RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0330p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY R. PALOS,

Defendant-Appellant.

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No. 19-4186

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:19-cr-00186-1—Benita Y. Pearson, District Judge.

Decided and Filed: October 15, 2020

Before: ROGERS, SUTTON, and STRANCH, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Jeffrey B. Lazarus, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Cleveland, Ohio, for Appellant. Rebecca C. Lutzko, Robert J. Kolansky, UNITED STATES 

ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

_________________

OPINION

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ROGERS, Circuit Judge. Anthony Palos pleaded guilty to being a felon in possession of 

a firearm and was sentenced to 63 months’ imprisonment. Palos makes two challenges to his 

sentence on appeal. First, he argues that one of his previous drug trafficking convictions no 

longer qualifies as a “controlled substance offense” after our decision in United States v. Havis, 

927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam), and therefore his base offense level under 

>
No. 19-4186 United States v. Palos Page 2

the Guidelines was miscalculated. The Government concedes that our reading of Havis in 

United States v. Cavazos, 950 F.3d 329 (6th Cir. 2020), is controlling on this issue and that a 

remand is warranted. Second, Palos argues that he should not have received a sentencing 

enhancement for possession of a stolen firearm because he had no knowledge that the firearm he 

possessed was stolen. But our rejection of the same contention in United States v. Murphy, 

96 F.3d 846 (6th Cir. 1996), remains good law notwithstanding the more recent decisions of 

United States v. Roxborough, 99 F.3d 212 (6th Cir. 1996), Havis, and Rehaif v. United States, 

139 S. Ct. 2191 (2019).

Police searched Palos’s Lorain, Ohio, residence on suspicion of drug trafficking and 

found narcotics, drug paraphernalia, and a firearm. Palos admitted to police that he had 

purchased the firearm “off the streets.” The firearm was later confirmed to be stolen. Palos, who 

had previously been convicted of two separate drug trafficking offenses in state court, was 

charged by a federal grand jury with being a felon in possession of a firearm, in violation of 

18 U.S.C. § 922(g)(1). Palos pleaded guilty. 

At the sentencing stage, the district court determined Palos’s two previous drug 

trafficking convictions to be “controlled substance offenses” as defined in the career offender 

Guideline, U.S.S.G. § 4B1.2. Under U.S.S.G. § 2K2.1(a)(2), a base offense level of 24 applies 

to a defendant who unlawfully possesses a firearm “subsequent to sustaining at least two felony 

convictions of . . . a controlled substance offense.” Palos conceded that his cocaine trafficking 

conviction from 2002 qualified as a controlled substance offense but asserted that his 2010 

cocaine trafficking conviction did not. The 2010 conviction involved a violation of Ohio 

Revised Code § 2925.03(A)(1), which criminalizes “knowingly . . . “sell[ing] or offer[ing] to sell 

a controlled substance.” Relying upon Havis, Palos argued that “offering to sell” cocaine was an 

attempt offense that fell outside of the definition of a “controlled substance offense” under the 

Guidelines. Thus, according to Palos, he had only one qualifying “controlled substance offense,” 

which meant that his base offense level would be 20 rather than 24. See U.S.S.G. § 2K2.1(a)(4). 

The district court rejected this argument, reasoning that an “offer to sell” is a completed offense, 

not an attempt offense, and therefore the 2010 cocaine conviction was properly counted as a 

“controlled substance offense.” 
No. 19-4186 United States v. Palos Page 3

The district court further imposed a two-level increase for Palos’s possession of a stolen 

firearm, pursuant to U.S.S.G. § 2K2.1(b)(4)(A). Palos again objected, arguing that the 

Government was required to demonstrate that Palos knew the firearm he possessed was stolen. 

The district court rejected this argument as well. Finally, the court enhanced the offense level by 

four points because Palos had possessed the firearm in connection with a drug trafficking 

offense. See U.S.S.G. § 2K2.1(b)(6)(B). After awarding Palos a three-point reduction for 

acceptance of responsibility, the district court calculated his total offense level to be 27. Palos 

was assigned a criminal history category of III, yielding an advisory Guidelines range of 87–108 

months. However, the district court varied downward three levels to impose a below-Guidelines 

sentence of 63 months’ imprisonment along with three years of supervised release. Palos timely 

appealed. 

