USA V. FERRARI
Split Score
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Case Summary
Disposition
Affirmed
The Ninth Circuit affirmed the district court’s four-level firearms-trafficking enhancement imposed on Christian Ferrari for unlicensed gun sales. The court held that Application Note 13 to U.S.S.G. § 2K2.1(b)(5) requires only that a defendant have reason to believe the transferee was a prohibited possessor or intended unlawful use, not that the transferee actually meet those criteria.
Circuit Split Identified
Legal Issue
Whether Application Note 13 to U.S.S.G. § 2K2.1(b)(5) requires that the transferee actually be an unlawful possessor/intend unlawful use, or only that the defendant had reason to believe so.
Circuit Positions
Enhancement applies when the defendant had reason to believe the transferee was prohibited or intended unlawful use; actual status of transferee need not be proven.
Enhancement applies only if the transferee actually was a prohibited possessor or in fact intended unlawful use.
Conflict Summary
The Sixth, Seventh, Ninth, and Eleventh Circuits hold that the firearms-trafficking enhancement applies if the defendant had reason to believe the transferee was prohibited or intended unlawful use, regardless of whether that belief was true. The Tenth Circuit (Francis) requires the government to prove that the transferee in fact was a prohibited possessor or actually intended unlawful use before the enhancement applies.