United States Court of Appeals

For the Eighth Circuit

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No. 19-1176

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United States of America,

lllllllllllllllllllllPlaintiff - Appellee,

v.

Demetrick Roy Roberts,

lllllllllllllllllllllDefendant - Appellant.

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Appeal from United States District Court 

for the Southern District of Iowa - Davenport

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 Submitted: November 11, 2019

Filed: May 1, 2020

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Before COLLOTON, WOLLMAN, and BENTON, Circuit Judges. 

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COLLOTON, Circuit Judge.

Demetrick Roberts pleaded guilty to unlawful possession of a firearm as a

previously convicted felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court

determined an advisory guideline range of 110 to 120 months’ imprisonment, and

then sentenced Roberts below the range to a term of 96 months. Roberts appeals,

arguing that the district court committed procedural error by applying two
adjustments when calculating the guideline range. We conclude that the court

properly applied a four-level increase for possession of a firearm “in connection with

another felony offense” under USSG § 2K2.1(b)(6)(B), but that a two-level increase

for “using a minor to commit a crime” under USSG § 3B1.4 should not have applied. 

Therefore, we vacate Roberts’s sentence and remand for resentencing.

The relevant facts arise from an incident on January 27, 2018, in Bettendorf,

Iowa. A police officer activated his emergency lights and approached a disabled

vehicle on the side of the road. As the officer approached, Roberts fled the disabled

vehicle on foot, and another officer tackled Roberts. During the struggle, a loaded

firearm fell out of Roberts’s right front sweatshirt pocket.

Roberts had obtained the firearm from a minor whose initials are B.D. Roberts

transferred a quarter-ounce of marijuana and $100 to B.D. in exchange for the

firearm. Roberts later told his girlfriend that B.D. did not want the gun because he

thought it was stolen. B.D. confirmed that he traded a stolen firearm to Roberts for

cash and marijuana. The record does not show who proposed the transaction or how

it was negotiated.

Roberts had sustained a prior felony conviction for a drug offense in 2004, and

he pleaded guilty in this case to unlawful possession of a firearm as a convicted felon. 

At sentencing, the district court determined a base offense level of 20 and applied a

two-level increase for possession of a stolen firearm. USSG §§ 2K2.1(a)(4),

(b)(4)(A). The court then applied two adjustments that Roberts disputes: a four-level

increase for using or possessing a firearm in connection with another felony offense,

see USSG § 2K2.1(b)(6)(B), and a two-level increase for using a person of less than

eighteen years of age to commit the offense, see USSG § 3B1.4. Finally, the court

decreased the offense level by three based on acceptance of responsibility, see USSG

§ 3E1.1, and then varied downward from the advisory range under 18 U.S.C.

§ 3553(a)(1) based on Roberts’s lack of youthful guidance, mental or emotional

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condition, and acceptance of responsibility. We review the district court’s

interpretation and application of the sentencing guidelines de novo and its factual

findings for clear error. United States v. Outlaw, 946 F.3d 1015, 1019 (8th Cir.

2020).

Roberts first challenges the district court’s application of the four-level

increase under USSG § 2K2.1(b)(6)(B). This provision applies if a defendant “used

or possessed any firearm or ammunition in connection with another felony offense.” 

The court determined that Roberts possessed the firearm in connection with the

felony offense of carrying weapons under Iowa law: 

a person who goes armed with a dangerous weapon concealed on or

about the person, or who, within the limits of any city, goes armed with

a pistol or revolver, or any loaded firearm of any kind, whether

concealed or not, or who knowingly carries or transports in a vehicle a

pistol or revolver, commits an aggravated misdemeanor.

Iowa Code § 724.4(1).

Roberts concedes that he violated § 724.4(1). He argues, however, that the

Iowa offense does not constitute “another felony offense” under USSG

§ 2K2.1(b)(6)(B), because he could not commit the federal felon-in-possession

offense without also committing the Iowa offense.

His argument is foreclosed by United States v. Walker, 771 F.3d 449 (8th Cir.

2014). There, this court explained that a defendant does not “automatically commit”

the Iowa offense of carrying weapons simply by possessing a firearm as a prohibited

person. Id. at 452-53. The Iowa statute requires proof that the defendant went armed

“with a dangerous weapon concealed on or about the person,” or went armed with a

handgun “within the limits of any city.” Iowa Code § 724.4(1). Those elements are

not required to prove a felon-in-possession offense under federal law. Therefore, the

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defendant in Walker could have committed the underlying federal offense without

also violating the state statute, and we applied § 2K2.1(b)(6)(B) according to its

terms. 771 F.3d at 453. Roberts points out that the defendant in Walker carried a

firearm “concealed on or about the person” in a vehicle, while Roberts violated the

Iowa law by carrying a loaded firearm within city limits, but the particular means by

which each defendant violated § 724.4(1) is immaterial. There was no error in

applying the four-level increase.

