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Eighth Circuit Announces ‘Use of Minor’ Enhancement Inapplicable for Merely Buying Firearm From Minor

Demetrick Roberts purchased a firearm from a minor for some marijuana and $100. He was charged with and pleaded guilty to being a felon in possession of a firearm, under 18 U.S.C. § 922(g). At sentencing, the U.S. District Court for the Southern District of Iowa recognized that the law was not “real well developed” on whether someone “uses” a minor “to commit” a felon-in-possession offense by merely purchasing a firearm from them. Nevertheless, the court still applied the two-point enhancement and sentenced Roberts to eight years in federal prison.

On appeal, Roberts challenged the use of a minor enhancement. Under U.S.S.G. § 3B1.4, the two-level enhancement applies if a defendant “used or attempted to use a person less than 18 years of age to commit the offense.” The Court noted that the question of “whether a prohibited person ‘uses’ a minor “to commit’ a felon-in-possession offense by acquiring a firearm from a minor” is one of first impression in the Eighth Circuit. 

The Guidelines define “used” as “directing, commanding, encouraging, intimidating, counseling, training, procuring, recruiting, or soliciting” a minor for the crime. § 3B1.4, comment. (n. 1). The Eighth Circuit has held that there must be “some affirmative act beyond mere joint participation in a crime with a minor” to qualify under § 3B1.4. United States v. Fisher, 861 F.3d 802 (8th Cir. 2017). According to the Court, there must be evidence that the defendant affirmatively acted to involve a minor in a crime. United States v. Paine, 407 F.3d 958 (8th Cir. 2008).

The Eighth Circuit has ruled that the enhancement applies where a crack dealer “mentored” a minor to learn the “game” of crack dealing. United States v. Birdine, 515 F.3d 842 (8th Cir. 2008). It came to the same conclusion where a bank robber used his son for “moral support” during the robbery, even though the child wasn’t aware of the crime. Paine. However, it also rejected the enhancement where a minor merely sat in a getaway car during a bank robbery. Fisher.

The Court found that, “on the limited record here” and arguments in Roberts’ appeal, he engaged in an “arm’s-length transaction with a minor: he traded marijuana and cash to the minor” for a firearm. The Court concluded that “Roberts did not ‘use’ [the minor] in any broader criminal activity involving the trafficking of stolen firearms” that the minor sold him. Therefore, the two-level enhancement does not apply to Roberts.

Not stopping its discussion there, the Court went on to opine that the district court could consider under “relevant conduct” the fact the Roberts also committed the crimes of “receipt” of a firearm as a felon (in addition to possession of the firearm) and “receipt of a stolen firearm” since the firearm he purchased was stolen. This was true even though Roberts was not convicted of those offenses, and the Government never mentioned them, the Court said. The Court also reminded the district court that it “may consider that Roberts facilitated a minor’s sale of a stolen firearm ... and distributed a controlled substance to a minor,” when resentencing him without the § 3B1.4 enhancement.

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Related legal case

United States v. Roberts



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