As the Government concedes, Palos’s 2010 conviction for trafficking in cocaine does not 

qualify as a controlled substance offense in light of our decisions in United States v. Cavazos, 

950 F.3d 329 (6th Cir. 2020) and United States v. Alston, ___ F.3d ___, 2020 WL 5755465 (6th 

Cir. Sept. 28, 2020). As provided in U.S.S.G. § 4B1.2(b),

[t]he term “controlled substance offense” means an offense under federal or state 

law, punishable by imprisonment for a term exceeding one year, that prohibits the 

manufacture, import, export, distribution, or dispensing of a controlled substance 

(or a counterfeit substance) or the possession of a controlled substance (or a 

counterfeit substance) with intent to manufacture, import, export, distribute, or 

dispense.

Similar to Ohio Revised Code § 2925.03(A)(1), under which Palos was convicted, the Texas 

statute at issue in Cavazos criminalized “offering to sell a controlled substance.” 950 F.3d at 

335. We noted in Cavazos that our earlier decision in United States v. Evans, 699 F.3d 858 (6th 

Cir. 2012), “determined that ‘an offer to sell is properly considered an attempt to transfer a 

controlled substance.’” Cavazos, 950 F.3d at 336 (alteration omitted) (quoting Evans, 699 F.3d 

at 867). Because “Havis made clear that § 4B1.2’s definition of ‘controlled substance offenses’ 

does not include attempt crimes,” we held in Cavazos that “statutes that criminalize offers to sell 

controlled substances are too broad to categorically qualify as predicate ‘controlled substance 

offenses.’” Id. at 337. Cavazos is controlling here, and Palos is thus entitled to resentencing on 

remand.
No. 19-4186 United States v. Palos Page 4

Although Palos’s base offense level was miscalculated, the district court correctly applied 

the two-level enhancement for a stolen firearm. Section 2K2.1(b)(4) of the Guidelines provides:

[i]f any firearm (A) was stolen, increase by 2 levels; or (B) had an altered or 

obliterated serial number, increase by 4 levels.

There is no dispute that Palos possessed a firearm and that the firearm was stolen. The plain 

language of the Guideline would therefore appear to apply in this case.

Palos nonetheless contends that § 2K2.1(b)(4) contains a scienter requirement, and that 

because Palos did not know that his gun was stolen, he cannot be subject to the enhancement. 

But our decisions have held to the contrary. In United States v. Murphy, 96 F.3d 846, 849 (6th 

Cir. 1996), we upheld the imposition of the stolen firearm enhancement under § 2K2.1(b)(4)(A) 

where the defendant did not know that the firearm he possessed was stolen. In doing so, we 

rejected the defendant’s argument that the lack of a mens rea requirement in § 2K2.1(b)(4) 

violated due process. Id. While the defendant in Murphy conceded the absence of a mens rea 

requirement in § 2K2.1(b)(4), we nevertheless took notice of the commentary to the Guidelines, 

which stated that the enhancement applies regardless of whether the defendant knew or had 

reason to believe that the firearm was stolen. Id. at 848 (citing U.S.S.G. § 2K2.1 cmt. n.19).1 

We have since relied upon Murphy to hold that § 2K2.1(b)(4) is a strict liability enhancement 

with respect to a stolen firearm. See United States v. Gibson, 817 F. App’x 202, 204–05 (6th Cir. 

2020).

Our unpublished decision in Gibson rejected the precise argument that Palos presents to 

us: that our en banc decision in Havis changes things in light of our post-Murphy decision in 

United States v. Roxborough, 99 F.3d 212 (6th Cir. 1996). We reject the argument for many of 

the same reasons that we set forth in Gibson.

