United States v. Roberto Prieto

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-3070
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERTO PRIETO,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:21-CR-00452(1) — Harry D. Leinenweber, Judge.
____________________
ARGUED OCTOBER 3, 2023 — DECIDED OCTOBER 23, 2023
____________________
Before BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.
PER CURIAM. Roberto Prieto appeals his 120-month sen-
tence for unlawfully possessing firearms. In computing the
advisory Sentencing Guidelines range, the district court im-
posed two four-level enhancements: one for trafficking fire-
arms to a person whose possession of which Prieto knew or
had reason to believe would be unlawful, and another be-
cause his offense conduct involved eight firearms. Because the
2 No. 22-3070
sentencing record supports the district court’s application of
the enhancements, we affirm.
I. Background
Prieto, a convicted felon, sold firearms. During 2020 and
2021, Prieto arranged several firearms transactions to a confi-
dential source. Some transactions resulted in completed sales;
others did not.
The first transaction resulted in a completed sale, which
involved a shotgun and occurred on June 27, 2020. During this
transaction, the confidential source informed Prieto that he
was on parole and even suggested that he had outstanding
warrants.
The second transaction, however, did not result in a sale.
On July 18, 2020, Prieto texted the confidential source a pic-
ture of a Rugar pistol and offered to sell it for $800. In the
meantime, Prieto was arrested for a parole violation; thus, no
sale took place. Prieto remained incarcerated until May 2021.
After his release from prison, Prieto reinitiated contact
with the confidential source. On July 6, 2021, Prieto texted the
confidential source a picture of two Glock pistols, which he
offered to sell for $2,200. This sale, however, also did not hap-
pen because the pistols were transferred to someone else.
About a week later, Prieto sold two firearms to the confi-
dential source. And the following day, Prieto sold two more
firearms to the confidential source, who was accompanied by
an undercover agent. After the sale, law enforcement arrested
Prieto.
Prieto pleaded guilty to three counts of unlawfully pos-
sessing a firearm as a felon in violation of 19 U.S.C. § 922(g)(1).
No. 22-3070 3
The probation office prepared a presentence investigation
report (“PSR”) that recommended applying two four-level en-
hancements to Prieto’s base offense level. According to the
PSR, the first enhancement, U.S.S.G. § 2K2.1(b)(5), regarding
“trafficking” firearms, applied because Prieto transferred two
or more firearms to the confidential source and knew or had
reason to believe the confidential source was an individual
whose possession of the firearms would be unlawful. And the
second enhancement, U.S.S.G. § 2K2.1(b)(1)(B), regarding rel-
evant conduct, applied because Prieto’s conduct involved
eight firearms. The PSR also applied a two-level enhancement
for obstruction-of-justice. With these enhancements, the PSR
calculated Prieto’s total offense level at 29 and his criminal
history category at V, yielding a guidelines range of 140 to 175
months’ imprisonment.
At sentencing, Prieto contested the application of each en-
hancement. Regarding the firearms-trafficking enhancement
under § 2K2.1(b)(5), Prieto argued the government did not
prove that the confidential source actually was on parole, or
that he, Prieto, had reason to believe the source remained on
parole when he transferred multiple guns to the source in July
2021. As for the enhancement under § 2K2.1(b)(1)(B), Prieto
argued that he should not be held accountable for eight fire-
arms because—for three of them—he merely offered (but
failed) to sell them to the confidential source.
The district court rejected Prieto’s arguments regarding
the four-level enhancements. It concluded that the record
supported the enhancement for trafficking firearms because
Prieto believed that he was transferring firearms to a person
on parole. The court then found that Prieto’s conduct in-
volved eight firearms, deeming it “sufficient that he
4 No. 22-3070
indicate[d] that he has or will have possession of the specific
number of weapons.” (The court sustained Prieto’s objection
to the two-level enhancement for obstruction-of-justice.) Con-
sequently, the court determined that Prieto had a total offense
level of 27 and a criminal history category of V, resulting in a
guidelines range of 120–150 months. Ultimately, the court
sentenced Prieto to 120 months in prison.
II. Analysis
On appeal, Prieto renews his challenges to the application
of the four-level enhancements under §§ 2K2.1(b)(5) and
2K2.1(b)(1)(B). We review de novo the district court’s applica-
tion of the guidelines range calculation. United States v. Porraz,
943 F.3d 1099, 1102 (7th Cir. 2019). We review for clear error
the district court’s factual determinations underlying the ap-
plication of the Guidelines—specifically, the factual determi-
nation at issue here regarding the number of firearms in-
volved in an offense. United States v. Burnett, 37 F.4th 1235,
1239 (7th Cir. 2022). A district court need find only, by a pre-
ponderance of the evidence, that the facts are sufficient to sup-
port an enhancement. United States v. Griffin, 76 F.4th 724, 751
(7th Cir. 2023).
“When interpreting a specific provision of the sentencing
guidelines, we ‘begin with the text of the provision and the
plain meaning of the words in the text.’” United States v. Cook,
850 F.3d 328, 332 (7th Cir. 2017) (quoting United States v. Hill,
645 F.3d 900, 907–08 (7th Cir. 2011)).
A. Firearms Trafficking
Prieto contends that the district court erred in applying the
sentencing enhancement under § 2K2.1(b)(5), which provides
a four-level increase to the offense level “[i]f the defendant
No. 22-3070 5
engaged in the trafficking of firearms.” Application Note
13(A) to § 2K2.1(b)(5) clarifies that the firearms-trafficking en-
hancement applies if the defendant:
(i) transported, transferred, or otherwise
disposed of two or more firearms to an-
other 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 in-
dividual—
(I) whose possession or receipt of the
firearm would be unlawful; or
(II) who intended to use or dispose of
the firearm unlawfully.
