UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5885

AUBREY MOORE, III,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Clarksburg.

Irene M. Keeley, District Judge.

(CR-94-115)

Argued: June 7, 1996

Decided: August 12, 1996

Before MURNAGHAN and NIEMEYER, Circuit Judges, and

CURRIE, United States District Judge for the

District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Hunt Lee Charach, Federal Public Defender, Charleston,

West Virginia, for Appellant. Paul Thomas Camilletti, Assistant

United States Attorney, Wheeling, West Virginia, for Appellee. ON

BRIEF: C. Cooper Fulton, Assistant Federal Public Defender,

Charleston, West Virginia, for Appellant. William D. Wilmoth,

United States Attorney, Wheeling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Aubrey Moore, III, pled guilty to transferring a firearm, knowing

that it would be used to commit a drug trafficking crime, in violation

of 18 U.S.C. § 924(h), and was sentenced to 21 months imprisonment.

On appeal, Moore argues that because his mistaken belief that the

guns he sold to undercover government agents would be used in drug

trafficking does not establish the knowledge required by § 924(h), the

district court erred in accepting his guilty plea. He further contends

that the district court illegally enhanced his sentence based on guns

that he sold to undercover government agents after offering to cooperate in their sting operation because the government agents engaged in

"sentencing manipulation" by continuing to purchase firearms from

him. Finding Moore's arguments meritless, we affirm.

I

After arresting an underage individual for possession of a handgun

which the individual had illegally purchased from Moore, Detective

Steve Cain of the Fairmont (West Virginia) Police Department

referred the investigation to Special Agent Kent Hallsten of the Federal Bureau of Alcohol, Tobacco and Firearms. Detective Cain's

referral indicated that Moore, a federally licensed firearms dealer, was

suspected of (1) selling firearms to a person less than 21 years old and

(2) selling firearms at a premise other than his father's Fairmont residence, the only location permitted by his federal license.

Special Agent Hallsten recruited the juvenile as a confidential

informant and directed his participation in several controlled handgun

purchases from Moore. The juvenile bought one handgun from Moore

on November 12, 1993, and two more on November 23, 1993. Both

purchases occurred at Moore's own Fairmont residence.

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On December 2, 1993, the juvenile informant introduced Agent

Hallsten, acting undercover, to Moore. Hallsten told Moore that he

wished to buy machine guns, and Moore said that he could make a

machine gun. Agent Hallsten then informed Moore that he had sold

the two handguns the informant had purchased from Moore on

November 23 to individuals in Pittsburgh. When Moore indicated that

"he dealt with some black individuals" in Pittsburgh, Hallsten

responded that he was "probably dealing with the same type of individuals." Finally, Hallsten stated that he wished to buy two more

handguns from Moore.

Agent Hallsten met with Moore again on December 9, 1993, to see

if Moore had the two handguns that he had ordered. Moore said that

the guns were at his father's house but that Hallsten could pick them

up later that day. When Agent Hallsten returned about an hour later,

Moore, who had retrieved the guns, delivered them to Hallsten.

According to his later testimony, Hallsten informed Moore during

their first meeting on December 9 that he would be trading the handguns for drugs in Pittsburgh. But according to Moore's account, Hallsten did not mention that he intended to use the guns in drug

trafficking until after Moore had delivered them, and Moore

responded that he "didn't want to know what [Hallsten] was going to

do with them."

On December 16, 1993, Agent Hallsten obtained three more handguns from Moore, and Moore telephoned Detective Cain, offering to

assist the police in apprehending Hallsten and the confidential informant. During another call to Cain on December 17, Moore stated that

"he had to do something" because a white man named "Kent" (who

was, in fact, Agent Hallsten) and a black man (who was, in fact, the

juvenile informant) were "pushing him for machine guns." Detective

Cain told Moore that he would get back to him in a few days after

talking with his chief and advised Moore not to do anything illegal.

In response to Moore's inquiry whether "the feds were trying to set

him up," Cain said that he did not know. Detective Cain reported

Moore's calls to Agent Hallsten, who believed that Moore had provided inaccurate information.

Detective Cain called Moore twice in late December 1993, again

admonishing him not to violate any state or federal laws. During the

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second conversation, Cain invited Moore to come in to sign a written

statement as to the information that he had previously provided over

the telephone. Although Moore indicated that he might sign such a

statement, he never did.

After December 29, 1993, Moore made no more reports to Detective Cain even though Agent Hallsten and the juvenile informant continued to call and solicit Moore for firearms, including machine guns.

The undercover agents bought two more handguns from Moore, one

on February 25 and another on March 28, 1994. Moore had advance

notice of both sales but did not contact Detective Cain either before

or after making them.

Moore and his father were charged in a 20-count indictment with

various offenses relating to the sale of firearms. Pursuant to a plea

agreement, Moore pled guilty to transferring a firearm, knowing that

it would be used to commit a drug trafficking offense, in violation of

18 U.S.C. § 924(h), for his handgun sales to undercover Agent Hallsten on December 9, 1993. The district court deferred acceptance of

Moore's plea pending its review of his presentence report.

