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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10429
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:16-cr-20487-WPD-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

JEAN EMMANUEL DUVAL,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (October 3, 2017)

Before HULL, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      After a jury trial, defendant Jean Duval appeals his convictions and total 21-

month sentence for three counts of making a false statement in connection with the

acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6). As to his

convictions, Duval argues that the government failed to prove that he made a false

statement on the Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”)

forms he filled out when buying the firearms. As to his sentence, Duval argues

that the district court improperly applied an eight-level enhancement under

U.S.S.G. § 2K2.1(a)(4)(B) and that his sentence is substantively unreasonable.

After review, we affirm.

                    I. SUFFICIENCY OF THE EVIDENCE

      We review de novo the sufficiency of the evidence to support a conviction,

viewing all evidence and drawing all inferences in favor of the verdict. United

States v. Isaacson, 

, 1303 (11th Cir. 2014). We will not overturn a

jury’s verdict “if any reasonable construction of the evidence would have allowed

the jury to find the defendant guilty beyond a reasonable doubt.” United States v.

Grzybowicz, 

, 1304 (11th Cir. 2014) (quotation marks omitted).

A.    18 U.S.C. § 922(a)(6) Offenses

      To sustain a conviction under 18 U.S.C. § 922(a)(6), the government must

prove beyond a reasonable doubt that: (1) the defendant knowingly made; (2) a

false or fictitious written statement in connection with the purchase of firearms;


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(3) intended to deceive or likely to deceive a licensed firearms dealer; (4) and the

false statement was a fact material to the lawfulness of the sale or disposition of the

firearm. United States v. Ortiz, 

, 1036 (11th Cir. 2003). Here,

Duval challenges only the second element, contending that the government

presented insufficient evidence that he made a false statement when he indicated

on ATF Form 4473 that he was the “actual buyer” of the ten firearms, as charged

in Counts 2, 3, and 4.

      Under § 922(a)(6), the identity of the buyer is a fact material to the

lawfulness of the sale of a firearm. 

see also United States v. Frazier,

, 1279 (11th Cir. 2010). Consequently, § 922(a)(6) applies to “straw

purchases” of firearms from federally licensed firearms dealers. 

. A straw purchase occurs when an intermediary, called “the straw,” buys

the firearm for someone else. Abramski v. United States, ___ U.S. ___, 

, 2266-68 (2014). In a straw purchase, the “actual buyer” for § 922(a)(6)

purposes is the person for whom the straw is buying the firearm, and the identity of

the actual buyer is material, regardless of whether the actual buyer is legally

eligible to own a firearm. 

2272-74; 

-80.

Thus, any time a straw purchaser is buying a firearm from a federally licensed

firearms dealer and states on ATF Form 4473 that he is the “actual buyer,” he

violates § 922(a)(6). 

, 

.


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B.     Trial Evidence

       Here, the government presented sufficient evidence from which the jury

could find beyond a reasonable doubt that Duval, on three occasions and in

connection with the purchase of ten firearms from federally licensed firearms

dealers, falsely stated on ATF Form 4473 that he was the actual buyer of the

firearms because he fully intended to resell those firearms to other individuals,

primarily a man named D-Dog.

       According to the trial evidence, over a two-week period, from February 25,

2016 to March 9, 2016, Duval bought fourteen 9mm pistols from three federally

licensed firearms dealers. 1 Each time, Duval indicated on the ATF Form 4473 that

he was the actual buyer of the pistols. Duval spent a total of $5,600 in cash on the

firearms, although he had earned only $5,686 during the first quarter of 2016.

Moreover, Duval, who worked as an unarmed security guard at Universal

Protection Services, failed to report to work on February 22, 2016, just days before

he began buying the firearms.

