Summary
The Ninth Circuit affirmed Christian Ferrari’s sentence for four counts of willfully dealing firearms without a license. The court held that the firearms-trafficking enhancement under U.S.S.G. § 2K2.1(b)(5) and Application Note 13 does not require the transferee actually to be an unlawful possessor or actually to intend unlawful use; it requires only that the defendant knew or had reason to believe that this was the case. The court also held that Ferrari preserved his challenge to the enhancement’s applicability for de novo review.
Topics
Practice areas
Questions Presented
- Whether Ferrari preserved his appellate claim that Application Note 13 to U.S.S.G. § 2K2.1(b)(5) requires the transferee actually to be an unlawful possessor or actually to intend to use or dispose of the firearm unlawfully.
- Whether Application Note 13 requires the transferee in fact to have been an unlawful possessor or to have intended to use or dispose of the firearm unlawfully, or instead requires only that the defendant knew or had reason to believe that the transferee had that status or intent.
- Whether the district court abused its discretion by applying the firearms-trafficking enhancement.
Holdings
- Ferrari preserved his claim because his argument shifted on appeal but his basic claim remained that the firearms-trafficking enhancement did not apply to him.
- Application Note 13 does not require that the transferee actually was an unlawful possessor or actually intended to use or dispose of the firearm unlawfully; it requires only that the defendant knew or had reason to believe that the transferee was an unlawful possessor or intended such unlawful use or disposition.
- The district court correctly interpreted Application Note 13 and did not abuse its discretion in applying the firearms-trafficking enhancement.
Key quotations
“The question presented is whether Application Note 13 requires that the person to whom the defendant transferred the firearm in fact was an unlawful possessor or intended to use the firearm unlawfully. We hold that it does not. Accordingly, we affirm.” (4)
“We agree with the Sixth, Seventh, and Eleventh Circuits that the plain text of Application Note 13 does not require it to be true that the transferee was an unlawful possessor or intended to use the firearm unlawfully. It only requires that the defendant “had reason to believe” that was the case.” (18)
“Because there is no reason to depart from the plain text, we hold that Application Note 13 to § 2K2.1(b)(5) of the 2021 United States Sentencing Guidelines does not require that what the defendant had reason to believe was true.” (28)
Factual background
Ferrari manufactured and sold unserialized privately made firearms without a federal firearms license. In four transactions, he sold undercover ATF agents 22 ghost AR-15-style rifles, including 20 unregistered short-barreled rifles, for cash in parking lots without documentation, background checks, or identification exchanges. The agents told Ferrari that the firearms would be used to protect marijuana grows and transported to Mexico, and Ferrari agreed to sell additional short-barreled rifles.
Procedural history
Ferrari pleaded guilty on January 29, 2024, to four counts under 18 U.S.C. § 922(a)(1)(A). The district court overruled his objection to the firearms-trafficking enhancement, applied a two-level downward departure, and sentenced him to 37 months. Ferrari timely appealed. The Ninth Circuit held that his claim was preserved, reviewed the Guidelines interpretation de novo, and affirmed.