Joseph H. Gay, Jr., Assistant U.S. Attorney, Ellen A. Lockwood, Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff-Appellee.
Robert Victor Garcia, Jr., Esq., Odessa, TX, for Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas.
Before STEWART, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
CARL E. STEWART, Chief Judge:
Defendant-Appellant Victor Hagman, III (" Hagman" ) challenges his sentence on the grounds that the district court erroneously calculated his base offense level. Hagman pleaded guilty to a two-count indictment that charged him with being a felon in possession of one firearm and with possessing and bartering one stolen firearm. At sentencing, the district court applied a four-level enhancement pursuant to United States Sentencing Guidelines (" U.S.S.G." ) § 2K2.1(b)(1)(B), noting that relevant conduct dictated that Hagman bartered between eight and twenty-four firearms. We conclude that this enhancement was applied erroneously. Accordingly, we VACATE Hagman's sentence and REMAND for resentencing.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hagman, a convicted felon, was an employee of Unkle Dick's Gunsmith Services (" Unkle Dick's" ) which was owned by Richard Stallcup (" Stallcup" ). Hagman alleges that sometime in April 2012, he borrowed a Titan FIE pistol from Unkle Dick's to loan to a friend who needed protection from an abusive ex-boyfriend. After being out of town and away from his store for a few days, Stallcup returned on April 15, 2012, and discovered what he described as " forced entry" into the backdoor of Unkle Dick's. Initially, Stallcup did not notice any missing merchandise. Several days later he realized that a total of twelve firearms were unaccounted for. Stallcup reported the burglary to the police and mentioned that he suspected that his employee, Hagman, played a role in the taking of the firearms. After Stallcup told Hagman that Unkle Dick's had been burglarized, Hagman returned the Titan FIE pistol and claimed to have borrowed it prior to the burglary.
Hagman told Stallcup that he made some inquiries " in the streets" and had information about who had the missing firearms. Hagman warned Stallcup that if the police were to become involved, the firearms would likely never be recovered. Hagman explained that he could help retrieve the missing merchandise but the people who allegedly had the firearms required that Stallcup pay $150 for each of them. Stallcup instructed Hagman to do whatever it took to get the firearms back. Hagman attempted to arrange a transaction between Stallcup and a man who had possession of some of the firearms but was ultimately unable to procure any of them.
In May 2012, a federal grand jury indicted Hagman for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and possessing and bartering a stolen firearm in violation of 18 U.S.C. § 922(j). Count one of the indictment states in relevant part that Hagman:
who having been convicted of a crime punishable by imprisonment for a term exceeding one year ... did knowingly possess in and affecting commerce a firearm, to wit: a Titan FIE pistol, which had been shipped and transported in interstate and foreign commerce. All in violation of Title 18, United States Code, Section 922(g)(1).
Count two of the indictment states in relevant part that Hagman:
knowingly posses[ed] and barter[ed] in and affecting commerce a firearm, to wit: a Titan FIE pistol, which had been shipped and transported in interstate and foreign commerce, knowing and having reasonable cause to believe it was stolen. All in violation of Title 18, United States Code, Section 922(j).
In addition to the indictment, the government filed a factual basis for Hagman's plea that was ...