       When ATF agents first met with Duval on April 7, 2016, to ask him about

his multiple firearms purchases, Duval’s story changed several times. First, Duval

said he had purchased five firearms with his $5,000 income tax refund and that he

still had the firearms in his residence. Later, Duval stated that he had purchased

       1
         The jury acquitted Duval of making a false statement in connection with the purchase of
four firearms, as charged in Count 1.
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between 10 and 12 firearms, but he had sold some of them. At one point, Duval

admitted he was selling three or four firearms a week to his friends and to friends

of his friends. Duval told the agents he had prepared bills of sale that the agents

could view at his home. When the ATF agents proposed going to Duval’s home to

inspect the guns and bills of sale, however, Duval admitted that he had sold all but

one of the firearms.

      At a second meeting at Duval’s home on April 11, 2016, Duval told ATF

agents he could not find the bills of sale and could produce only one firearm.

Duval said he had sold a Taurus pistol to a man named D-Dog for $425. Duval

admitted that he sold several firearms to unnamed purchasers in store parking lots,

and then sold the remainder of the firearms “through D-Dog.” Duval also admitted

that he continued to buy firearms to resell them because he needed to make a profit

and that “people on the streets always need guns.” Although Duval admitted

buying the firearms to resell them, he denied buying the firearms for a particular

person.

      On June 27, 2016, in a post-arrest interview, Duval claimed that he

purchased the firearms for himself, but that after he was terminated from

Universal, he had to sell the firearms for financial reasons. This statement was

inconsistent with the fact that Duval left his job at Universal of his own accord on

February 22, 2016, before he began to purchase the firearms on February 25, 2016.


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Duval explained to the ATF agents that he knew D-Dog from school. Duval met

D-Dog “on the streets” and D-Dog saw one of Duval’s guns. D-Dog said he

wanted to purchase one. Duval asked D-Dog if he was a felon, and when D-Dog

said he was not, Duval sold him a gun. When D-Dog said he knew other people

who also wanted guns, Duval arranged through D-Dog to meet those people in

store parking lots to make the firearm transactions, and then gave D-Dog a little bit

of money out of the proceeds.

      From this evidence, the jury could reasonably find that Duval was acting as

a straw purchaser, buying and delivering firearms at D-Dog’s request for other

people D-Dog knew wanted firearms or for other buyers “on the streets.”

Although Duval told agents that he initially purchased the firearms for himself and

only later decided to sell them due to financial necessity after he lost his job, the

jury was free to disbelieve Duval, which it clearly did. See United States v.

Williams, 

, 1323 (11th Cir. 2004) (explaining that the jury is free to

choose between reasonable constructions of the evidence, and this Court must

construe credibility choices to support the jury’s verdict). Among other things,

Duval quit his job at Universal on February 22, 2016, before he began purchasing

the firearms on February 25, 2016. Although Duval claimed to have financial

problems, he spent his entire $5,000 tax refund, as much as he had earned in the

last three months, on the firearms. And, all fourteen firearms were 9mm pistols. A


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reasonable jury could infer from this evidence that Duval was not purchasing the

firearms for his own collection, particularly since he bought duplicates of several

firearms. Finally, Duval admitted to ATF agents during informal interviews that

he bought firearms to resell them and that he sold most of the firearms “through D-

Dog.”

        Further, there were other inconsistencies in Duval’s statements to ATF

agents that a reasonable jury could have considered as substantive evidence of his

guilt. See United States v. Hughes, 

, 1385 (11th Cir. 2016), cert.

denied, 

(2017) (explaining that a statement by a defendant,

including a pre-trial exculpatory statement, if disbelieved by the jury, may be

considered substantive evidence of his guilt). Duval’s own story changed several

times as he was questioned by the agents.2 Although Duval told the agents that he

purchased the firearms with his tax refund, he purchased six firearms in February

2016, before he received his tax refund in March 2016. While Duval consistently

stated that he had not purchased the firearms for anyone else, he also told the




        2
        Duval points out that the two pre-arrest interviews were not recorded. But we must
assume the jury answered all credibility questions in favor of the verdict and thus that the jury
believed the testimony of ATF agents about what Duval said during his unrecorded interviews.
See 

. Further, there is no merit to Duval’s claim that his unrecorded
interview statements that he planned to resell the firearms were the only evidence of his guilt.
Indeed, there was compelling circumstantial evidence, recounted above, that corroborated his
interview statements, not least of which was that he quickly resold all but one of the firearms to
others.
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agents that he continued to buy more firearms after the first sale because he needed

to make a profit and “people on the streets always need guns.”