In Roxborough, the defendant gun dealer pleaded guilty to violating federal law by 

selling firearms away from his licensed premises. Id. at 213. Two firearms traced to the 

defendant were found to have obliterated serial numbers. Id. The district court imposed the 

1The comment note in existence at the time Murphy was decided is substantively identical to the one in the 

current version of the Guidelines, located in U.S.S.G. § 2K2.1 cmt. n.8(B). 
No. 19-4186 United States v. Palos Page 5

four-level enhancement in § 2K2.1(b)(4)(B), despite the absence of evidence showing that the 

firearms’ serial numbers had been obliterated at the time defendant had sold them. Id. We 

vacated the defendant’s sentence, holding that a lack of evidence linking the defaced firearms to 

the crime of conviction precluded application of § 2K2.1(b)(4). Id. at 214–15. In reaching this 

conclusion, we noted, “we have found nothing that persuades us that the § 2K2.1(b)(4) 

enhancement is, as the district court held, to be imposed by way of strict, or virtually strict, 

liability.” Id. at 214. Based on this language, Palos argues that Roxborough recognized a mens 

rea requirement for § 2K2.1(b)(4). But the “strict liability” rejected in Roxborough was far 

broader than the strict liability accepted in Murphy. Imposing strict liability in Roxborough

would have increased the punishment for firearms with numbers obliterated after the illegal sale, 

and presumably firearms stolen after they were possessed by the defendant. Rejecting that 

extreme version of “strict liability” obviously says nothing about strict liability for possessing or 

selling a firearm that has previously been stolen or had its serial number obliterated. This 

explains why we were not constrained by Roxborough when we held recently that the 

enhancement for an altered firearm in § 2K2.1(b)(4)(B) does not have a knowledge requirement 

regarding a previously altered serial number. See United States v. Sands, 948 F.3d 709, 713 (6th 

Cir. 2020).

The issue of attenuation between the firearm and the crime of conviction that was held 

dispositive in Roxborough is thus not present in this case. There is no dispute that Palos’s 

firearm was stolen at the time Palos unlawfully possessed it. We have twice distinguished 

Roxborough on this basis in upholding the imposition of the stolen firearm enhancement for 

defendants convicted of being felons in possession of a firearm. See Gibson, 817 F. App’x at 

204–5; United States v. Burns, 109 F. App’x 52, 57 (6th Cir. 2004).

Moreover, despite Palos’s argument to the contrary, Havis does not require 

reconsideration of our precedents holding that § 2K2.1(b)(4) is a strict liability enhancement. 

Havis held that the text of the Guidelines controls in cases where it conflicts with the Guidelines’ 

commentary. 927 F.3d at 386. At issue in Havis was the commentary to the career offender 

Guideline, U.S.S.G. § 4B1.2, which stated that a “controlled substance offense” included attempt 

crimes. Id. at 385. Because the text of the Guideline clearly excluded attempt crimes from the 
No. 19-4186 United States v. Palos Page 6

definition of a “controlled substance offense,” the commentary stating otherwise was not 

binding. Id. at 386. Applying Havis to this case, Palos contends that the commentary to § 2K2.1 

stating that the stolen firearm enhancement “applies regardless of whether the defendant knew or 

had reason to believe that the firearm was stolen” “improperly expands the [G]uideline[’s] text.” 

We rejected this argument in Gibson and do so again here. In Gibson, we explained that,

“[w]hile the Application Note in Havis added a new category of crime to an exhaustive list 

contained in the Guideline text itself, here, the enhancement’s text appears to bear the strict 

liability interpretation contained in the commentary.” 817 F. App’x, at 204. Indeed, numerous 

indicators point strongly in favor of this strict liability interpretation. First, there is nothing in the 

language “[i]f any firearm [] was stolen, increase by 2 levels,” that would hint at a knowledge 

requirement. U.S.S.G. § 2K2.1(b)(4). Further, the presence of express knowledge requirements 

in other parts of § 2K2.1 suggests that the Sentencing Commission intentionally left out such a 

requirement in § 2K2.1(b)(4). In § 2K2.1(b)(6), for example, the offense level is increased by 

four levels if the defendant “possessed or transferred any firearm or ammunition with knowledge, 

intent, or reason to believe that it would be transported out of the United States” (emphasis 

added). Moreover, this construction of § 2K2.1(b)(4) is sensible in light of the underlying 

purposes of the Guideline:

