from the United States District Court for the District of
Colorado (D.C. No. 1:16-CR-00068-WJM-1)
R. Rasch-Chabot, Assistant Federal Public Defender (Virginia
L. Grady, Federal Public Defender, with him on the briefs),
Denver, Colorado, for Defendant-Appellant.
L. Schock, Assistant United States Attorney (Robert C.
Troyer, Acting United States Attorney, with him on the
brief), Denver, Colorado, for Plaintiff-Appellee.
BRISCOE, EBEL, and PHILLIPS, Circuit Judges.
PHILLIPS, CIRCUIT JUDGE.
found Kenneth Allen Francis guilty on three federal firearms
charges- namely, two counts of making false statements to a
firearms dealer, see 18 U.S.C. § 922(a)(6) and
one count of unlawful disposition of a firearm to a felon,
see 18 U.S.C. § 922(d)(1). Those charges
stemmed from Francis's straw purchase of two firearms for
a felon working as a confidential informant (CI) with agents
of the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF). In this appeal, Francis raises three issues: (1)
whether the government sufficiently proved that he disposed
of firearms to a felon (the CI), an element of the §
922(d)(1) offense; (2) whether the district court erred by
imposing a four-level sentencing enhancement for trafficking
firearms; and (3) whether the district court erred by
ordering sex-offender treatment as a special condition of his
supervised release. Exercising jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a), we affirm
Francis's § 922(d)(1) conviction and the
sex-offender-treatment special condition, but we vacate his
sentence and remand for resentencing.
Francis's Straw Purchases
his duties as an ATF Special Agent, Ryan Noble monitors the
internet for any activity indicating the violation of federal
firearms laws. In January 2016, Agent Noble viewed
Francis's recently posted YouTube video, entitled
"Need Help Getting a Gun." R. vol. 3 at 130:22-23.
video, Francis made several incriminating statements:
. "I am making a video to help people,
to help Americans who are not able to acquire
. "I want to make a video to let people
know that I am here to help you get your guns. If you
can't get a gun because you have a felony, if you
can't get a gun because you have a violent crime on your
record, or if you can't get a gun for some other type of
stupid reason, I want you to know that I want to help
. "I want you to know that the only
requirement that I have . . . is that you have a state
. "I don't care what state you are
from. I don't care about your background. . . . It just
does not matter what you have in your background. . . . I
don't care if you have a sex charge. I don't care if
you have a violent crime."
. "You're going to have to pay me
$50 for my time. Now $50 is a very, very reasonable price
because, you know I am basically going to be breaking the law
. "When you and I meet up, do me a
favor. Don't start talking about what you have in your
R. vol. 2 at 109.
the YouTube video, Francis listed his phone number, a link to
his website, and his e-mail address. Francis's website
featured photos of Francis, his phone number, and an embedded
version of the "Need Help Getting a Gun" video. The
website also had a hyperlink, which read, "Do you need
help getting a gun? Are you an American? If so, then I can
help. Watch my video." R. vol. 3 at 150:1-5. The
hyperlink sent viewers to the YouTube video.
watching the video, Agent Noble planned an undercover
operation to see whether Francis would indeed straw-purchase
a firearm. As part of the operation, Agent Noble had ATF
Special Agent Christopher Nicolussi (acting as
"Nick") send Francis an e-mail requesting
Francis's help in straw-purchasing a firearm. Francis
responded by requesting that Agent Nicolussi send a text
message to the phone number listed at the bottom of the
YouTube video. Through exchanged text messages, Francis and
Agent Nicolussi scheduled a meeting for January 12, 2016 at a
Bass Pro Shops store in Denver, Colorado.
meeting in the store's parking lot, Agent Nicolussi
handed Francis $1, 100 to purchase a firearm. Then the two
men walked into the store. Agent Nicolussi told Francis that
he wanted an AR-15-style rifle and backed away from the gun
counter to avoid any suspicion from the sales clerk. Francis
selected a Smith & Wesson M&P 15 OR rifle to purchase
for Agent Nicolussi. As required by federal law, the clerk
had Francis complete an ATF Form 4473, which federal firearm
licensees use to run a background check and record
transaction details. 18 U.S.C. § 922(t)(1); 27 C.F.R.
§§ 478.102(a), 478.124(a), (c). Once Francis
cleared the background check, he bought the rifle.
Francis and Agent Nicolussi left the store, with Francis
carrying the boxed rifle. In the parking lot, Francis put the
box into the back of Agent Nicolussi's undercover truck.
The rifle cost $91 more than the advanced $1, 100, so Agent
Nicolussi paid Francis the difference, as well as
Francis's $50 fee. Neither man discussed Agent
Nicolussi's criminal history.
afterward, Agent Noble obtained from the store Francis's
completed ATF Form 4473 and a copy of the store's
security video showing the sale. On the ATF form, "[i]n
box 11, question 11A, " Francis had "marked yes,
indicating that [he] was the actual purchaser of the
firearm." R. vol. 3 at 180:20-22. The form advised
Francis that he couldn't purchase a firearm on behalf of
up on this success, Agent Noble soon ran a second operation.
This time, Agent Noble enlisted the help of a CI-an actual
felon-with a history of working for ATF. Agent Noble had the
CI pose as Agent Nicolussi's coworker in a text message
to Francis requesting a straw-purchase of two firearms. In
exchange, the CI agreed to pay Francis a $75 fee.
and the CI agreed to meet on January 22, 2016 to purchase the
firearms at the Sportsman's Warehouse in Thornton,
Colorado. Still posing as the CI's coworker, Agent
Nicolussi accompanied the CI to meet Francis. Before the
encounter with Francis, ATF agents searched the CI to ensure
that he wasn't carrying any money, weapons, or
contraband; they attached a recording device to him; and they
provided him with $2, 000. Further, Agent Noble instructed
the CI "to make sure that it was clear to Mr. Francis
that the confidential informant was a convicted felon, to
make sure that Mr. Francis was aware the firearms were being
purchased for the confidential informant, and to make sure
that the money transfer would go directly from the
confidential informant to Mr. Francis." Id. at
177:5-11. The ATF agents also wired Agent Nicolussi with a
backup recording device.
Nicolussi, with the CI in the front passenger seat, drove his
undercover truck to the Sportsman's Warehouse parking
lot. Francis arrived in the same car that he had driven to
the first straw purchase. Agent Noble surveilled the
operation by listening to the transmitted audio from Agent
Nicolussi's and the CI's recording devices.
arriving, Francis walked to the driver-side window of Agent
Nicolussi's undercover truck. Agent Nicolussi told
Francis that the CI wanted to buy a "Glock 27 .40
caliber" and a "Glock 43." Id. at
296:12-15. The CI added, "I don't want to go in
there and cause any confusion." Id. at
298:9-10. Agent Nicolussi interpreted this comment as an
attempt to tell Francis that "something in [the
CI's] background . . . prevent[ed] him from purchasing .
. . a firearm himself." Id. at 298:18-20. Agent
Nicolussi told Francis that the CI "had a bullshit
felony back in the day." R. vol. 3 at 299:10-11. The CI
told Francis that he wished his convictions had been
misdemeanors. He described himself as having a