UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

v. ) CASE NO. 1:13-CR-82-TLS

)

JACOB MILLER )

SENTENCING OPINION

The Defendant, Jacob Miller, is awaiting imposition of a sentence for his offense of

knowingly selling a firearm to a convicted felon. The Defendant objects to certain aspects of the

Presentence Investigation Report and requests a variance from the advisory Guideline range. On

June 9, 2015, he appeared before the Court and testified concerning the nature and circumstances

of his offense, as well as his personal background and characteristics. Finding that the

Defendant’s objections do not have merit, the Court overrules them. The Guideline range is

properly calculated as 57 to 71 months of imprisonment. However, in consideration of the

evidence presented in the PSR, in the Defendant’s Sentencing Memorandum [ECF No. 49] and

in the Letters attached to the Memorandum [ECF No. 49-1], and through his testimony at the

evidentiary hearing, the Court finds that the nature and circumstances of the offense conduct and

the Defendant’s history and characteristics, justify a variance from the advisory Guidelines

range. Specifically, the Court finds that a sentence of twelve months, split between imprisonment

and home detention, followed by one year of supervised release, is sufficient, but not greater

than necessary, to reflect the seriousness of the offense, to promote respect for the law, to

provide just punishment for the offense, to afford adequate deterrence to criminal conduct, to

protect the public from further crimes of the Defendant, and to provide the Defendant with

needed rehabilitative opportunities.
ANALYSIS

When sentencing a defendant, the district court “must first calculate the Guidelines range,

and then consider what sentence is appropriate for the individual defendant in light of the

statutory sentencing factors, 18 U.S.C. § 3553(a).” Nelson v. United States, 555 U.S. 350, 351

(2009); see United States v. Panice, 598 F.3d 426, 441 (7th Cir. 2010) (citing Nelson, and setting

forth the two-step process that a sentencing court must engage in to determine a defendant’s

sentence). In imposing a sentence, § 3553(a) requires a court to consider the nature and

circumstances of the offense and the history and characteristics of the defendant, and impose a

sentence that is sufficient, but not greater than necessary, to satisfy the purposes of sentencing:

adequately capturing the seriousness of the offense, providing just punishment, promoting

respect for the law, affording adequate deterrence, protecting the public, and rehabilitating the

defendant. In making this determination, a district court may not presume that the Guidelines

sentence is the correct one. Nelson, 555 U.S. at 352; Rita v. United States, 551 U.S. 338, 351

(2007). Ultimately, a district court must make an independent determination, taking into account

the types of sentences available, the other relevant § 3553(a) factors, and the arguments of the

parties. See Gall v. United States, 552 U.S. 38, 49–50 (2007). A sentencing court must explain

any variance from the Guidelines range with reference to the § 3553(a) factors. Nelson, 555 U.S.

at 351.

A. The Guideline Range

The Guidelines assign 20 points as the base offense level for selling a firearm to a

convicted felon when, as here, the firearm is capable of accepting a large capacity magazine.

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U.S.S.G. § 2K2.1(a)(4)(B)(i)(I) and (ii)(II). The Defendant argues that a lower base offense level

should apply because the confidential informant requested a high capacity magazine for the

April 2013 transaction with the Defendant. The Government notes, however, that the firearm the

probation officer used to establish the base offense level was an entirely different firearm, sold in

a different transaction. According to paragraph 23 of the PSR, in June 2013, the Defendant sold

an SKS with a high capacity magazine capable of holding 35 rounds. The facts reported in

paragraph 23 bear sufficient indicia of reliability to support their probable accuracy, and the

Defendant’s objection is overruled.

The other objection lodged by the Defendant is that the probation officer added 4 points

to the Defendant’s offense level because, pursuant to § 2K21.1(b)(5), the Defendant engaged in

the trafficking of firearms. According to Application Note 13(A), a defendant engages in the

trafficking of firearms if the defendant “transported, transferred, or otherwise disposed of two or

more firearms to another individual” and the defendant “knew or had reason to believe that such

conduct would result in the transport, transfer, or disposal of a firearm to an individual whose

possession or receipt of the firearm would be unlawful.” Application Note 13(B) defines an

individual whose possession or receipt of the firearm would be unlawful as an “individual who

has a prior conviction for a crime of violence, a controlled substance offense, or a misdemeanor

crime of domestic violence . . . or at the time of the offense was under a criminal justice

sentence, including probation, parole, supervised release, work release, or escape status.” The

Defendant’s argument against the application of this enhancement is that “no firearms were

actually transferred to ‘an individual whose possession or receipt of the firearm would be

unlawful’” because those individuals were, in actuality, “little more than middle men who

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transferred firearms from the Defendant to the Government agents in the context of a controlled

buy.” (Def.’s Sentencing Mem. 3–4, ECF No. 49 (quoting Application Note 13(B).) He argues

that the prohibited persons never “possessed” the firearms under the Webster’s Dictionary

definition of that term, which he notes is “the condition of having or owning something.” (Def.’s

Sentencing Mem. 3–4, ECF No. 49 (quoting

http://www.merriam-webster.com/dictionary/possession).) 