Roberts also contends that the district court erred by applying a two-level

increase under USSG § 3B1.4. That provision applies if the defendant “used or

attempted to use a person less than eighteen years of age to commit the offense.” 

“‘Used or attempted to use’ includes directing, commanding, encouraging,

intimidating, counseling, training, procuring, recruiting, or soliciting.” USSG

§ 3B1.4, comment. (n. 1). We have joined other courts in concluding that “there must

be ‘some affirmative act beyond mere joint participation in a crime with a minor’” for

the defendant’s conduct to constitute “use” of a minor under the guideline. United

States v. Fisher, 861 F.3d 802, 805 (8th Cir. 2017) (quoting United States v.

Pojilenko, 416 F.3d 243, 247 (3rd Cir. 2005)). The evidence must establish that the

defendant acted affirmatively to involve a minor in the crime. United States v. Paine,

407 F.3d 958, 965 (8th Cir. 2005).

We have upheld the increase, for example, when a drug trafficker served as a

mentor to a minor who sold drugs and learned the “game” of crack cocaine trafficking

from the defendant. United States v. Birdine, 515 F.3d 842, 845 (8th Cir. 2008). In

Paine, this court ruled that the increase was properly applied when a bank robber

“asked his son to accompany him on the robbery to provide moral support,” even

though the minor did not know about the robbery or participate in the crime. 407

F.3d at 965. But we deemed the increase inapplicable when a minor merely sat in a

getaway car while a defendant robbed a bank, and made “unilateral” use of maps to

plan routes while traveling with the defendant. Fisher, 861 F.3d at 805. The district

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court in this case observed that there is “not a real well developed body of case law”

concerning § 3B1.4, but thought the fact that Roberts traded marijuana and cash to

a minor for a stolen handgun was sufficient to support the increase.

This court has not addressed whether a prohibited person “uses” a minor “to

commit” a felon-in-possession offense by acquiring a firearm from a minor. Perhaps

the closest authority on point is United States v. Hodges, 315 F.3d 794 (7th Cir.

2003), where the defendant was convicted of receiving stolen weapons and

possessing a firearm as a felon. Id. at 798. The court upheld an increase under

§ 3B1.4 because the defendant encouraged a minor and others to steal guns and

deliver them to the defendant, and also encouraged the minor and others to “front”

the firearms to him without payment so that he could sell the guns and share the

proceeds. Id. at 802-03. The court clarified, however, that its opinion did not suggest

that a defendant “uses” a minor “in an arm’s length transaction such as the purchase

by a fence of a gun from a minor.” Id. at 802 n.2.

On the limited record here, we believe that the evidence shows only that

Roberts engaged in an arm’s-length transaction with a minor: he traded marijuana

and cash to the minor, B.D., in exchange for a firearm. Unlike the defendant in

Hodges, Roberts did not “use” B.D. in any broader criminal activity involving the

trafficking of stolen firearms. Unlike the defendant in United States v. Regalado, 639

F. App’x 266 (5th Cir. 2016), who involved a minor in a drug trafficking conspiracy

by accepting drugs from the minor, Roberts did not participate in jointly undertaken

criminal activity. Id. at 268. Roberts committed a status offense by possessing a

firearm as a prohibited person, and he committed it alone. Although Roberts’s

relevant conduct under the guidelines likely included not only unlawful possession,

but also unlawful receipt of a firearm as a felon, 18 U.S.C. § 922(g)(1), and unlawful

receipt of a stolen firearm, 18 U.S.C. § 922(j), the government does not rely on those

acts or address whether a receiver “uses” an arm’s-length supplier to commit a receipt

offense. On the arguments and record presented, we conclude that an unadorned

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arm’s-length transaction with a minor, like mere joint participation in an offense as

a partner, does not amount to “use” of a minor “to commit the offense” of unlawful

possession of a firearm by a felon.

The district court sentenced Roberts to a term of imprisonment below the

advisory guideline range based on 18 U.S.C. § 3553(a). We do not know, however,

whether the outcome would have been different if the court had determined a

different advisory range. Therefore, we vacate Roberts’s sentence and remand for

resentencing. Although we reject the government’s argument for an increase under

USSG § 3B1.4, the district court may consider that Roberts facilitated a minor’s sale

of a stolen firearm, see 18 U.S.C. § 922(j), and distributed a controlled substance to

a minor, cf. USSG § 2D1.1(b)(16)(B), when evaluating the factors under § 3553(a).

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