NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0553n.06

                                            No. 19-6109

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                     FILED
                                                                                   Sep 28, 2020
UNITED STATES OF AMERICA,                      )                               DEBORAH S. HUNT, Clerk
                                               )
       Plaintiff-Appellee,                     )
                                               )        ON APPEAL FROM THE
v.                                             )        UNITED STATES DISTRICT
                                               )        COURT FOR THE EASTERN
KANE JACQUES MALONE,                           )        DISTRICT OF TENNESSEE
                                               )
       Defendant-Appellant.                    )        OPINION
                                               )


BEFORE: NORRIS, NALBANDIAN, and READLER, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. Defendant Kane Malone appeals the seventy-month

sentence he received after pleading guilty to being a felon in possession of a firearm in violation

of 18 U.S.C. § 922(g)(1). Defendant argues that the district court improperly applied a sentencing

guidelines enhancement and that his sentence was procedurally unreasonable. We affirm.

                                                   I.

       Police officers were called to a Chattanooga, Tennessee, hotel to investigate an alleged

aggravated assault. The victim stated that defendant fired a handgun at her second-floor hotel room

from the parking lot below. Officers recovered a spent nine-millimeter shell casing near where the

defendant was said to have fired, and the officers observed bullet holes in the side of the hotel near

her room.
Case No. 19-6109, United States v. Malone


       The officers located defendant less than a half-mile away from the hotel at a gas station

where he was removing his clothing. On the ground, officers located pants, socks, and a High Point

nine-millimeter handgun with three rounds remaining in the magazine. Its serial number had been

obliterated.

       Defendant waived his Miranda rights and told law enforcement that the recovered handgun

was his. He first stated that the gun should be in his name but corrected himself to say that it could

not be in his name because he was a felon. Prior to this incident, defendant had been convicted of

at least the following felony charges: aggravated burglary, attempting aggravated burglary, and

criminal simulation.

       Defendant was initially charged for aggravated assault based on shooting at the hotel and,

after being booked on that charge, another unrelated arrest warrant was issued for aggravated

robbery. Both of these state charges were dismissed, and defendant was charged federally with

one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

       The probation officer calculated the guidelines sentence this way: a base offense level of

fourteen under USSG § 2K2.1(a)(6); an additional four levels under USSG § 2K2.1(b)(4)(B)

because the firearm’s serial number was obliterated; an additional four levels under USSG

§ 2K2.1(b)(6)(B) because defendant possessed the firearm in connection with another felony

offense; and minus three levels under USSG § 3E1.1(a) & (b) for acceptance of responsibility.

This yielded a total offense level of nineteen. Defendant’s criminal history score was eighteen,

resulting in a criminal history category of VI, and a guideline range of sixty-three to seventy-eight

months’ imprisonment. At sentencing, counsel for defendant agreed that the guidelines were

calculated correctly.




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Case No. 19-6109, United States v. Malone


       Defendant filed a motion for downward variance, seeking a sentence of sixty months,

which the government did not oppose. But the district court denied the motion, stating at the

hearing that a within-guidelines sentence could address the issues raised by defendant. The court

did observe that “a sentence at the low end of the guidelines would be appropriate here.” The court

then imposed a sentence of seventy months, which is just below the exact midpoint of the

guidelines range: seventy and a half months. Defendant’s counsel did not object to this purported

inconsistency at sentencing.

       Defendant now appeals, claiming that (1) the sentencing enhancement for the obliterated

serial number was improperly applied because the government did not prove that defendant knew

the serial number was obliterated, and (2) defendant’s sentence was procedurally unreasonable

because the district court did not explain why it imposed a sentence near the midpoint of the range

after saying the low end of the range would be appropriate.

                                                 II.

       We typically review de novo the district court’s application of the sentencing guidelines

when, as here, the facts are undisputed. See United States v. Murphy, 

, 848 (6th Cir.

1996). The government argues that we should review only for plain error, because defendant did

not raise the claim below. But if the district court applied the sentencing guidelines incorrectly,

that most likely would constitute plain error. See Rosales-Mireles v. United States, 

,

1907 (2018). We need not resolve the standard of review question, because the district court’s

application of the sentencing enhancement was correct. As to the claim of procedural error,

because defendant did not object at sentencing, the review is for plain error. See United States v.

Jackson, 

, 236 (6th Cir. 2017).




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Case No. 19-6109, United States v. Malone


A.     Sentencing Guidelines Enhancement

       The district court increased defendant’s offense level by four because the serial number of

the firearm he possessed was obliterated. The relevant sentencing guideline instructs that if the

firearm “(A) was stolen, increase by 2 levels; or (B) had an altered or obliterated serial number,

increase by 4 levels.” USSG § 2K2.1(b)(4). The guideline commentary explains that “[s]ubsection

(b)(4) applies regardless of whether the defendant knew or had reason to believe that the firearm

was stolen or had an altered or obliterated serial number.” USSG § 2K2.1 cmt. n.8(B).

       “[C]ommentary in the Guidelines Manual that interprets or explains a guideline is

authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a

plainly erroneous reading of, that guideline.” Stinson v. United States, 

, 38 (1993). But

commentary may not expand the scope of a guideline. United States v. Havis, 

, 386

(6th Cir. 2019) (en banc) (invalidating commentary purporting to expand the definition of a

controlled substance offense to include “attempt” crimes).

       Defendant argues that Rehaif v. United States, 

(2019) instructs that a mens

rea element be read into USSG § 2K2.1(b)(4), and so, like in Havis, the guideline commentary

striking the mens rea requirement impermissibly expands the scope of the guideline’s text, as

interpreted.

