United States District Court, N.D. Indiana
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
Defendant, Stephan Davis, pled guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. §
922(g)(1). The probation officer drafted a Presentence
Investigation Report (PSR) in preparation for sentencing.
This Opinion and Order resolves the Defendant's
objections to the PSR.
25, 2016, the Government filed an Indictment [ECF No. 16]
that charged the Defendant with being a felon in possession
of a firearm, pursuant to 18 U.S.C. § 922(g)(1). The
Defendant entered into a Plea Agreement [ECF No. 27] on
September 23, 2016. Then, on October 3, 2016, the Magistrate
Judge entered a Report and Recommendation [ECF No. 31], and
on October 20, 2016, this Court accepted the recommended
disposition and adjudged the Defendant guilty [ECF No. 32].
January 18, 2017, the probation officer issued the Final PSR
[ECF No. 39], which included a two-level enhancement,
pursuant to U.S.S.G. § 2K2.1(b)(4)(A), due to the
firearm in this case-a Walther P99c AS, .40 caliber
pistol-having been stolen. In the Addendum to the Final PSR
[ECF No. 40], the probation officer stated that she
“reviewed the above guideline and previously made
contact with the case agent who confirmed the store owner
reported the firearm stolen. As such, no revision was
made.” (Addendum to PSR 1, ECF No. 40.)
the Defendant filed a Sentencing Memorandum and Motion for
Downward Variance Pursuant to 18 U.S.C. § 3553(a) [ECF
No. 45] on March 8, 2017. In the Memorandum, the Defendant
renewed his objection to the § 2K2.1(b)(4)(A)
enhancement. Acknowledging that under United States v.
Schnell, 982 F.2d 219 (7th Cir. 1992), “scienter
is not required for the enhancement under U.S.S.G. §
2K2.1(b)(4)(A), ” the Defendant nevertheless argued
On the date in question, Mr. Davis was married to Amanda
(Williamson) Davis, with whom he resided at 203 South Main
Street, Apt. C, Kendalville, Indiana. This residence is an
apartment above Ms. Davis' father's firearms
store-Ammo & Gun Supply. In March, 2016, prior to her
marriage to Mr. Davis, Ms. Davis was employed by her father,
Greg Williamson, as a clerk at the store. It was understood
by Mr. Davis that Ms. Davis was permitted to remove and use
firearms from the store. It was under this arrangement that
the firearm came into his possession.
It is important to note that the firearm was not reported
stolen until June 10, 2016, after law enforcement officers
contacted Mr. Williamson. At that point, according to
reports, he conducted an inventory and found the firearm,
along with two (2) others, were missing.
(Def.'s Sentencing Mem. 1-2, ECF No. 45.) The Government
reiterated its position that the § 2K2.1(b)(4)(A)
enhancement was appropriately applied because the gun was
stolen, regardless of the Defendant's knowledge.
(Gov't's Sentencing Mem. 2-3, ECF No. 46.)
conviction under 18 U.S.C. § 922(g)(1), the Guidelines
add 2 points to a defendant's offense level “if any
firearm . . . was stolen.” U.S.S.G. §
2K2.1(b)(4)(A). Application Note 8(B) states that
“Subsection (b)(4) applies regardless of whether the
defendant knew or had reason to believe that the firearm was
stolen or had an altered or obliterated serial number.”
The Seventh Circuit has held that it was the intent of the
Guidelines' drafters “to omit the element of
mens rea in § 2K2.1(b)(4), ” and that the
omission of a scienter requirement “does not violate
due process.” Schnell, 982 F.2d at 220-22. The
evidence must only “establish by a preponderance of the
evidence” that the firearm in question was stolen.
United States v. Sanchez, 507 F.3d 532, 539 (7th
Cir. 2007) (citing United States v. Birk, 453 F.3d
893, 899 (7th Cir. 2006)).
Defendant challenges that the “firearm was stolen at
the time he possessed it.” (Def.'s Sentencing Mem.
2.) He argues that his ex-wife worked for her father at the
latter's gun store and was permitted by her father
“to remove and use firearms from the store, ”
which is how the firearm came into his possession.
(Id. 1-2.) The firearm was not reported stolen until
June 10, 2016, which was after the Defendant was arrested and
indicted. The Defendant argues that these facts show that the
firearm was not stolen. The Government counters by stating
that “the gun store owner filed a theft report for the
firearm in question with the Kendallville Police
Department” in which he stated that the Defendant's
“wife did not have permission to remove and use
firearms from the gun store.” (Gov't's
Sentencing Mem. 2.) “The gun store owner filed this
report, knowing that the firearm had been found in the
possession of the [Defendant].” (Id.) The
reason that the report was filed after the Defendant's
arrest and indictment was that the gun store owner
“realized that the gun recovered from [the Defendant]
was missing from his store along with two other”
firearms only after “ATF asked” him to conduct an
inventory. (Id. 2-3.)
“the language of the guideline should not be stretched
even further to situations where the gun was never really
stolen to begin with, ” United States v.
Richardson, 309 F.Supp.2d 1093, 1096 (E.D. Wis. 2004),
the facts in the PSR clearly show that the firearm in this
case was stolen. The gun store owner's filing of a police
report, after he discovered that the firearm was missing from
his inventory, is evidence that the Defendant's ex-wife
did not have permission to possess the firearm. That, in
turn, shows that the firearm was stolen at the time that he
possessed it. Accordingly, the Court finds that the
Government has established by ...