for an altered firearm in § 2K2.1(b)(4)(B) does not have a knowledge requirement
regarding a previously altered serial number. See United States v. Sands, 948 F.3d 709, 713 (6th
Cir. 2020).
The issue of attenuation between the firearm and the crime of conviction that was held
dispositive in Roxborough is thus not present in this case. There is no dispute that Palos’s
firearm was stolen at the time Palos unlawfully possessed it. We have twice distinguished
Roxborough on this basis in upholding the imposition of the stolen firearm enhancement for
defendants convicted of being felons in possession of a firearm. See Gibson, 817 F. App’x at
204–5; United States v. Burns, 109 F. App’x 52, 57 (6th Cir. 2004).
Moreover, despite Palos’s argument to the contrary, Havis does not require
reconsideration of our precedents holding that § 2K2.1(b)(4) is a strict liability enhancement.
Havis held that the text of the Guidelines controls in cases where it conflicts with the Guidelines’
commentary. 927 F.3d at 386. At issue in Havis was the commentary to the career offender
Guideline, U.S.S.G. § 4B1.2, which stated that a “controlled substance offense” included attempt
crimes. Id. at 385. Because the text of the Guideline clearly excluded attempt crimes from the
No. 19-4186 United States v. Palos Page 6
definition of a “controlled substance offense,” the commentary stating otherwise was not
binding. Id. at 386. Applying Havis to this case, Palos contends that the commentary to § 2K2.1
stating that the stolen firearm enhancement “applies regardless of whether the defendant knew or
had reason to believe that the firearm was stolen” “improperly expands the [G]uideline[’s] text.”
We rejected this argument in Gibson and do so again here. In Gibson, we explained that,
“[w]hile the Application Note in Havis added a new category of crime to an exhaustive list
contained in the Guideline text itself, here, the enhancement’s text appears to bear the strict
liability interpretation contained in the commentary.” 817 F. App’x, at 204. Indeed, numerous
indicators point strongly in favor of this strict liability interpretation. First, there is nothing in the
language “[i]f any firearm [] was stolen, increase by 2 levels,” that would hint at a knowledge
requirement. U.S.S.G. § 2K2.1(b)(4). Further, the presence of express knowledge requirements
in other parts of § 2K2.1 suggests that the Sentencing Commission intentionally left out such a
requirement in § 2K2.1(b)(4). In § 2K2.1(b)(6), for example, the offense level is increased by
four levels if the defendant “possessed or transferred any firearm or ammunition with knowledge,
intent, or reason to believe that it would be transported out of the United States” (emphasis
added). Moreover, this construction of § 2K2.1(b)(4) is sensible in light of the underlying
purposes of the Guideline:
The strict liability enhancement for possession of a stolen firearm is rationally
related to the legitimate governmental goal of crime prevention: [the stolen
firearm enhancement] was promulgated on the premise that “stolen firearms are
used disproportionately in the commission of crimes.” Further, an ex-felon who
obtains a stolen firearm is more culpable than one who legally obtains a firearm.
Murphy, 96 F.3d at 849 (quoting United States v. Goodell, 990 F.2d 497, 499 (9th Cir. 1993)).
Finally, as we pointed out in Gibson, circuit courts, including ours, have unanimously recognized
the absence of a scienter requirement in § 2K2.1(b)(4). See 817 F. App’x at 205 (collecting
cases). Several of these circuits have gone so far as to say that the strict liability nature of
§ 2K2.1(b)(4) is “clear and unequivocal.” United States v. Mobley, 956 F.2d 450, 453 (3d Cir.
1992); accord Goodell, 990 F.2d at 499 n.2; United States v. Schnell, 982 F.2d 216, 220–22 (7th
Cir. 1992).
No. 19-4186 United States v. Palos Page 7
Palos’s final argument—that the Supreme Court’s recent decision in Rehaif, 139 S. Ct. at
2191, counsels in favor of finding a knowledge requirement in § 2K2.1(b)(4)—also lacks merit.
Rehaif established a mens rea requirement for convictions under 18 U.S.C. § 922(g), a statute
without an express mens rea element. 139 S. Ct. at 2200. As a basis for its decision, the Court in
Rehaif invoked “the presumption in favor of scienter even when Congress does not specify any
scienter in the statutory text.” Id. at 2195. Palos contends that this presumption should apply
with equal force to the text of § 2K2.1(b)(4), which he says is also silent on the issue of mens
rea. However, we have observed that when it comes to the existence of a mens rea element,
statutes and the Sentencing Guidelines are “fundamentally distinct.” Murphy, 96 F.3d at 848–49.
Accordingly, this court in Murphy declined to extend to § 2K2.1(b)(4) a similar mens rea
presumption for possession of an unregistered firearm under 26 U.S.C. § 5861(d). We noted that
the mens rea presumption for § 5861(d), first articulated in Staples v. United States, 511 U.S.
600, 619 (1994), “deal[t] only with the requisite intention for conviction of a crime” and thus
should not “include sentencing enhancements within its scope.” Murphy, 96 F.3d at 848–49.
This distinction between statutes and Guideline enhancements is logical in light of the
longstanding principle that “it is not unusual to punish individuals for the unintended
consequences of their unlawful acts.” Dean v. United States, 556 U.S. 568, 575 (2009). As the
Seventh Circuit has explained, the mens rea requirement in 18 U.S.C. § 922(g) “simply reflects
Congress’ desire not to punish ordinary, unwitting purchasers or users of firearms who would
have no reason to inquire so closely into the condition of a gun.” Schnell, 982 F.2d at 220. In
contrast, a felon who knowingly purchases a firearm “is not engaging in ‘apparently innocent
conduct,’ whether or not he knows that the gun is stolen or altered.” Id. at 221 (quoting Liparota
v. United States, 471 U.S. 419, 426 (1985)). Accordingly, the presence of a scienter requirement
in § 922(g), as determined by the Court in Rehaif, is not helpful to Palos.
For the reasons set forth above, we reverse in part the judgment of the district court and
remand for resentencing. We affirm the district court’s decision to impose a two-level
enhancement for possession of a stolen firearm under U.S.S.G. § 2K2.1(b)(4)(A).