      From all of this evidence the jury could have reasonably found that Duval

purchased the ten firearms, as charged in Counts 2, 3 and 4, either for D-Dog and

his associates or with the intent to resell them to others “on the streets,” and thus

made a false statement on the Form 4473 when he indicated that he was the actual

buyer of the firearms.

      Duval argues that he was an “actual buyer” as a matter of law because,

although he intended to resell the firearms, he had not yet identified a specific

buyer when he purchased the firearms. As support, Duval notes that in Abramski,

the Supreme Court stated that Congress intended to leave the “secondary market”

for firearms largely unregulated. See Abramski, ___ U.S. at ___, 134 S. Ct. at

2271. Duval’s is not a situation in which a true buyer later sold his firearms on the

secondary market, but rather a sham transaction that essentially asked the dealer to

verify the identity of, and run a background check on, the wrong person. See

(explaining that to read the statutory terms “person”

and “transferee” in § 922 narrowly would render the provisions of the statute

ineffectual “because the identification and background check would be of the

wrong person”).




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      Even if Duval was not acting as a classic straw purchaser who is fronted the

money for the firearm transaction ahead of time by a specific buyer, his actions

nonetheless qualified as a crime under § 922(a)(6) because Duval could only be the

“actual buyer” for purposes of Form 4473 if he intended to keep the firearms for

himself or to give them as a gift. See 

. The jury reasonably

inferred from the trial evidence that Duval did not purchase the firearms for

himself or as a gift to another, but rather for the sole purpose of turning around and

selling them to another person, even though that person’s identity may have been

unclear at the time. Thus, Duval’s statements on Form 4473 that he was the actual

buyer were misrepresentations under § 922(a)(6). See 

the

defendant misrepresented that he was the actual buyer because at the time he

completed the Form 4473 he intended to deliver and sell them to an as-yet

unidentified buyer).

                             II. REASONABLENESS

      “We review the reasonableness of a sentence for an abuse of discretion using

a two-step process.” United States v. Cubero, 

, 892 (11th Cir. 2014)

(quotation marks omitted). We look first at whether the sentencing court

committed any significant procedural error, such as misapplying the guidelines or

treating them as mandatory, failing to consider the 18 U.S.C. § 3553(a) sentencing




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factors, choosing a sentence based on clearly erroneous facts, or failing to

adequately explain the sentence imposed. 

we examine whether the sentence is substantively unreasonable in

light of the § 3553(a) factors and the totality of the circumstances. 

challenging the sentence bears the burden to show it is unreasonable. United

States v. Alvarado, 

, 496 (11th Cir. 2015). The weight given to any

particular § 3553(a) factor is within the district court’s discretion, and this Court

will not substitute its judgment for that of the district court. 

reverse a

sentence only if we are “left with the definite and firm conviction that the district

court committed a clear error of judgment in weighing the § 3553(a) factors by

arriving at a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case.” United States v. Pugh, 

, 1191 (11th Cir. 2008)

(quotation marks omitted).

       As to procedural reasonableness, Duval contends the district court

misapplied an 8-level enhancement under U.S.S.G. § 2K2.1(a)(4)(B). A

defendant’s base offense level for prohibited transactions involving firearms is 20


       3
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
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if: (1) the offense involved a semiautomatic firearm that is capable of accepting a

large capacity magazine or a firearm described in 26 U.S.C. § 5845(a); and (2) the

defendant committed the offense with knowledge, intent, or reason to believe that

the offense would result in the transfer of a firearm or ammunition to a prohibited

person. U.S.S.G. § 2K2.1(a)(4)(B). If none of the potential special circumstances

apply, a defendant’s base offense level is 12. See 

      Duval challenges the 8-level enhancement for several reasons, some of

which he raised at sentencing and some of which he did not. Specifically, Duval

argues that the 8-level increase did not apply because (1) the nine-millimeter

pistols he purchased were not either semiautomatic firearms that were capable of

accepting large-capacity magazines or firearms described in 26 U.S.C. § 5845(a);

(2) there was insufficient proof that he intended to transfer the firearms to a

prohibited person at the time that he purchased them, even if there was sufficient

evidence that he had, in fact, sold the firearms to prohibited persons; and (3) there

was no evidence as to whom he sold the firearms.

