United States of America v. Eric Wagner

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1644
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
E RIC W AGNER ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 05 CR 50043—Philip G. Reinhard, Judge.
____________
A RGUED S EPTEMBER 21, 2006—D ECIDED N OVEMBER 7, 2006
____________
Before B AUER , C UDAHY , and W OOD , Circuit Judges.
B AUER , Circuit Judge. Eric Wagner was charged with
eight counts of selling a firearm to a convicted felon in
violation of 18 U.S.C. § 922(d)(1) and eight counts of
distributing marijuana in violation of 21 U.S.C. § 841(a)(1).
On October 20, 2005, Wagner pleaded guilty to one count of
selling a firearm to a convicted felon and one count of
distributing marijuana. The remaining counts were dis-
missed. The district court sentenced Wagner to 30 months
imprisonment. In this appeal, Wagner contends that the
district court erred when it found that he had transferred
a firearm with knowledge, intent, or reason to believe that
it would be used or possessed in connection with another
felony offense and increased his offense level by four levels
pursuant to United States Sentencing Guideline
§ 2K2.1(b)(5). We affirm.

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2 No. 06-1644
1 Under the sentencing guidelines, an offense level of 15 corre-
sponds to a sentencing range of 18 to 24 months imprisonment,
while an offense level total of 19 corresponds to a sentencing
range of 30 to 37 months imprisonment.
I. Background
Wagner worked at Wagner Hunting and Fishing Supplies
in Freeport, Illinois. Wagner admits that on eight separate
occasions he sold firearms to a confidential informant (“CI”)
who he knew had been convicted of a felony. These transac-
tions occurred between November 23, 2004 and April 22,
2005. In addition to selling the CI nine firearms, Wagner
sold marijuana to the CI and Special Agent (“SA”) Richard-
son of the Bureau of Alcohol, Tobacco, Firearms & Explo-
sives.
Wagner and the government entered into a plea agree-
ment, and the parties agreed that (1) the base offense level
was 14 pursuant to U.S.S.G. § 2K2.1(a)(6)(b) because the
defendant violated 18 U.S.C. § 922(d); (2) the base of-
fense level increased four levels pursuant to U.S.S.G.
§ 2K2.1(b)(1)(b) because the offense involved between 8 and
24 firearms; and (3) a three-level reduction was applicable
pursuant to U.S.S.G. §§ 3E1.1(a) and (b) because the
defendant had accepted responsibility and timely expressed
his intent to enter a plea of guilty. However, the United
States also pursued the application of a four-level enhance-
ment pursuant to U.S.S.G. § 2K2.1(b)(5), claiming that
Wagner transferred a firearm with knowledge or reason to
believe that it would be used or possessed in connection
with another felony offense. Wagner requested a total
offense level of 15 and reserved the right to challenge the
§ 2K2.1(b)(5) enhancement at sentencing. 1
The district court ordered that a Presentence Investiga-
tion Report (“PSR”) be prepared prior to Wagner’s sentenc-
ing hearing. The PSR’s calculations were consistent with
those contained in the plea agreement. However, the PSR

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No. 06-1644 3
concluded that there was insufficient evidence to apply
the four-level enhancement pursuant to § 2K2.1(b)(5).
At the sentencing hearing on February 3, 2006, the
government called SA Richardson to testify regarding
transactions that took place on December 16, 2004, Febru-
ary 23, 2005, and March 9, 2005. During these transactions,
the CI purchased firearms from Wagner while wearing a
concealed recording device. The government also introduced
partial recordings and transcripts from these transactions.
The transcript of the December 16, 2004 firearm transac-
tion indicates that the CI said to Wagner, “I file the num-
bers off when I get rid of ’em.” SA Richardson testified that
Wagner then nodded his head in agreement. On this same
day, the CI told Wagner that he “made eighty bucks from
that last one.” Wagner responded by asking the CI, “What
are ya doin’? Sellin’ ’em on the street?”
The transcripts from February 23, 2005 indicate that
the CI had told Wagner that he knew a drug dealer in
Rockford who wanted “a couple of nines just to watch his
shit” and that the drug dealer was going to give the CI “an
ounce of coke for it.” SA Richardson testified that he had
observed Wagner nodding his head in agreement when
the CI told Wagner that he was going to exchange the
gun for an ounce of cocaine. The March 9, 2005 tran-
script indicates that the CI told Wagner that a drug dealer
asked him, “can you get me another [gun with laser] . . .
I got another boy selling some shit who would sure like
to have one, too.” On each of these occasions, Wagner sold
the CI a firearm after the CI made the statements.
At the sentencing hearing, SA Richardson testified that
the CI and Wagner knew each other prior to the inves-
tigation and that the government had been concerned
with an entrapment defense. SA Richardson testified
that he had instructed the CI to tell Wagner that he was
filing the serial numbers off of the firearms and trading the

