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United States v. Maturino

United States Court of Appeals, Fifth Circuit

April 12, 2018

VICTOR MATURINO, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Texas

          Before STEWART, Chief Judge, and HAYNES and WILLETT, Circuit Judges.

          DON R. WILLETT, Circuit Judge

         The 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?

         In this 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.

         We AFFIRM.

         I. Background

         A. The Sting Operation

         Victor 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 silencer.[1]

         Maturino 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 promptly arrested.

         Unbeknownst to Maturino, only one grenade was live; the remaining 143 were inert.

         B. The Indictment and Sentencing Filings

         Maturino 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).[2] 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.'"

         The 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.[3] 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."

         The 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.[4] 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.

         Maturino 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 sentencing.

          C. The Sentencing Hearing and Statement of Reasons

         At the 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."

         In 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.[5]

         After 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.

         II. Discussion

         Maturino 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 sentence."[6]
4. The district court's Statement of Reasons is inconsistent with the court's oral pronouncements at the sentencing hearing.

         A. The Eight-Level Enhancement under § 2K2.1(b)(1)(D)

         This is 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 novo.[7]

         Maturino 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 ...

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