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United States v. Fries

United States District Court, N.D. Indiana, Fort Wayne Division

May 16, 2017




         The Defendant, Christopher Fries, pled guilty to possessing an unregistered firearm in violation of 26 U.S.C. § 5861(d). The probation officer drafted a Presentence Investigation Report (PSIR) in preparation for sentencing. This Opinion and Order resolves the Defendant's objections to the PSIR.


         The Defendant is a convicted felon. (PSIR ¶ 12.) A confidential informant (CI) advised ATF agents that the Defendant was selling firearms, prescription pills, and marijuana. (Id. ¶ 11.) Controlled buys between the CI and the Defendant were conducted on four occasions in 2015: September 22, October 8, October 23, and November 24. (Id. ¶¶ 13-23.) A fifth controlled buy took place on January 16, 2016. (Id. ¶¶ 24-25.) The CI purchased one firearm on each of the five occasions, these being a Savage Shotgun with an overall length of less than 26 inches and a barrel length of less than 18 inches, an FIE pistol, Canik pistol, SB Firearm LLC (Schroeder Bauman) pistol, and a Glock pistol, which had been reported stolen. For Guideline calculation purposes, the probation officer noted that the Defendant possessed at least three additional firearms, for a total of at least eight firearms. (Id. ¶ 28.) The following excerpt from the PSIR contains the factual support for the additional firearms:

On October 8, 2015, the defendant is observed wearing a pistol on his person. He showed the CI this pistol while conducting the sale of the PIE .380 pistol, and the CI noted it was a Springfield .45 caliber pistol with an extended magazine. On January 19, 2016, the defendant advised the CI that he sold this Springfield .45 caliber pistol to another individual. On January 14, 2016, the defendant, in a recorded telephone conversation with the CI, discussed his possession of a firearm with a selector switch. The defendant described that the selector switch cost over $1, 500.00 and that he has put over $5, 000.00 into the firearm. On January 19, 2016, the defendant told the CI that he had a SKS/AK rifle with a shotgun stock. On October 23, 2015, the defendant stated to the CI that he had over 250 firearms in his basement.


         The PSIR relied on § 2K2.1 of the United States Sentencing Guidelines to set the base offense level at 20 for the Defendant's violation of 26 U.S.C. § 5861(d). Four separate enhancements were applied to raise the total offense level to 30. The probation officer added 4 levels because the offense involve between 8 and 24 firearms. (PSIR ¶ 38 (citing U.S.S.G. § 2K2.1(b)(1)(B) (requiring a 4-level increase for between 8 and 24 firearms).) Because one of the firearms was stolen, § 2K2.1(b)(4)(A) required a 2-level increase in the base offense level. (PSIR ¶ 30 (noting that “the Glock model 21 pistol sold on January 19, 2016, was reported stolen on June 24, 2015”; ¶ 39 (adding 2 levels).) Finally, the PSIR included a 4-level enhancement to the base offense level on grounds that the Defendant possessed the firearm in connection with another felony. See U.S.S.G. § 2K2.1(b)(6)(B) (providing for increase in base offense level if the defendant used or possessed any firearm “in connection with another felony offense”). The probation officer's basis for applying this enhancement is set forth in paragraph 30, and cites the 10 morphine pills that the Defendant sold to the CI during the October 8, 2015, controlled buy. (PSIR ¶ 30 (“The [D]efendant was wearing a .45 caliber pistol on his person during the transaction, and he also showed the CI this pistol.”).)

         After taking into account the Defendant's acceptance of responsibility adjustment, the total offense level is 27. This offense level, when combined with the Defendant's criminal history category of I, yields a Guideline range of 70 to 87 months of imprisonment. The Defendant objects to each of the enhancements, and argues that his total offense level should be 19. The Guideline range would then be 30 to 37 months of imprisonment.


         When sentencing a defendant, the district court “must first calculate the Guidelines range, and then consider what sentence is appropriate for the individual defendant in light of the statutory sentencing factors, 18 U.S.C. § 3553(a).” Nelson v. United States, 555 U.S. 350, 351 (2009); see United States v. Panice, 598 F.3d 426, 441 (7th Cir. 2010) (citing Nelson, and setting forth the two-step process that a sentencing court must engage in to determine a defendant's sentence). This Opinion and Order is intended to resolve the issues related to the first step, calculation of the Guidelines range.

         Facts relevant to sentencing should be proved by a preponderance of the evidence. United States v. England, 555 F.3d 616, 622 (7th Cir. 2009); see also United States v. Krieger, 628 F.3d 857, 862 (7th Cir. 2010) (advising that sentencing factors that do not increase the defendant's sentence beyond the statutory range may be found by the court at sentencing by a preponderance of the evidence). “A proposition proved by a preponderance of the evidence is one that has been shown to be more likely than not.” United States v. Davis, 682 F.3d 596, 612 (7th Cir. 2012). The Federal Rules of Evidence do not apply to sentencing, United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005), and a court may rely on hearsay as long as the information “has sufficient indicia of reliability to support its probable accuracy, ” United States v. Rollins, 544 F.3d 820, 838 (7th Cir. 2008) (citation and quotation marks omitted); see also United States v. Bradley, 628 F.3d 394, 400 (7th Cir. 2010) (“Sentencing judges necessarily have ‘discretion to draw conclusions about the testimony given and evidence introduced at sentencing, ' but ‘due process requires that sentencing determinations be based on reliable evidence, not speculation or unfounded allegations.'”) (quoting England, 555 F.3d at 622). As such, “[a] district court may rely on facts asserted in the PSR if the PSR is based on sufficiently reliable information.” Rollins, 544 F.3d at 838. “The defendant bears the burden of proving that the PSR is inaccurate or unreliable, ” and if he offers no evidence to question the PSR's accuracy, the court may rely on it. Id. However, it is the Government's burden to prove by a preponderance of the evidence that an enhancement applies. United States v. Hines, 449 F.3d 808, 815 (7th Cir. 2006); United States v. Foutris, 966 F.2d 1158, 1160 (7th Cir. 1992).

         A. Section 2K2.1(b)(1) Enhancement for Number of Firearms Involved

         As mentioned above, the PSIR includes a two-level enhancement based on the probation officer's finding that more than eight firearms were involved. The Defendant objects to any inclusion in the PSIR of firearms that were not named in the Indictment. Specifically, he objects to any mention of the .45 caliber pistol (Springfield) detailed in paragraph 18, and also discussed in paragraphs 25 and 28, and to discussion of Controlled Buy #4, as described in paragraphs 21-23. He asserts that only four firearms were delineated by way of indictment and maintains that even if the Springfield that the CI observed and the firearm from Controlled Buy #4 are considered, the total number of firearms is still only six.

         Pursuant to U.S.S.G § 1B1.3, the base offense level and specific offense characteristics shall be determined on the basis of “all acts and omissions, committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant” and “that occurred during the commission of the offense of conviction.” For offenses that would have been grouped together, like those here, the court is to consider the acts or omissions “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S.S.G. § 1B1.3(a)(2). For purposes of calculating the number if firearms under § ...

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