       This is not a new argument. See, e.g., 

. In Murphy, the district court

increased Jerome Murphy’s sentence based on a two-level increase under USSG § 2K2.1(b)(4)

because the firearm Murphy possessed had been stolen.

The government conceded that

there was no evidence Murphy knew the firearm was stolen.

case, Murphy’s

argument rested on the principle that “when a statute is silent as to the mental state required for

the commission of an offense, the common law presumes the existence of a mens rea element.”



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Case No. 19-6109, United States v. Malone

(citing Staples v. United States, 

, 618–19 (1994) (“[W]here . . . dispensing

with mens rea would require the defendant to have knowledge only of traditionally lawful

conduct . . . the usual presumption that a defendant must know the facts that make his conduct

illegal should apply.”). This court rejected Murphy’s argument, noting, “We simply find no basis

for expanding the holding of Staples, dealing only with the requisite intention for conviction of a

crime, to include sentencing enhancements within its scope; indeed, the two areas are

fundamentally distinct.”

-49. The court observed that “every other court to consider the

question has concluded that the lack of a mens rea requirement in U.S.S.G. § 2K2.1(b)(4) comports

with constitutional requirements.”

(collecting cases).

       Defendant’s argument is indistinguishable from the argument presented in Murphy, and so

the question is whether the combination of Rehaif and Havis compel a different result. They do

not. Defendant correctly notes that there remains a presumption in favor of requiring a mens rea

element in criminal statutes. 

(citing 

). There,

Rehaif entered the United States on a student visa that was terminated when his university

dismissed him for poor grades.

Rehaif later fired weapons at a firing range and was

convicted of “possessing firearms as an alien unlawfully in the United States.”

the Court was whether the government was required to prove that Rehaif knew about his

unlawful immigration status.

The Court answered in the affirmative, reasoning that

“[w]ithout knowledge of that status, [Rehaif] may well lack the intent needed to make his behavior

wrongful. His behavior may instead be an innocent mistake to which criminal sanctions normally

do not attach.”

       Here, defendant pleaded guilty to being a felon in possession of a firearm. To be analogous

to Rehaif, the question would have to be whether defendant knew that he previously had been



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Case No. 19-6109, United States v. Malone


convicted of a felony at the time he possessed the firearm. But defendant confirmed in writing that

he knew he was a felon at the time of the incident. R. 33 (Rehaif Stipulation) (Page ID #247).

        The presumption of mens rea in Rehaif is not inconsistent with 

(differentiating “the requisite intention for conviction of a crime” from “sentencing

enhancements”). USSG § 2K2.1(b)(4) does not contain a mens rea requirement—it is silent. And

Rehaif does not require (or even imply) that the presumption of a mens rea element applies to

sentencing guidelines. Unlike in Havis, here the commentary to USSG § 2K2.1(b)(4) is wholly

consistent with the absence of mens rea in the guideline text. The commentary does hardly any

work at all, at most confirming the guideline’s omission of a mens rea element. And so Havis is

no help to defendant. The mens rea commentary to USSG § 2K2.1(b)(4) properly interprets (not

enlarges) the guideline, and therefore survives Havis. See United States v. Gibson, 817 F. App’x

202, 203 (6th Cir. 2020) (“[B]ecause the relevant commentary is an interpretation of

§ 2K2.1(b)(4)(A), not an addition or modification to it, we find that the enhancement does not

include a scienter requirement, even after Havis.”); see also United States v. Sands, 

,

713 (6th Cir. 2020) (noting that the firearm serial number enhancement is strict liability and does

not require showing that defendant knew or had reason to know that the serial number was altered

or obliterated).

        The district court’s application of the sentencing enhancement was correct.


B.      Procedural Reasonableness

        Defendant also claims that the district court committed plain procedural error because it

failed to adequately explain the sentence imposed. The argument relies almost exclusively on a

district court comment at the sentencing hearing, that a sentence “at the low end of the guidelines”




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Case No. 19-6109, United States v. Malone


range—which was sixty-three to seventy-eight months—would be appropriate. Subsequently, the

court imposed a sentence of seventy months.

       The government correctly notes that the mathematical midpoint of the range is seventy and

a half months, and so seventy months is in the lower half of the range. Defendant counters by

pointing out that the district court said at the low end, not in the low end, and avers that the

conflicting statements cause confusion and diminish the perception of fairness. The district court

could have been more precise in its wording, but it does not rise to the level of plain error.

       The purpose of our review of a sentencing procedure is to “ensure that the district court

committed no significant procedural error, such as failing to calculate (or improperly calculating)

the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a)

factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence . . . .” Gall v. United States, 

, 51 (2007). The district court committed

no significant procedural error.

       The sentencing hearing included a lengthy, robust discussion of the appropriate sentence,

with the district court acknowledging some of the persuasive arguments raised by defendant in his

motion for a downward variance. But the district court also explained why it denied that motion,

emphasizing that the underlying conduct (shooting indiscriminately into an occupied hotel room)

was especially dangerous and deserving of punishment. Based in part on arguments raised by

defendant, the court also recommended that defendant receive substance abuse treatment, a mental

health evaluation, and mental health treatment if appropriate.

       Even if, for the sake of argument, the district court misspoke when it mentioned “at the low

end of the range,” that does not rise to the level of plain error. See, e.g., United States v. Gibbs,

461 F. App’x 419, 421 (6th Cir. 2012). Overall, we are satisfied that the court in its sentencing



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Case No. 19-6109, United States v. Malone


procedure “considered the parties’ arguments and [had] a reasoned basis for exercising [its] own

legal decisionmaking authority” in determining defendant’s sentence. Rita v. United States,

, 356 (2007).

                                              III.

       The district court judgment is affirmed.




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