United States of America v. Stanley Foote, also known as MURDER Stanley Foote

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-3607
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UNITED STATES OF AMERICA
v.
STANLEY FOOTE,
also known as
MURDER
Stanley Foote,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
District Court No. 2-07-cr-00549-001
District Judge: The Honorable William H. Walls
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 11, 2011
Before: RENDELL, SMITH, and FISHER, Circuit Judges
(Filed: July 21, 2011)
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OPINION
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SMITH, Circuit Judge.
Stanley Foote pleaded guilty, pursuant to a written plea agreement, to being a

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felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The United States
District Court for the District of New Jersey sentenced him to, inter alia, 110 months of
imprisonment. This timely appeal followed.1 We will affirm.
Foote contends that the District Court committed legal and factual error in
applying a four-level sentencing enhancement under United States Sentencing Guideline
§ 2K2.1(b)(6).2 According to Foote, the District Court improperly placed the burden on
him of proving that the enhancement did not apply. In addition, Foote contends that the
District Court committed clear error as it could not have found that he had reason to
believe that the firearm would be used or possessed in connection with a drug transaction.
Foote appropriately recognizes that we “review factual findings relevant to the
Guidelines for clear error and . . . exercise plenary review over a district court’s
interpretation of the Guidelines.” United States v. Grier, 475 F.3d 556, 570 (3d Cir.
2007) (en banc).
“Proper application of the four-level enhancement under § 2K2.1(b)(6) requires
finding, by a preponderance of the evidence,” that the defendant transferred a firearm
with a reason to believe that it would be used or possessed in connection with another
felony offense. United States v. West, __F.3d __, 2011 WL 1602084, at *5 (3d Cir.
2011). After consideration of the record, we conclude that the District Court properly
1 The District Court exercised jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
2 Section 2K2.1(b)(6) provides for a four-level enhancement “[i]f 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[.]” U.S.S.G. § 2K2.1(b)(6).

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applied this enhancement. It did not, contrary to Foote’s assertion, shift the burden to
Foote to disprove the applicability of the enhancement. Its questions were simply part of
its exchange with counsel prior to ruling on Foote’s objection to the enhancement.
Nor are we persuaded that the District Court committed clear error. Foote did not
take issue with the presentence report’s factual averments, which established that he
either brokered or sold drugs on a number of occasions to a confidential informant in
quantities indicative of the informant’s intent to distribute, and that he subsequently sold
a firearm to this same individual. Foote argued that, because the drug and firearm
transactions were separate and distinct, the evidence failed to demonstrate that he knew
or reasonably believed that the firearm would be used in another felony offense. The
District Court rejected Foote’s argument. Citing Foote’s “interactions with the
confidential source before” the date of the firearm sale, the Court declared that Foote
“knew that when he sold that weapon to the [confidential informant] that it, more likely
than not, would be used together or as an assistance to . . . the [informant’s] drug
trafficking.” This finding is a permissible view of the evidence. In the absence of clear
error, there is no reason to disturb the District Court’s determination that the
enhancement applied.
We will affirm the judgment of the District Court.

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