United States v. Moody, Darryl

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 12, 2006
Decided September 26, 2006
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 05-3927
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03 CR 318
DARRYL MOODY,
Defendant-Appellant. Joan B. Gottschall,
Judge
ORDER
A jury found Darryl Moody guilty of four firearms offenses after he was
caught in Chicago trying to sell a machine gun he stole in Mississippi. On appeal he
argues only that the district court erred by applying a four-level upward adjustment
under U.S.S.G. § 2K2.1(b)(5) upon finding that Moody had reason to believe the
firearm he attempted to sell would be used in connection with another felony
offense. Moody has failed to establish that the district court’s finding is clearly
erroneous. We affirm.
I.
On March 24, 2003, Moody—who was visiting Chicago from Hattiesburg,
Mississippi—telephoned Timothy Hinton, the brother of Moody’s friend Krishanna
No. 05-3927 Page 2
Hinton, and invited him to an apartment near 51st Street and Drexel Boulevard.
When Hinton arrived, Moody explained that Krishanna had given him Hinton’s
phone number and told him her brother “would be able to help them with
something.” Moody then showed Hinton a Heckler and Koch, Model MP-5
submachine gun and offered to sell it for $5,000. Moody told Hinton that, in the
past, he “would buy” guns in Mississippi and supply them to gang members in
Chicago. Hinton, who by then had realized that the meeting had nothing to do with
his sister, extricated himself from the situation by telling Moody that “this is
something that my guys are looking for.” Hinton then left, ostensibly to find a
buyer. Instead he immediately called a friend at the suburban Riverdale Police
Department and reported the incident.
The next day Hinton met with officers from Riverdale, who referred him to
the Illinois State Police. Hinton took one of the state troopers to see the apartment
where the attempted sale had taken place. During that time, Hinton received a
phone call from Moody, who wanted to know why Hinton was taking so long to find
a buyer.
Based on Hinton’s information, a state judge issued a search warrant for the
apartment where Moody was staying and storing the weapon. Later that day,
officers from the Illinois State Police Tactical Response team executed the search
warrant and found the gun on a couch as Moody attempted to hide it under a jacket.
Officers also located ammunition for the gun in the apartment. Moody was arrested
along with DeShawn Davis and DeShawn McBride, who had accompanied him from
Mississippi, and Jeffrey Bullock, the lessee of the apartment.
Once in custody Moody agreed to speak to the police officers that had issued
the Miranda warnings. His admissions were memorialized in a written, signed
statement that was prepared by one of the officers. Moody admitted that he and
another individual had stolen four automatic weapons from the Big Shot Indoor
Shooting Range in Hattiesburg. Moody retained two guns: the Heckler and Koch
submachine gun and a Glock machine pistol, which he later sold for $700 and an
ounce of cocaine. Moody hoped to sell the submachine gun in Chicago while he,
Davis, and McBride were there to promote their rap group. He wanted to sell the
gun for at least $3,000 because he “heard people in Chicago could afford it.” In
Chicago he stayed at the apartment of Jeffrey Bullock, whom he described as a
“friend.” In a written statement, Bullock admitted that Moody was staying at his
apartment and had asked him to “call some of the people I know to try and sell the
gun.” Bullock later admitted to law enforcement officials that he is a member of the
Gangster Disciples street gang.
Moody was charged with (1) possession of a firearm by a felon, 18 U.S.C.
§ 922(g)(1); (2) possession of a machine gun, id. § 922(o)(1); (3) transport of a
No. 05-3927 Page 3
machine gun, id. § 922(a)(4); and (4) transport of a stolen firearm, id. § 922(i). A
jury found him guilty on all counts after a four-day trial. A presentence
investigation report (PSR) was prepared addressing, in relevant part, whether
Moody’s base offense level should be adjusted under U.S.S.G. § 2K2.1(b)(5), which
calls for a four-level increase in the defendant’s offense level if he “used or possessed
any firearm or ammunition in connection with another felony offense; or 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.”
