7th Circuit: Man’s offense level for selling gun was properly increased

The 7th Circuit Court of Appeals Monday affirmed the 60-month sentence imposed on a convicted felon prohibited from possessing a gun who sold the weapon to a man who was also prohibited from possessing a gun. The judges held that the District Court properly increased Darnell Jackson’s offense level because he committed separate offenses.

Jackson took a Ruger pistol his friend purchased and sold it a couple weeks later to David Dircks, whom Jackson knew to be an illegal user of drugs. Jackson, Dircks and others were later indicted, with Jackson charged for unlawful possession of the pistol as a convicted felon. Jackson pleaded guilty to the charge without a written plea agreement. At sentencing, his offense level included a four-level enhancement under 2K2.1(b)(6)(B) for transferring the firearm “with knowledge, intent or reason to believe that it would be used or possessed in connection with another felony offense.”

The court found the transfer of the gun facilitated the commission of a felony by Dircks, whose gun possession was prohibited under federal law. Without the enhancement, Jackson’s sentencing range would have been 33-41 months.

Last year, in a nonprecedential decision, U.S.A. v. Jones, 528 F. App’x 627, 631-32 (7th Cir. 2013), the 7th Circuit concluded that the enhancement applies when a defendant guilty of being a felon-in-possession has transferred the firearm to another prohibited person. The court has now adopted the rationale in Jones as binding precedent.

Jones argued that his transfer of the pistol to Dircks wasn’t “another felony offense” separate and distinct from the possession offense, and so the enhancement shouldn’t apply. He argued that his conduct was “simply the firearms possession or trafficking offense” that would be excluded under the enhancement. He also claimed that had he been charged with possession and transfer of the pistol, the two charges would have been grouped at sentencing and treated as a single offense when calculating his offense level, so there would not be “another felony offense” to trigger the enhancement.

“If we were to agree with Jackson that a second conviction for transfer of the gun would take the section 2K2.1(b)(6)(B) enhancement off the table, then we would be saying that the Guidelines would, in practice, treat one’s unlawful possession and transfer of a firearm to another prohibited person no differently than simple possession of the gun. That would be both illogical and contrary to the spirit of the grouping rules,” Judge Ilana Diamond Rovner wrote in United States of America v. Darnell Jackson, 13-1496.

“By selling the Ruger pistol to Dircks, who like Jackson was prohibited from possessing a firearm, Jackson transferred the firearm in connection with a felony offense separate and distinct from the possession offense of which he was charged and convicted. Consequently, the district court properly increased Jackson’s offense level pursuant to section 2K2.1(b)(6)(B).”