      The problem for Duval is that, at sentencing, the district court explicitly

stated that regardless of whether the advisory guidelines range was 21 to 27

months (without the 8-level enhancement) or 51 to 63 months (with that

enhancement), the district court believed that a 21-month sentence was the

appropriate sentence. We need not decide a guidelines issue or remand for a new


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sentencing when the district court, as here, expressly states that it would have

imposed the same sentence regardless of its ruling on the guidelines issue, and the

sentence would have been reasonable assuming the guidelines issue was decided in

the defendant’s favor. See United States v. Dean, 

, 1232 (11th Cir.

2008); United States v. Keene, 

, 1349-50 (11th Cir. 2006). “In

determining whether [the sentence imposed] is reasonable we must assume that

there was a guidelines error—that the guidelines issue should have been decided in

the way the defendant argued and the advisory range reduced accordingly—and

then ask whether the final sentence resulting from consideration of the § 3553(a)

factors would still be reasonable.” 

.

      Here, any error the district court may have made in calculating Duval’s base

offense level under § 2K2.1(a)(4)(B) was harmless. See 

The

district court stated that regardless of whether it imposed the higher base offense

level under § 2K2.1(a)(4)(B), it would have imposed a 21-month total sentence.

Accordingly, so long as the resulting total sentence was substantively reasonable

assuming that the district court erred in calculating the guidelines range, any error

by the district court was harmless. 

For the reasons that follow, we

conclude Duval’s 21-month total sentence was substantively reasonable, even if

the advisory guidelines range was 21 to 27 months.




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      The district court explicitly considered several § 3553(a) factors at

sentencing, including the nature and circumstances of the offenses, Duval’s history

and characteristics, and the need for the sentence to reflect the seriousness of the

offenses. The district court also discussed several mitigating factors in Duval’s

history and characteristics, including Duval’s history as a security guard and that

he was a first-time offender, law-abiding, and had good character apart from “what

he did for a few weeks selling these guns - - buying and selling these guns and

lying about it.” The district court stated its belief, however, that Duval was not

“buying these guns for collecting or sporting purposes,” noted that “the jury’s still

out” on whether Duval was a danger to the public, and concluded that the non-

incarceration sentence Duval requested was not appropriate given the seriousness

of his offenses.

      Given the extensive discussion of the § 3553(a) factors, there is no

indication that the district court failed to consider relevant factors that were due

significant weight, gave an improper or irrelevant factor significant weight, or

committed a clear error of judgment by balancing the proper factors unreasonably.

See United States v. Irey, 

, 1189 (11th Cir. 2010) (en banc).

Furthermore, the 21-month sentence would have been at the bottom of the assumed

guidelines range of 21 to 27 months and was well below the applicable ten-year

statutory maximum under 18 U.S.C. § 924(a)(2), both indications of


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reasonableness. See United States v. Hunt, 

, 746 (11th Cir. 2008)

(stating that this Court ordinarily expects a sentence within the guidelines range to

be reasonable); United States v. Stanley, 

, 656 (11th Cir. 2014) (“A

sentence imposed well below the statutory maximum penalty is an indicator of a

reasonable sentence.”). Under the totality of the circumstances, and considering

the § 3553(a) factors, we cannot say the district court abused its discretion when it

imposed a 21-month sentence, even assuming arguendo the district court erred in

applying § 2K2.1(a)(4)(B)’s 8-level enhancement. Accordingly, Duval’s sentence

is both procedurally and substantively reasonable.

                               III. CONCLUSION

      For these reasons, we affirm Duval’s convictions and total 21-month

sentence.

      AFFIRMED.




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