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United States v. Moody

United States Court of Appeals, Seventh Circuit

February 7, 2019

United States of America, Plaintiff-Appellee,
v.
Dandre Moody, Defendant-Appellant.

          Argued December 11, 2018

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15-CR-350 - John J. Tharp, Jr., Judge.

          Before Wood, Chief Judge, and Ripple and Barrett, Circuit Judges.

          BARRETT, CIRCUIT JUDGE.

         Within two days of helping his codefendants steal more than 100 guns from a train car, Dandre Moody sold 13 of them to anonymous buyers who telephoned him after they "heard about it." He pleaded guilty to possessing a firearm as a felon, 18 U.S.C. § 922(g)(1); possessing a stolen firearm, id. § 922(j); and cargo theft, id. § 659, for which he was sentenced to 93 months' imprisonment.

         Moody now appeals his sentence. He challenges, for the first time, a fourlevel guideline enhancement under U.S.S.G. § 2K2.1(b)(5) for trafficking firearms to people he knew (or had reason to know) were unlawful users or possessors.[1]

         We agree with Moody that the district court plainly erred by imposing this enhancement. Nothing in the record suggests that Moody had reason to believe that his buyers were unlawful gun users or possessors. By finding that Moody had such knowledge, the court plainly crossed the line that separates permissible commonsense inference from impermissible speculation. We therefore vacate the judgment and remand for further sentencing proceedings.

         I.

         One night in April 2015, Moody drove a train-theft crew to a railyard on the south side of Chicago. There, while part of the crew broke into a parked train car and stole 111 guns, Moody waited, ready to drive away with any merchandise that the crew might retrieve.

         Moody's share of the loot was 13 guns. Within two days, according to his uncontradicted testimony at his change-of-plea hearing, he sold them to different anonymous buyers who phoned him after they had "heard about it." Moody was not asked follow-up questions on the record about the nature of "it," and the presentence investigation report did nothing to further clarify what the callers had heard. Of the crew's stolen guns, 33 were recovered before sentencing-17 at crime scenes. The sentencing record does not, however, tie Moody to any of the recovered guns. Moody pleaded guilty to possessing a gun as a felon, possessing a stolen gun, and cargo theft.

         Sentencing followed. The district court began the sentencing hearing by confirming that Moody had reviewed the PSR's guidelines calculation (which included the enhancement at issue here, but not any factual detail on that point) with counsel, had filed no objections, and planned to make none. The court calculated an advisory Guidelines range of 121 to 151 months' imprisonment. In doing so, it applied three enhancements from the 2016 Guidelines Manual, including a four-level enhancement pursuant to 2K2.1(b)(5) because the offense involved trafficking in firearms. The court reasoned that this enhancement applied because Moody had sold his share of stolen guns "literally to anyone who called expressing an interest in getting" them, and the court presumed that at least several of these people would use them in future crimes. The court said that this conduct posed a danger to the community because "many [of the guns] have been recovered in Chicago, many of them at crime scenes." It continued:

I know, Mr. Moody, that you don't for a second believe that any of those folks were interested in lawfully possessing a firearm. There is absolutely no question that the people that were seeking to buy those firearms wanted those firearms to support other unlawful activity beyond their possession of the firearms. Whether it was drug trafficking, whether it was violent crime, whether it was burglary, robbery, that's who buys guns that have been stolen off a train.

         The court sentenced Moody to a prison term of 93 months, which was ...


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