In a memorandum filed before sentencing, the government took the position
that Moody qualified for the increase under either prong, contending that he
possessed the weapon “in connection with” the burglary of the Mississippi gun shop,
and that he had “reason to believe” another felony would be committed with the gun
because he intended to sell it to a known gang member and knew he wasn’t going to
use the weapon to brush his teeth or chase flies off a manure pile. In support of the
latter theory, the government cited the evidence that Moody stayed with Jeffrey
Bullock—a member of the Gangster Disciples—in Chicago and had asked Bullock to
contact “some of the people he knew” to find a buyer. It further noted that Moody
had told Hinton that he sold guns he obtained in Mississippi to gang members in
Chicago. The government also observed that Moody had concluded from his
interaction with Hinton that Hinton was acting as a middleman for “his guys”:
presumably, gang members. In response, Moody contested the applicability of the
adjustment, arguing that he did not possess the machine gun “in connection” with
stealing it. He also contended that he had no reason to believe he was transferring
the gun to someone who would possess or use it in connection with another felony,
challenging the sufficiency of the government’s evidence that he intended to sell the
gun to gang members.
At the sentencing hearing, the district court again heard from both parties
regarding the applicability of the adjustment. The court rejected the government’s
theory that Moody himself possessed the weapon in connection with another felony
offense, but the court was persuaded that the government had demonstrated, by a
preponderance of the evidence, that Moody had reason to believe the weapon would
be used in another felony. Citing our decision in United States v. Jemison, 237 F.3d
911 (7th Cir. 2001), the district court noted that having the intent to sell a firearm
to gang members amounts to having “reason to believe” the weapon will be used in
another felony offense. The district court opined that the evidence of a connection to
gang activity “was not quite as clear as it was in Jemison,” but cited as an
additional basis for the adjustment the fact that “we’ve got an illegally obtained,
stolen machine gun which Mr. Moody is trying to sell to somebody under
circumstances that could not possibly be legal.” The court added: “[N]obody is going
to buy a gun like this in these circumstances for legal purposes.” The court applied
No. 05-3927 Page 4
the adjustment over Moody’s objection. After resolving the remaining objections, the
district court arrived at an advisory guidelines range of 97 to 121 months. The court
imposed a sentence of 100 months’ imprisonment.
II.
Moody contends that the district court erred in finding he had reason to
believe the machine gun would be used in another felony because there was no
evidence that he knew anything about the potential buyer, such as his gang
affiliation, or had any other reason to think the buyer would commit a crime with
the gun. Whether a defendant had reason to believe a firearm would be used or
possessed in connection with another felony is a factual determination reviewed for
clear error. United States v. Inglese, 282 F.3d 528, 539 (7th Cir. 2002); see United
States v. Howard, 454 F.3d 700, 702 (7th Cir. 2006) (explaining clear error review of
factual determinations at sentencing).
To show that a defendant had reason to believe that a firearm “would be used
or possessed in connection with another felony offense,” the government need not
establish that the defendant had reason to believe the gun would be used in
connection with any particular felony. Inglese, 282 F.3d at 539; Jemison, 237 F.3d
at 918. In Jemison, we held that a defendant who intends to provide firearms to a
street gang—the Gangster Disciples in Jemison’s case—has “good” reason to believe
that the guns “would in all probability be used in connection with felonious
activities.” 237 F.3d at 918. And in Inglese, we upheld the district court’s finding
that the defendant had the necessary reason to believe that “at least one of the guns
he sold” would be put to felonious use where the buyers (undercover police officers)
had made statements to the effect that they planned to shoot people. 282 F.3d at
539. We deemed it “irrelevant” that the district court did not make any findings
about “whether Inglese knew which guns would be used to commit which felonies.”
Id. Moody stresses that in his case, there is only a tenuous connection to gang
activity compared to Jemison, and unlike in Inglese, the potential buyer did not
explicitly reveal a plan to use the gun to commit a crime.* But Moody’s narrow
reading of those cases is unpersuasive.
