United States of America v. Wayne Riley

United States Court of Appeals
For the Eighth Circuit
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No. 22-3240
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United States of America
Plaintiff - Appellee
v.
Wayne Riley
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Northern
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Submitted: April 10, 2023
Filed: August 3, 2023
[Unpublished]
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Before LOKEN, SHEPHERD, and KELLY, Circuit Judges.
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PER CURIAM.
Wayne Riley pleaded guilty to possession of an unregistered firearm, in
violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. The district court1 sentenced
him to 120 months’ imprisonment, applying a 4-level enhancement under United
1 The Honorable Lee P. Rudofsky, United States District Judge for the Eastern
District of Arkansas.

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States Sentencing Guidelines § 2K2.1(b)(5) (2021) for trafficking firearms. Riley
appeals the application of the enhancement and his sentence. We affirm.
I.
In September 2020, law enforcement conducted a search of the home of
Darius Balentine and uncovered two “destructive devices,” each of which appeared
to be “some type of . . . bomb.” An examination of the devices showed they
contained a pyrotechnic fuse, a considerable amount of smokeless powder, and nails.
Balentine was arrested and interviewed by Special Agent Timothy Boles of the
Bureau of Alcohol, Tobacco, Firearms and Explosives. Balentine told Special Agent
Boles that a man, Wayne Riley, had “dropped . . . off [the devices] at his house,” and
that “another individual was supposed to come get them” from Balentine later.
Balentine’s phone records showed Facebook messages between himself and Riley,
where Riley offered to sell Balentine “pipe bombs,” priced at one bomb for $100 or
ten bombs for $800. Balentine replied, agreeing to purchase some of the bombs and
telling Riley that he “ha[d] got some people trying to buy some.”
On July 6, 2021, a grand jury indicted Riley on one count of possession of an
unregistered firearm, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871.2 Riley
later pleaded guilty, without a plea agreement, to this single count. Relevant here,
the Probation Office prepared a presentence investigation report (PSR) that
recommended that Riley receive a four-level enhancement under
Guidelines § 2K2.1(b)(5) because he “engaged in the trafficking of firearms.” Riley
objected.
At sentencing, the government introduced evidence of the messages between
Balentine and Riley, and Special Agent Boles testified. The district court overruled
Riley’s objection, resulting in an advisory Guidelines range of 77 to 96 months’
imprisonment. Applying the 18 U.S.C. § 3553(a) sentencing factors, the district
2 Balentine was charged as a co-defendant.

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court explained that an upward variance was warranted because “[p]ipe bombs
destroy lives, they destroy people, [and] they harm.” The court also noted Riley’s
“very concerning” criminal history, which included offenses Riley committed while
awaiting sentencing on the instant offense, and it stated that Riley’s behavior showed
“not only a willingness to violate the law, but . . . a continuing lack of respect for the
law.” The district court thereafter imposed a sentence of 120 months’ imprisonment,
to be followed by 3 years of supervised release. Riley now appeals.
II.
A.
We turn first to the district court’s imposition of the trafficking-in-firearms
enhancement. Under Guidelines § 2K2.1(b)(5), a defendant’s base offense level
increases by four if he or she “engaged in the trafficking of firearms.” But the
enhancement applies only if the defendant (1) “transported, transferred, or otherwise
disposed of two or more firearms to another individual” and (2) “knew or had reason
to believe that such conduct would result in the transport [or] transfer” of the firearm
to an individual (a) “whose possession or receipt of the firearm would be unlawful”
or (b) “who intended to use or dispose of the firearm unlawfully.” USSG § 2K2.1,
comment. (n.13(A)).
The district court determined that Riley transported or transferred firearms—
the two pipe bombs—to Balentine, and that Riley knew or had reason to believe that
Balentine, or “the people that Mr. Balentine was ultimately going to sell” to, were
individuals whose possession or receipt of the firearm would be unlawful. See id.
§ 2K2.1, comment. (n.13(B)) (defining “individual” whose possession would be
“unlawful” as one who has a conviction “for a crime of violence, a controlled
substance offense, or a misdemeanor crime of domestic violence” or who “was under
a criminal justice sentence”). On appeal, Riley argues that there was “no evidence
whatsoever” that he knew or had reason to believe that Balentine or any of
Balentine’s “alleged potential buyers” “fell into the narrow category of prohibited

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possessors.” The government does not seriously counter this argument. Instead, it
contends that given the nature of the bombs and the circumstances of Riley’s
transfer, Riley knew or had reason to believe that the sale of these destructive devices
“would result in the transport, transfer, or disposal of a firearm to an
individual . . . who intended to use or dispose of the firearm unlawfully.” Id.
§ 2K2.1, comment. (n.13(A)(ii)(II)). We agree.
Riley “transferred . . . two or more [destructive devices]” to Balentine. Id.
§ 2K2.1, comment. (n.13(A)(i)). And based on the evidence presented at sentencing,
Riley also knew, or had reason to believe, that Balentine “intended to . . . dispose of
the [destructive devices] unlawfully.” Id. § 2K2.1, comment. (n.13(A)(ii)(II)); see
United States v. Asante, 782 F.3d 639, 644 (11th Cir. 2015) (explaining that when
determining whether a defendant knew his conduct would result in the transfer of
firearms to someone that would trigger the trafficking enhancement, courts look “to
the circumstances known to the defendant”). Balentine expressly communicated to
Riley his subsequent plans for the bombs: he was going to resell them. And
transferring unregistered firearms, like the destructive devices Balentine intended to
sell, is “unlawful.” See 26 U.S.C. § 5861(e). The evidence therefore supports a
finding that Riley knew or had reason to believe that Balentine intended to dispose
of the pipe bombs unlawfully. See, e.g., United States v. McKenzie, 33 F.4th 343,
351 (6th Cir. 2022) (reasoning that a court may rely on “a buyer’s ‘red flag’
statements” that are communicated to the defendant to conclude that “the defendant
had a reason to believe that the buyer . . . intended to use [the firearms] unlawfully”).
The district court did not clearly err in applying the enhancement.
B.
Riley also challenges the substantive reasonableness of his sentence. We
review the substantive reasonableness of sentences under “a deferential abuse-of-
discretion standard.” United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009)
(en banc) (quoting United States v. Hayes, 518 F.3d 989, 995 (8th Cir. 2008)). “A
district court abuses its discretion when it (1) fails to consider a relevant factor that

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should have received significant weight; (2) gives significant weight to an improper
or irrelevant factor; or (3) considers only the appropriate factors but in weighing
those factors commits a clear error of judgment.” Id. (quotations and citation
omitted).
Riley argues that the district court gave “too much weight” to “factors already
taken into account in the calculation of the advisory [G]uidelines range, such as the
nature of the offense and Mr. Riley’s criminal history.” The district court described
Riley’s offense as “appalling” and noted that “selling pipe bombs” was “among the
most dangerous offenses one can commit.” The court explained that this, coupled
with Riley’s criminal record, warranted more than “a normal [G]uideline sentence.”
The court concluded that a sentence of 120 months was necessary “to specifically
deter” Riley and “to protect the public.” A district court may “assign relatively
greater weight to the nature and circumstances of the offense than to the mitigating
personal characteristics of the defendant,” United States v. Wisecarver, 644 F.3d
764, 774 (8th Cir. 2011), and the record demonstrates that the court properly
considered the § 3553(a) factors. See United States v. Thorne, 896 F.3d 861, 865
(8th Cir. 2018) (per curiam) (explaining that factors taken into account in calculating
the advisory Guidelines range can form the basis of an upward variance). We discern
no abuse of discretion.
III.
The judgment of the district court is affirmed.
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