The enhancement does not require the kind of possession the Defendant urges. It requires

only that the Defendant transport, transfer, or dispose of the firearms to another person (which he

did) and that he knew or had reason to know that possession of the firearm by that individual

would be unlawful (which he did). There is no dispute that the confidential informant referred to

in paragraphs 11–19 of the PSR was a convicted felon. That individual told the Defendant he

would have to meet him at his house because he was on house arrest and had an ankle bracelet

for a felony robbery conviction. There is also no dispute that the Defendant traded or sold more

than three firearms to this individual, and that he sold two of them before the individual became

a confidential informant. In fact, the individual gave the two firearms to his brother, not to law

enforcement agents. The firearms were recovered in response to a 911 call of shots fired, which

led to the arrest of the brother for shooting at another person. 

With respect to the guns sold after the individual became a confidential informant, the

Defendant’s objection fares no better. The enhancement contains no requirement that the

individual continue to possess the firearm, or that the seller even know how long the buyer

intended to keep the gun. The individuals the Defendant sold firearms to were not allowed to

possess them, even temporarily. See United States v. Matthews, 520 F.3d 806, 809 (7th Cir.

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2008) (noting that the purpose of the statutory prohibition on felons possessing firearms

reasonably extends to “any physical control over a gun” including just holding the gun); United

States v. Lane, 267 F.3d 715, 718–19 (7th Cir. 2001). The Defendant’s objection is overruled.

After an additional enhancement for the number of firearms involved, and reductions for

acceptance of responsibility, the total offense level is 25. The Defendant’s criminal history score

is zero, which puts him in criminal history category I. The resulting range is 57 to 71 months of

imprisonment. The Court finds that these calculations are correct and adopts the probation

officer’s conclusions as to the applicable Guideline range. 

B. The § 3553(a) Factors

The Defendant argues that the Court should exercise its discretion under § 3553(a) and

sentence him to a term of imprisonment that would allow him to serve a split sentence, as if his

range fell into Zone C of the Guideline’s Sentencing Table.

The Defendant is 51 years old with no prior criminal history. He is a life long resident of

the district, and has an 8th grade education. The Defendant supports himself and his twelve-yearold son by performing carpentry, electrical, and plumbing projects. According to letters written

on his behalf, he is skilled, hard working, and conscientious in his work and is otherwise well

regarded in the community. The Defendant has sole custody of his son, and, by all accounts, is a

devoted, loving, and responsible father.

The Defendant sold firearms to three different convicted felons over the nine month

period of ATF’s investigation. The Defendant himself is a collector of guns, and he has owned

guns all of his life. He would often trade in guns, but it was not the basis of his livelihood. The

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problem is that the Defendant was not discerning in who he sold guns to, appearing more

concerned with the “right to bear arms.” Although he was aware that his buyer could not

lawfully purchase a gun from a gun store because of his prior felony (PSR ¶ 18), he appeared to

reserve for himself whether another person’s felony was sufficiently serious to prohibit gun

ownership. He testified that he believed a felony had to involve violence or guns before it would

prohibit possession. His testimony was that he “wasn’t thinking right I guess.” 

While the Defendant chose to ignore the possible consequences of his actions, the Court

cannot dismiss the fact that a firearm the Defendant willingly transferred to a convicted felon

were used in another dangerous crime. However, the circumstances of the offense do not suggest

that a significant term of imprisonment is necessary to account for its seriousness, to promote

respect for the law, to provide just punishment, or to protect the public from further crimes of the

Defendant. It suggests small town simplicity of thought more than it does defiant opposition to

the rule of law.

Certainly, having now been arrested, charged, and convicted of the offense, the

Defendant is unlikely to repeat it. Upon observing his demeanor, the Court found the Defendant

to be genuinely remorseful for his conduct, if not still a bit confused as to how he came to be

facing such serious consequences. He believes he has tried to be a good citizen and portrays his

life as “turned upside down” over the federal involvement. If the Defendant was confused

before, he is no longer. He is aware that he will never again be allowed to possess a firearm

because he is a convicted felon. The Defendant’s son provides him with great incentive to stay

compliant with all aspects of the law. The Defendant has sole custody of his son, and is involved

in his daily life. The Defendant’s care and concern for his son appears genuine, and has been

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confirmed by letters written to the Court. The Defendant has performed well on pretrial

supervision, which began in November 2014.

In sentencing the Defendant, the Court has been mindful of the need to avoid

unwarranted sentencing disparities among defendants with similar records who have been found

guilty of similar crimes. This Court has had before it other cases involving an individual’s

involvement in the purchase of firearms for a prohibited person. A split sentence of twelve

months would not be an unwarranted disparity.

CONCLUSION

For the reasons stated above, the Court OVERRULES the Defendant’s objections to the

PSR, but GRANTS the Defendant’s request for a variance from the advisory Guideline range.

The Court anticipates imposing a sentence of twelve months. The specific sentence to be

imposed will be determined at the sentencing hearing, after the Defendant has had an additional

opportunity to address the Court. Sentencing is confirmed for August 12, 2015, at 11:00 AM.

ENTERED on July 20, 2015.

 s/ Theresa L. Springmann 

THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

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