In reviewing the application of § 2K2.1(b)(5) to apply we look to the totality of
the circumstances. We have upheld the application of the adjustment where the
district court stated it was drawing “a reasonable inference” that the defendant had
*
Mere possession of the automatic weapon Moody was selling is a crime, see
18 U.S.C. § 922(o)(1), but the reference to “another offense” in § 2K2.1(b)(5) means
an offense “other than . . . firearms possession or trafficking offenses.” U.S.S.G.
§ 2K2.1, cmt. n.15.
No. 05-3927 Page 5
reason to believe that of the 59 (mostly semi-automatic) guns he bought in less than
two years, some would wind up being possessed in connection with other felonies.
See United States v. Rogers, 46 F.3d 31, 32-33 (7th Cir. 1995). The district court in
Rogers cited the “nature of the guns” and the “amount of the guns” as factors
supporting the inference that the defendant was not buying guns for “sport usage,
collection, and self-defense.” Id. at 33. In affirming, we emphasized that the
guideline does not require “knowledge,” but simply “reason to believe” the gun
would be used or possessed in connection with another felony. See id. Moody
attempts to distinguish his case from Rogers based on evidence in that case that 16
weapons purchased by the defendant had later been used in felonies. But the
government need not prove that the weapons were ever used in another crime; the
guideline focuses entirely on the defendant’s state of mind at the time of the
transfer, or in this case, the attempted transfer.
Other courts also have emphasized the importance of considering the totality
of the circumstances and making common-sense inferences based on the evidence
when determining whether an adjustment under § 2K2.1(b)(5) is warranted. In
United States v. Caldwell, 448 F.3d 287, 292 (5th Cir. 2006), the court noted that
although “no direct evidence conclusively establishes [the defendant’s]
understanding of the future use of the firearms, the sentencing court is permitted to
make common-sense inferences from the circumstantial evidence.” In that case, the
defendant had sold guns—on the street and at a substantial markup—with
partially obliterated serial numbers to suspects “involved in narcotics trade.” Id. at
291. Similarly, the First Circuit upheld the application of the adjustment where the
defendant sold an assault rifle to an undercover government agent, considering
such factors as “the nature of the weapon, the clandestine nature of the sale,” and
the inflated price. United States v. Tavares, 427 F.3d 122, 125 (1st Cir. 2005). The
court also took notice of an intermediary’s statements suggesting that the buyer
was “ready to shoot” certain people he “got beef” with. Id. at 125-26.
Turning to the circumstances of this case, the district court did not commit
error in finding that Moody attempted to transfer the submachine gun with reason
to believe it would be used in another felony. First, the district court’s inference that
the weapon would probably wind up in the hands of gang members was sound.
Moody attempted to use a Gangster Disciple as a broker for the gun when he asked
Bullock to help him find a buyer. Moody also told Hinton he brought guns from
Mississippi to Chicago to sell them to gang members. And as far as Moody knew,
Hinton wanted the machine gun for “one of his guys.” Taken together, these facts
support the district court’s conclusion that Moody had reason to believe the machine
gun would end up in the hands of the Gangster Disciples, and as we noted in
Jemison, it would be naive of us to ignore the connection between “criminal violence
and street gangs.” 237 F.3d at 918.
No. 05-3927 Page 6
Second, the district court inferred from the nature of the weapon and the
proposed sale that no purchaser would want the machine gun for legal purposes.
We cannot quarrel with this common-sense appraisal, and it squares with the
absence of any requirement that the defendant had reason to believe that the gun
would be possessed or used in connection with a specific felony. See Inglese, 282
F.3d at 539; Jemison, 237 F.3d at 918. Moody argues that other scenarios—such as
a buyer using the machine gun for target practice—are equally likely, but the mere
existence of an alternative theory cannot support a finding of clear error. See
Howard, 454 F.3d at 703 (explaining that district court does not commit clear error
when it chooses “one of two permissible views of the evidence”).
III.
The totality of the circumstances—the link to the Gangster Disciples,
Moody’s statement to Hinton, the nature of the attempted sale, and the type of
weapon—support the district court’s finding that Moody had reason to believe that
the gun would be used for criminal purposes. Accordingly, we uphold the district
court’s application of § 2K2.1(b)(5).
AFFIRMED.