Application Note 13(B) further states:
“Individual whose possession or receipt of the
firearm would be unlawful” means an individ-
ual who (i) has a prior conviction for a crime of
violence, a controlled substance offense, or a
misdemeanor crime of domestic violence; or (ii)
at the time of the offense was under a criminal
justice sentence, including probation, parole,
supervised release, imprisonment, work re-
lease, or escape status.
6 No. 22-3070
Prieto first argues that the government had to prove by a
preponderance of the evidence that the confidential source ac-
tually was on parole at the time. He relies on the Tenth Cir-
cuit’s opinion in United States v. Francis, 891 F.3d 888, 896–98
(10th Cir. 2018). Given the “reason to believe” language in the
application note, however, we agree with the government that
the confidential source need not actually be a prohibited per-
son. See, e.g., United States v. Henry, 819 F.3d 856, 870 (6th Cir.
2016) (“[T]he agent need not have actually been a felon for
§2K2.1(b)(5) to apply. The Guidelines merely require [the de-
fendant] to have ‘had reason to believe’ that [the transferee’s]
‘possession or receipt of the firearm would be unlawful.’”);
United States v. Fields, 608 Fed. App’x 806, 813 (11th Cir. 2015)
(holding that the guidelines only require that the defendant
had reason to believe that the transferee could not possess
firearms lawfully).
Prieto next maintains that he did not know or have reason
to believe that the confidential source was on parole during
the sale of multiple firearms. Prieto concedes he knew that the
confidential source was on parole during the firearm sale in
June 2020 but denies having reason to believe that the confi-
dential source remained on parole during the sales in July
2021, especially because the confidential source said nothing
further at the time about still being on parole. Thus, Prieto
contends, the district court erred in applying the firearms-
trafficking enhancement.
The record evidence here is sufficient to show that Prieto
“had reason to believe” the confidential source remained on
parole during the firearm sales in July 2021. Although the con-
fidential source did not reiterate his status as a parolee, noth-
ing in the record suggests that the source’s status may have
No. 22-3070 7
changed during the 13 months between the first and second
firearm sales. Indeed, each sale occurred in the same manner:
Prieto arranged cash transactions in exchange for firearms af-
ter texting about the transaction. And Prieto would have
known from his own firsthand experience with the criminal
justice system that terms of parole can span years. On these
facts, the district court did not err in applying the firearms-
trafficking enhancement under U.S.S.G. § 2K2.1(b)(5).
B. Number of Weapons
Prieto next argues that the district court erred in determin-
ing, for purposes of § 2K2.1(b)(1), that he trafficked eight fire-
arms instead of five. Section 2K2.1(b)(1) of the Sentencing
Guidelines provides incremental increases to a defendant’s
offense level based on the number of firearms associated with
his crimes of conviction (i.e., the higher the quantity of fire-
arms, the greater the offense level). As relevant here,
§ 2K2.1(b)(1) directs district courts to increase by four levels
the offense level of a defendant convicted of unlawful posses-
sion of a firearm if the offense involved 8 to 24 firearms. But if
the offense involved 3 to 7 firearms, the offense level only in-
creases by two levels.
Prieto concedes that his offenses involved five firearms but
argues that the government failed to produce sufficient evi-
dence to support a finding that eight firearms were involved
in his offenses. Specifically, he contends that the government
failed to prove he unlawfully sought to obtain the three fire-
arms that he offered (but failed) to sell to the confidential
source.
8 No. 22-3070
In determining the number of firearms, the court may con-
sider all firearms that were “involved in the same course of
conduct or common scheme or plan as the offense of convic-
tion.” United States v. Burnett, 37 F.4th 1235, 1238–39 (7th Cir.
2022). Application Note 5 to Subsection (b)(1) specifies that
“only those firearms that were unlawfully sought to be ob-
tained, unlawfully possessed, or unlawfully distributed”
should be counted for purposes of this Guideline.
Here, sufficient evidence in the record supports the find-
ing that Prieto’s offenses included the three firearms that he
offered (but failed) to sell to the confidential source. Prieto
sold the confidential source a firearm in June 2020. Prior to
that first sale, he texted the confidential source and sent pic-
tures of the firearm. Each firearm sale occurred in the same
manner: Prieto sent pictures of the firearms to the confidential
source and arranged a meeting to complete the sale. Prieto en-
gaged in this same course of conduct for the three firearms
that he ultimately did not sell to the confidential source. The
sales of the three firearms were not completed because of two
reasons: (1) Prieto was arrested before the sale of one of the
firearms was completed; (2) despite offering to sell two fire-
arms to the confidential source, those firearms were trans-
ferred to someone else. The evidence is more than sufficient
to infer Prieto sought to obtain these three firearms. On these
facts, the district court did not err in applying § 2K2.1(b)(1).
See United States v. Birk, 453 F.3d 893, 900 (7th Cir. 2006)
(“While the Guidelines caution against speculative findings,
they also emphasize the need to consider intended conduct as
well as completed conduct.” (quotation omitted)).
III. Conclusion
For these reasons, we affirm Prieto’s sentence.