from the United States District Court for the Northern
District of Texas
STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges.
WILLETT, Circuit Judge
National Firearms Act criminalizes possession of certain
unregistered firearms, including silencers and
"destructive devices" like grenades. And sentences
for such crimes may be enhanced based on the number of
devices involved. But what if most of the devices, despite a
defendant's best efforts, are incapable of causing
destruction-harmless rather than harmful?
case, Victor Maturino tried to buy 144 live grenades (plus
other firearms) for a Mexican drug cartel, but 143 were
inert. The district court, quoting Sentencing Guidelines
commentary, imposed an eight-level enhancement based on the
number of grenades "sought to be obtained." On
appeal, Maturino argues that his sentence should reflect what
he bought (one live grenade) not what he
sought (twelve dozen of them). We disagree.
Maturino's plan to stockpile live grenades turned out to
be a dud, but the sentencing court properly considered what
he pursued, not what he possessed.
The Sting Operation
Maturino told a DEA confidential source and an undercover ATF
agent that he wanted to buy "as many real live
grenades" as possible for a "cartel war" in
Mexico. Maturino delivered a $3, 000 cash down payment for
144 M433 high-explosive, 40-millimeter grenades and a
9-millimeter Beretta pistol equipped with a
later met with the source and another undercover ATF agent to
seal the deal. Maturino handed over a bag containing $35, 000
cash and took possession of two cases, each containing what
he believed to be 72 live grenades, plus the Beretta and
silencer. Maturino loaded the items into his trunk and was
to Maturino, only one grenade was live; the remaining 143
The Indictment and Sentencing Filings
was indicted for possession of an unregistered silencer and
possession of an unregistered destructive device (the single
live grenade)- both violations of 26 U.S.C. §
5861(d). Maturino pleaded guilty and signed a
factual resume detailing the firearms negotiations and
stipulating that he requested "as many real live
grenades as the [confidential source] could acquire."
The factual resume covered all the offense elements, and
Maturino admitted he knowingly and unlawfully possessed
unregistered firearms (the silencer and live grenade) and
took possession of the two cases of grenades "expecting
them all to be 'live.'"
pre-sentence report (PSR) assigned a total offense level of
31, including an eight-level enhancement under Guidelines
§ 2K2.1(b)(1)(D) since the offense involved between 100
and 199 firearms: 144 grenades plus the
silencer. Additional enhancements, and
Maturino's criminal history category of I, produced an
imprisonment range of 108 to 135 months. Maturino objected to
the eight-level enhancement, arguing that only the silencer
and the single live grenade constituted
"firearms"-not the 143 duds. The Government
defended the enhancement: Maturino "sought to unlawfully
obtain two cases of 'live' grenades"-144
total-and Application Note 5 to § 2K2.1(b)(1)
specifically instructs courts to consider the number of
firearms "unlawfully sought to be obtained."
Government filed a PSR addendum stating that conduct relevant
to sentencing is not limited to what is charged in the
indictment or agreed to in the factual resume. The addendum
reurged that Application Note 5 allows a sentencing court to
count those firearms "unlawfully sought to be obtained,
" and that Maturino agreed to purchase 144
grenades-specifically telling undercover agents he wanted
"as many real live grenades" as possible.
again objected, reiterating that Application Note 5 was
inapplicable. An inert grenade, he repeated, is not a
"destructive device" under § 2K2.1 and thus
cannot be considered "relevant conduct" for
C. The Sentencing Hearing and Statement of
sentencing hearing, the Government reiterated that the
sentence calculation should consider intended conduct, not
just completed conduct. The district court agreed and adopted
without change the findings and conclusions of the PSR and
addendum: an offense level of 31 with a resulting
imprisonment range of 108 to 135 months. The court then
entered a 120-month sentence based, in part, on the number of
live grenades "sought to be obtained."
concluding the sentencing hearing, the district court stated:
Even if I'm wrong as to these objections, this is the
sentence I otherwise would impose because I believe this
specific sentence fulfills the 3553(a) factors. Given the
seriousness of the offense of conviction, the large quantity
of hand grenades that were sought to be obtained, it is
important, in my view, that the sentence be sufficient to
afford deterrents [sic] to others as well as provide just
punishment in this case and therefore a sentence of 10 years
is what I believe to be appropriate.
the hearing, the district court entered its Statement of
Reasons (SOR) explaining its adoption of the PSR
recommendations and noting that a 120-month sentence was
within the Guidelines range. The court repeated that even if
its Guidelines calculations were incorrect, 120 months was
the sentence it would "otherwise impose under 18 U.S.C.
§ 3553." Maturino timely appealed.
makes four arguments, but we need only reach the first two:
1. The district court improperly imposed an eight-level
enhancement under § 2K2.1(b)(1)(D).
2. The application of enhancements under both subsections
(b)(1)(D) and (b)(3)(B) amounts to impermissible double
counting under the Double Jeopardy Clause.
3. Because the district court improperly enhanced his
sentence under § 2K2.1(b)(1)(D), it imposed an
"above-Guidelines sentence" but failed to provide a
sufficient justification for this "alternative
4. The district court's Statement of Reasons is
inconsistent with the court's oral pronouncements at the
The Eight-Level Enhancement under §
Maturino's foremost objection. He preserved error below,
so we review the district court's fact findings for clear
error and its application of the Guidelines de
contends that § 2K2.1(b)(1)(D) applies only when at
least 100 firearms are involved. He insists he possessed just
two firearms-one live grenade and a silencer-because
the 143 inert grenades were not destructive. And if they were
not destructive, they ...