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United States v. Francis

United States Court of Appeals, Tenth Circuit

June 5, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
KENNETH ALLEN FRANCIS, Defendant-Appellant.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:16-CR-00068-WJM-1)

          Jacob R. Rasch-Chabot, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.

          Karl L. Schock, Assistant United States Attorney (Robert C. Troyer, Acting United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

          Before BRISCOE, EBEL, and PHILLIPS, Circuit Judges.


         A jury 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;[1] (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.


         A. Francis's Straw Purchases

         Among 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.

         In the video, Francis made several incriminating statements:

. "I am making a video to help people, to help Americans who are not able to acquire firearms[.]"
. "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 you[.]"
. "I want you to know that the only requirement that I have . . . is that you have a state ID."
. "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 here."
. "When you and I meet up, do me a favor. Don't start talking about what you have in your past."

R. vol. 2 at 109.

         Below 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.

         After 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.

         At the 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.

         Then 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.

         Soon 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."[2] R. vol. 3 at 180:20-22. The form advised Francis that he couldn't purchase a firearm on behalf of another person.

         Following 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.

         Francis 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.

         Agent 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.

         Upon 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 ...

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