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4 No. 06-1644
firearms for narcotics with drug dealers. These statements
were intended “to show that the firearms weren’t going to
be just for him, to show that the CI was reselling the
firearms to other individuals, to show that it wasn’t just a
friend doing a friend a favor to buy a gun.” SA Richardson
also testified that he had instructed the CI to make these
statements to avoid raising Wagner’s suspicion as to why
the CI was purchasing multiple similar handguns.
SA Richardson also testified that when he first spoke with
the CI, the CI had informed him that he had purchased
firearms previously from both Wagner and Wagner’s father.
SA Richardson asserted that in addition to avoiding an
entrapment defense, the government continued to purchase
firearms to determine if Wagner’s father, the owner and
licensee of the store, was involved in the sale of firearms to
prohibited persons. SA Richardson also acknowledged that
he knew of the sentencing enhancements for selling eight or
more firearms to a convicted felon and for transferring a
firearm with reason to believe that it would be used in
another felony offense. SA Richardson testified that when
he conducts an investigation, especially of individuals
working out of a federal firearms business, in addition to
obtaining sufficient evidence to convict, his motive is to
secure the highest possible sentence.
After SA Richardson finished testifying, Wagner called
the CI as a witness. The CI testified that it was his under-
standing that SA Richardson had instructed him to make
the statements to increase Wagner’s sentence. The CI
believed that Wagner had heard or understood him when he
made the different statements but did not seem to care
what the CI did with the guns. The CI testified that Wag-
ner’s primary concern was to complete each transaction by
filling out the necessary paperwork, collecting the money,
and giving him the gun.
After hearing the recordings, reading the transcripts, and
listening to the testimony from SA Richardson and the CI,

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No. 06-1644 5
the district court held that there was sufficient evidence to
apply a four-level enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(5). The district court also found that the conduct
of the government was not sentencing manipulation. But
the district court judge cautioned “If I felt— and I want to
emphasize this to the law enforcement—if I felt that there
was sentencing enhancement investigations on a regular
basis, I would not allow it. Not in my court.” The district
court calculated the total offense level to be 19 and sen-
tenced Wagner to 30 months imprisonment, followed by 30
months of supervised release. The court also ordered
Wagner to pay a special assessment of $200 and a fine of
$25,000. This timely appeal followed.
II. Discussion
Wagner contends that the district court erred in applying
the U.S.S.G. § 2K2.1(b)(5) enhancement for two reasons: (1)
the evidence at sentencing was insufficient to establish that
he transferred a firearm with knowledge, intent, or reason
to believe that the firearm would be used or possessed in
connection with another felony offense; and (2) the govern-
ment engaged in sentence manipulation by programming
the CI to make certain statements while purchasing
firearms from the defendant in an effort to enhance his
sentence.
A. Wagner’s Knowledge of the Intended Use for the
Firearms
We review the district court’s application of sentencing
guidelines de novo, but where the district court bases the
application of a sentencing guideline on factual findings, we
review for clear error. United States v. Messino, 55 F.3d
1241, 1247 (7th Cir. 1995). A factual determination
is clearly erroneous only if, after considering all of the

