United States of America v. Joe Edger

United States Court of Appeals
For the Eighth Circuit
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No. 18-1594
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Joe Edger,
lllllllllllllllllllllDefendant - Appellant.
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No. 18-1596
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Joe Edger,
lllllllllllllllllllllDefendant - Appellant.
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Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: January 14, 2019
Filed: May 23, 2019
Redacted: May 16, 2022
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Before SMITH, Chief Judge, COLLOTON and ERICKSON, Circuit Judges.
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COLLOTON, Circuit Judge.
Joe Edger pleaded guilty to unlawful possession of a firearm as a previously
convicted felon and conspiracy to possess a firearm in furtherance of a drug
trafficking crime. See 18 U.S.C. §§ 922(g)(1), 924(o). The district court1 sentenced
him to the statutory maximum term of 360 months’ imprisonment, which was also the
advisory guideline sentence. On appeal, Edger contends that the district court erred
in applying a cross-reference in the advisory sentencing guidelines and by [redacted].
We conclude there was no reversible error, and we therefore affirm.
Edger, a convicted felon, gave a nine-millimeter firearm to an acquaintance,
Dwane Taylor, in exchange for Taylor’s .22 caliber firearm. Edger understood that
Taylor intended to use the nine-millimeter gun in connection with drug trafficking
activity and to retaliate against a woman who had stolen property from Taylor.
Taylor eventually used the firearm to kill that woman.
A grand jury charged Edger with unlawfully possessing the .22 caliber firearm
as a convicted felon. A separate indictment charged Edger and Taylor with
conspiracy to possess “one or more firearms” in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(o). Edger pleaded guilty to both charges, and
the cases were consolidated for sentencing.
1The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
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To determine a base offense level under the sentencing guidelines, the district
court applied the cross-reference at USSG § 2K2.1(c)(1)(B). That provision states
that if the defendant “transferred a firearm . . . cited in the offense of conviction with
knowledge . . . that it would be used . . . in connection with another offense,” and if
“death resulted,” then the court should apply the base offense level in “the most
analogous offense guideline” concerning homicide. USSG § 2K2.1(c)(1)(B). The
district court determined that because the nine-millimeter firearm formed the basis for
Edger’s conviction under § 924(o), and Edger transferred the firearm to Taylor with
knowledge that he would use it to retaliate against a woman who supposedly had
wronged him, the applicable guideline was USSG § 2A1.1 for first degree murder.
After applying the base offense level, applicable adjustments, and criminal
history score, Edger’s advisory guideline sentence was 360 months’ imprisonment,
the statutory maximum sentence. [Redacted] The district court then sentenced Edger
in accordance with the advisory guidelines to a term of 360 months.
Edger first challenges the district court’s application of the cross-reference
under § 2K2.1(c)(1)(B). He complains that the nine-millimeter firearm that he
transferred to Taylor was not “cited in the offense of conviction,” so the district court
should not have applied the cross-reference to the murder guideline. He argues that
a firearm is not “cited in the offense of conviction” unless the indictment identifies
the firearm by make, caliber, type, or some other characteristic. On this theory, since
the count charging a violation of § 924(o) stated only that Edger and Taylor conspired
to possess “one or more firearms,” and did not specifically identify the nine-
millimeter firearm, the cross-reference under § 2K2.1(c)(1)(B) cannot apply. We
review the district court’s legal conclusion de novo. See United States v. Jenkins, 792
F.3d 931, 935 (8th Cir. 2015).
The guideline provides that the firearm must be “cited in the offense of
conviction,” not “cited in the indictment,” so Edger’s focus is too narrow. The
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“offense of conviction” is ultimately identified by code section in the judgment. But
the phrase encompasses more broadly the offense conduct giving rise to the
conviction, and the court may refer to the entire record of the case to determine
whether a firearm is “cited” in the offense. “Cite” means “to bring to mind,” “refer
to,” or “bring forward, mention, [or] call to another’s attention.” Webster’s Third
New International Dictionary 411 (2002). It is clear from the record as a whole that
Edger was convicted of violating § 924(o) by conspiring to possess the nine-
millimeter firearm that he transferred to Taylor. In establishing a factual basis for his
guilty plea under § 924(o), Edger admitted that he knew Taylor was involved in drug
trafficking, that he agreed to transfer the nine-millimeter firearm to Taylor, and that
he understood that Taylor would use the firearm in connection with drug trafficking
activities. The nine-millimeter firearm was therefore “cited in the offense of
conviction,” because the record refers to that gun as the basis for the § 924(o)
conviction.
The commentary for § 2K2.1(c)(1)(B) further illuminates the meaning of “cited
in the offense of conviction.” The cross-reference applies where a defendant is
convicted of unlawfully possessing a shotgun and used the same shotgun in
connection with a robbery eight months earlier. USSG § 2K2.1, comment.
(n.14(E)(i)). But where the defendant is convicted of unlawfully possessing a
shotgun and used a handgun in connection with a robbery eight months earlier, the
cross-reference does not apply, because the handgun was not “cited in the offense of
conviction.” Id. comment. (n.14(E)(ii)). The illustration’s generic references to
“shotgun” and “handgun” suggest that whether a firearm is “cited in the offense of
conviction” depends on whether the firearm formed the basis for the conviction, not
whether the firearm was specifically identified in the charging document. Accord
United States v. Aberant, 741 F. App’x 905, 908 (4th Cir. 2018) (per curiam). We
therefore conclude that the district court did not err in calculating the advisory
guideline sentence.
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[REDACTED]
The judgments of the district court are affirmed.
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