United States v. Gary Busby

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 17-11525
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

GARY BUSBY,

Defendant - Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-211-1

Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

A jury convicted Gary Busby on one count of conspiracy to manufacture
firearms without a license, in violation of 18 U.S.C. §§ 371 and 922(a)(1)(A),
and four counts of structuring transactions to evade reporting requirements,
in violation of 31 U.S.C. § 5324(a)(3). The district court, inter alia, sentenced
Busby to 78-months’ imprisonment and entered a forfeiture money judgment
against him for $236,488. Busby challenges: his conviction for conspiracy to

*
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
May 27, 2020

Lyle W. Cayce
Clerk
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No. 17-11525
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manufacture firearms without a license, asserting the Government did not
provide sufficient evidence to establish a conspiracy; and the forfeiture money
judgment. (He does not contest his structuring convictions.)
Busby’s defense included his testimony. As he concedes, because he
failed to renew his motion for judgment of acquittal at the conclusion of all the
evidence, our review is only for plain error. United States v. Oti, 872 F.3d 678,
686 (5th Cir. 2017) (citation omitted). Under that standard, Busby must show
a forfeited plain error (clear or obvious error, rather than one subject to
reasonable dispute) that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the
discretion to correct such reversible plain error, but generally should do so only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id. “In the sufficiency of the evidence context, [our] court has
stated that it will reverse under plain[-]error review only if there is a ‘manifest
miscarriage of justice,’ which occurs only where ‘the record is devoid of evidence
pointing to guilt’ or the evidence is so tenuous that a conviction is ‘shocking.’”
Oti, 872 F.3d at 686 (quoting United States v. Delgado, 672 F.3d 320, 331 (5th
Cir. 2012) (en banc)).
To sustain a conviction for conspiracy to manufacture firearms without
a license, the Government was required to prove beyond a reasonable doubt:
(1) an agreement existed between Busby and at least one other person with the
specific intent for some member of the conspiracy to manufacture firearms
without a license; (2) Busby knew of the agreement’s unlawful objective; (3)
Busby voluntarily agreed to join the conspiracy; and (4) one or more members
of the conspiracy performed an overt act to further the conspiracy’s objective.
See United States v. Martinez, 921 F.3d 452, 467 (5th Cir.) (citations omitted),
cert. denied, 140 S. Ct. 571 (2019). In that regard, “an agreement may be
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inferred from concert of action, voluntary participation may be inferred from a
collection of circumstances, and knowledge may be inferred from surrounding
circumstances”. Id. at 467–68 (internal quotation marks and citation omitted).
Moreover, proving beyond a reasonable doubt that Busby had the
necessary intent to manufacture firearms without a license required the
Government’s showing: he lacked a license to manufacture firearms; and he
willfully engaged in the firearms-manufacturing business. See Bryan v. United
States, 524 U.S. 184, 187–89 & nn.2, 5–6 (1998) (citations omitted). To be
engaged in such business, Busby must have “devote[d] time, attention, and
labor to manufacturing firearms as a regular course of trade or business with
the principal objective of livelihood and profit through the sale or distribution
of the firearms manufactured”. 18 U.S.C. § 921(a)(21)(A).
Busby has not shown the requisite plain error. The record is not devoid
of evidence that he, and at least one other person, knowingly and voluntarily
agreed to manufacture firearms for profit, without a license, and performed
overt acts to further their conspiracy’s objective, even after learning that an
additional co -conspirator was not a government agent. Busby, therefore, has
not demonstrated his conviction resulted in the requisite “manifest
miscarriage of justice”. See Oti, 872 F.3d at 686 (citation omitted).
Busby has abandoned for failure to brief his challenge to the forfeiture
money judgment. See United States v. Scroggins, 599 F.3d 433, 446–47 (5th
Cir. 2010) (citations omitted). In any event, because Busby fails to
demonstrate plain error as to his conspiracy conviction, and asserts no other
reason why the forfeiture money judgment was improper, he fails to establish
a basis for vacating and remanding that judgment.
AFFIRMED.
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