The strict liability enhancement for possession of a stolen firearm is rationally 

related to the legitimate governmental goal of crime prevention: [the stolen 

firearm enhancement] was promulgated on the premise that “stolen firearms are 

used disproportionately in the commission of crimes.” Further, an ex-felon who 

obtains a stolen firearm is more culpable than one who legally obtains a firearm.

Murphy, 96 F.3d at 849 (quoting United States v. Goodell, 990 F.2d 497, 499 (9th Cir. 1993)). 

Finally, as we pointed out in Gibson, circuit courts, including ours, have unanimously recognized 

the absence of a scienter requirement in § 2K2.1(b)(4). See 817 F. App’x at 205 (collecting 

cases). Several of these circuits have gone so far as to say that the strict liability nature of 

§ 2K2.1(b)(4) is “clear and unequivocal.” United States v. Mobley, 956 F.2d 450, 453 (3d Cir. 

1992); accord Goodell, 990 F.2d at 499 n.2; United States v. Schnell, 982 F.2d 216, 220–22 (7th 

Cir. 1992).
No. 19-4186 United States v. Palos Page 7

Palos’s final argument—that the Supreme Court’s recent decision in Rehaif, 139 S. Ct. at 

2191, counsels in favor of finding a knowledge requirement in § 2K2.1(b)(4)—also lacks merit. 

Rehaif established a mens rea requirement for convictions under 18 U.S.C. § 922(g), a statute 

without an express mens rea element. 139 S. Ct. at 2200. As a basis for its decision, the Court in 

Rehaif invoked “the presumption in favor of scienter even when Congress does not specify any 

scienter in the statutory text.” Id. at 2195. Palos contends that this presumption should apply 

with equal force to the text of § 2K2.1(b)(4), which he says is also silent on the issue of mens 

rea. However, we have observed that when it comes to the existence of a mens rea element, 

statutes and the Sentencing Guidelines are “fundamentally distinct.” Murphy, 96 F.3d at 848–49. 

Accordingly, this court in Murphy declined to extend to § 2K2.1(b)(4) a similar mens rea 

presumption for possession of an unregistered firearm under 26 U.S.C. § 5861(d). We noted that 

the mens rea presumption for § 5861(d), first articulated in Staples v. United States, 511 U.S. 

600, 619 (1994), “deal[t] only with the requisite intention for conviction of a crime” and thus 

should not “include sentencing enhancements within its scope.” Murphy, 96 F.3d at 848–49. 

This distinction between statutes and Guideline enhancements is logical in light of the 

longstanding principle that “it is not unusual to punish individuals for the unintended 

consequences of their unlawful acts.” Dean v. United States, 556 U.S. 568, 575 (2009). As the 

Seventh Circuit has explained, the mens rea requirement in 18 U.S.C. § 922(g) “simply reflects 

Congress’ desire not to punish ordinary, unwitting purchasers or users of firearms who would 

have no reason to inquire so closely into the condition of a gun.” Schnell, 982 F.2d at 220. In 

contrast, a felon who knowingly purchases a firearm “is not engaging in ‘apparently innocent 

conduct,’ whether or not he knows that the gun is stolen or altered.” Id. at 221 (quoting Liparota 

v. United States, 471 U.S. 419, 426 (1985)). Accordingly, the presence of a scienter requirement 

in § 922(g), as determined by the Court in Rehaif, is not helpful to Palos.

For the reasons set forth above, we reverse in part the judgment of the district court and 

remand for resentencing. We affirm the district court’s decision to impose a two-level 

enhancement for possession of a stolen firearm under U.S.S.G. § 2K2.1(b)(4)(A).