Moore's presentence report recommended that his sentence be

enhanced three levels under U.S.S.G. § 2K2.1(b)(1)(C) because

eleven firearms had been involved in his relevant conduct, and four

levels under U.S.S.G. § 2K2.2(b)(5) because Moore had known that

the firearms he had sold would be used in connection with a drug trafficking crime. Moore objected to the report, contending first that he

should not be held accountable for the five guns he had sold after telephoning Detective Cain on December 16, 1993, because he had

believed from that date on that he was cooperating with the police to

apprehend "Kent" and the juvenile confidential informant. Moore further argued that his sentence should not be enhanced for knowing the

firearms he sold would be used in drug trafficking because the government had impermissibly attempted to manipulate his sentence by

mentioning drugs only after he had delivered the handguns to Hallsten. In response to the government's argument that Moore's guilty

plea precluded him from arguing his lack of knowledge about the use

of the handguns, Moore's counsel conceded at the sentencing hearing

that Moore's plea had been voluntary but insisted that "at the time

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that plea was made it was made with the understanding that there was

a sentencing manipulation here."

In sentencing Moore, the district court applied both enhancements.

The court determined that Moore's relevant conduct involved eleven

firearms, observing that "even after Mr. Moore contacted . . . Steve

Cain, he continued to sell to the confidential informant and to Agent

Hallsten" and "Agent Hallsten's testimony that[Moore] provided

inaccurate and misleading information to Detective Cain [went] unrebutted." In response to Moore's objection concerning his knowledge

of the use of the guns he had sold, the court first decided "as a matter

of law that the Fourth Circuit would not adopt the theory of sentencing manipulation in any case." Even if adopted, however, the court

concluded that the theory would not apply to Moore's case because

of Moore's

pattern of trading with the confidential informant and Agent

Hallsten . . . with the kinds of guns that were being bought,

not just the machine guns but the handguns which are typically used in drug transactions, with the fact that the defendant questions his record keeping, but the fact that he knew

the guns were going out of state to be sold in Pittsburgh,

Pennsylvania, and with the fact that even after he heard the

agent say that the guns were going to be traded for drugs,

whether that was as the agent was walking out the door on

the 9th or whether it was in the course of a fuller conversation, he continued to sell guns to this agent and to the confidential informant who had a relationship with this agent.

After the district court so resolved the sentencing issues, Moore persisted in tendering his guilty plea, and the court accepted it. The court

then sentenced Moore to 21 months imprisonment, the minimum

under the applicable guideline range.

This appeal followed.

II

On appeal, Moore argues first that the district court erred in accepting his guilty plea because he did not have the mens rea required by

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18 U.S.C. § 924(h). While conceding that Agent Hallsten had told

him that he intended to trade the handguns he was purchasing for

drugs, Moore maintains that he could not have known that the firearms would be so used because in fact they never would be so used.

And mistaken belief, Moore submits, does not constitute knowledge

for purposes of § 924(h).

Because Moore voluntarily pled guilty and does not seek to withdraw his plea, his challenge to his § 924(h) conviction is not cognizable on appeal. As we explained in United States v. Willis, 992 F.2d

489, 490 (4th Cir.), cert. denied, 510 U.S. 857 (1993), a valid guilty

plea waives a defendant's right to challenge the legal or factual basis

for his conviction.

Even if preserved, Moore's argument is untenable. In essence,

Moore's defense amounts to a claim of factual impossibility: Because

the guns he sold never would actually be used in a drug crime, he

could not have known that they would be used in a drug crime. In

United States v. Barton, 32 F.3d 61, 67 (4th Cir. 1994), however, we

recognized that courts routinely reject factual impossibility defenses

absent a strong indication of congressional intent to allow them, and

18 U.S.C. § 924(h) does not evince such a clear purpose. Thus, we

affirmed the defendant's § 924(h) conviction in United States v.

Harrison, 37 F.3d 133, 137 (4th Cir. 1994), even though he had sold

guns only to undercover government agents. Furthermore, because

one can never have actual knowledge about future events, Moore's

understanding in this case about the use of the handguns he sold is the

same understanding that he would have acquired from a purchaser

who truly intended to use the guns in drug trafficking.

III

Moore also contends that the district court mistakenly attributed to

him eleven guns, rather than six, and, therefore, erroneously enhanced

his sentence three levels, rather than two. Moore maintains that the

government committed "sentencing manipulation" by continuing to

engage in controlled gun purchases with him after he had offered his

cooperation to Fairmont Detective Steve Cain on December 16, 1993.

According to Moore, he was operating under the subjective but mistaken belief that he was assisting the police in a sting operation when

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he sold the five guns to undercover government agents on and after

December 16.

This court has not decided whether sentencing manipulation can

ever justify a downward departure but did observe in United States v.

Jones, 18 F.3d 1145, 1154 (4th Cir. 1994), that, if recognized, the theory would require proof of "outrageous government conduct." Such

conduct has not been presented in this case. Although Detective Cain

told Moore to stall the would-be machine gun purchasers, he also

repeatedly told Moore not to do anything illegal. Moreover, Detective

Cain never arranged for Moore to cooperate with police, but merely

told Moore that he would get back to him concerning his offer to

cooperate. For his part, Moore provided inaccurate information to

Detective Cain; he never took up Cain's offer to come in and sign a

statement concerning the information he had provided over the telephone; and after December 29, he failed to report any of his transactions with Agent Hallsten or the confidential informant, including the

continuing discussions about machine guns and the two final handgun

sales.

Accordingly, we affirm the judgment of the district court.

AFFIRMED

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