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6 No. 06-1644
evidence, the reviewing court is left with the firm conviction
that a mistake has been made. Id. Where there are two
permissible inferences from the evidence, the district court’s
choice between them cannot be clearly erroneous. United
States v. Wyatt, 102 F.3d 241, 246 (7th Cir. 1996).
Sentencing Guideline § 2K2.1(b)(5) provides, in pertinent
part: “If the defendant . . . transferred any firearm . . . with
knowledge, intent, or reason to believe that it would be used
or possessed in connection with another felony offense,
increase [the offense level] by 4 levels.” Whether a defen-
dant had reason to believe a firearm would be used or
possessed in connection with another felony is a factual
determination reviewed for clear error. United States v.
Inglese, 282 F.3d 528, 539 (7th Cir. 2002). Where the
defendant protests the application of § 2K2.1(b)(5), the
government bears the burden of proving by a preponderance
of the evidence that the enhancement is applicable. United
States v. Fourtis, 966 F.2d 1158, 1160 (7th Cir. 1992).
Wagner first argues that the evidence does not estab-
lish that he heard, understood, or believed the unsolicited
statements made by the CI, and therefore, he did not have
the knowledge, intent, or reason to believe that the firearms
would be used or possessed in connection with another
felony offense. Wagner contends that: (1) the background
noise in the store made it difficult for Wagner to hear or
understand the CI’s statements; (2) SA Richardson was not
always present or standing next to the CI during the
conversations and therefore cannot accurately testify as to
what Wagner heard or understood; and (3) Wagner did not
believe the CI was someone who would remove serial
numbers or frequent drug houses. Additionally, Wagner
argues that because he never altered his behavior in selling
the firearms after the CI made the statements to him, he
did not hear, understand or believe the statements made by

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No. 06-1644 7
2 For example, on February 23, 2005, the CI told Wagner that the
drug dealer needed a couple of nine millimeter guns. Instead of
acknowledging the CI’s statement and selling him a nine millime-
ter handgun, Wagner sold the CI a .380 caliber handgun.
the CI. 2
The district court based its factual findings on the
testimony of SA Richardson and the CI, together with the
transcripts of tape recorded conversations presented at
the sentencing hearing. The district court found by a
preponderance of the evidence that Wagner heard the CI
tell him that (1) he was filing the serial numbers off of the
guns, (2) he was obtaining the guns for a drug dealer
operating crack houses in exchange for cocaine, and (3) the
drug dealer knew another individual selling drugs that also
wanted a gun with a laser. Based upon the evidence
presented at sentencing, it was not clearly erroneous for the
district court to find that Wagner heard the state-
ments made by the CI.
Wagner argues that even had he heard the statements
made by the CI, he had no reason to believe that the CI was
telling the truth. However, we agree with the district court
that the inquiry made by Wagner on December 16, 2004
about selling the guns on the street, taken in context with
his other conversations with the CI, indicates that Wagner
did have reason to believe that the serial numbers were
being removed and that the firearms were being resold by
the CI to drug dealers. Because the district court’s factual
determinations are supported by the record and not clearly
erroneous, we affirm the district court’s application of the
four-level sentencing enhancement pursuant to U.S.S.G.
§ 2K2.1(b)(5).

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8 No. 06-1644
B. Sentence Manipulation
A claim of sentencing manipulation “is distinct from a
claim of sentencing entrapment[,] which occurs when the
government causes a defendant initially predisposed to
commit a lesser crime to commit a more serious offense.”
United States v. Garcia, 79 F.3d 74, 75 (7th Cir. 1996). “The
doctrine of sentencing manipulation states that a judge
cannot use evidence to enhance a defendant’s sentence if
the government procured the evidence through outrageous
conduct solely for the purpose of increasing the defendant’s
sentence under the Sentencing Guidelines.” United States
v. Messino, 55 F.3d at 1256. However, there is no defense of
sentencing manipulation in this circuit. Garcia, 79 F.3d at
76. It is within the discretion of law enforcement to decide
whether delaying the arrest of the suspect will help ensnare
co-conspirators, give the law enforcement greater under-
standing of the nature of the criminal enterprise, or allow
the suspect enough “rope to hang himself.” Id.
Wagner argues that the government engaged in sentenc-
ing manipulation by programming the CI to make cer-
tain statements that Wagner had no reason to believe
and had no effect on his actions. We disagree. Although SA
Richardson admitted that the government’s decisions to
prolong the investigation and direct the CI to make cer-
tain statements to Wagner were motivated in part by the
desire to increase his sentence, this was not the govern-
ment’s sole purpose. The record is clear that the govern-
ment was investigating the sale of guns to prohibited
persons. We agree with the district court that the govern-
ment had the right to fully investigate whether others
in the store were involved and the extent of Wagner’s
criminal activity, including whether he was selling the
firearms with reason to believe that the guns would be used
or possessed in connection with another felony or whether
he continued to sell the firearms out of friendship.
Wagner had the opportunity to refuse to sell the CI
firearms but failed to do so. Similar to the Garcia case, the

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No. 06-1644 9
government is not the cause of the predicament in which
Wagner finds himself; he is.
III. Conclusion
Accordingly, the sentence of the district court is
A FFIRMED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-7-06

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