Circumstantial Evidence Supports Firearms-Trafficking Enhancement; Unpreserved Exportation Challenge Fails Plain-Error Review

1. Introduction

In United States v. Derick Desir, the Eleventh Circuit affirmed a 46-month prison sentence arising from false statements made during firearms purchases. The appeal concerned two four-level sentencing enhancements under the 2021 Sentencing Guidelines: one for firearms trafficking and another for possessing or transferring firearms with reason to believe they would leave the United States.

The central question was whether circumstantial evidence established the necessary awareness when Desir denied knowing the ultimate recipients or the details of the international smuggling operation. The court concluded that the trafficking finding was supported by Desir’s participation in an earlier shipment, his knowledge of a promised $30,000 payment for another shipment, and his subsequent pattern of concealed straw purchases. His separate challenge to the exportation enhancement failed under the more demanding plain-error standard because he had not raised it at sentencing.

Precedential qualification: The opinion is designated “NOT FOR PUBLICATION.” It applies existing principles rather than announcing a new binding circuit rule. Its significance lies in its fact-specific treatment of circumstantial evidence, sentencing knowledge requirements, and appellate preservation.

2. Background and Procedural History

The purchasing and transportation scheme

Desir and codefendant Osnyson Desrosiers participated in purchases of Glock firearms in Florida. According to the presentence investigation report, Desir accompanied Desrosiers in April 2022 when firearms were driven from Florida to upstate New York near the Canadian border. The firearms were then provided to another person for smuggling into Canada.

On May 10, 2022, Desrosiers sent Desir a message stating: “This guy running me 30k to come wit to run the play again. But I need help buying.” The report explained that Desrosiers would receive $30,000 to purchase and transport another shipment.

Over the following weeks, Desir bought twelve Glock firearms from six Florida dealers, while Desrosiers bought twenty-three from nine dealers. Both falsely identified themselves as the actual transferees or buyers on ATF Form 4473, although they knew they were purchasing for someone else. Desrosiers transported the firearms to upstate New York in late June, where they were transferred to another person for smuggling. Eleven firearms purchased by the two men were later recovered in Canada.

Convictions and sentencing

Desir pleaded guilty without a plea agreement to conspiracy under 18 U.S.C. § 371 and four counts of making false statements in records required to be kept by licensed firearms dealers under 18 U.S.C. § 924(a)(1)(A). His convictions were therefore for conspiracy and false-record offenses, not separate substantive trafficking or exportation offenses.

Applying the 2021 Guidelines Manual, the probation officer calculated a total offense level of 23 and criminal-history category I, producing an advisory imprisonment range of 46 to 57 months. That calculation included:

• A four-level firearms-trafficking enhancement under U.S.S.G. § 2K2.1(b)(5).
• A four-level exportation-related enhancement under U.S.S.G. § 2K2.1(b)(6)(A).

Desir objected to the trafficking enhancement, arguing that he did not know who would receive the firearms or whether the recipient intended unlawful use or disposal. He did not object to the exportation enhancement. The district court overruled the trafficking objection, finding that Desir at least had reason to know the firearms would be smuggled into Canada, and imposed a sentence at the bottom of the guideline range.

3. Summary of the Opinion

The Eleventh Circuit affirmed both enhancements and the resulting sentence.

1. Firearms trafficking: The district court reasonably inferred that Desir had reason to believe his conduct would result in firearms reaching someone who intended unlawful use or disposal. His earlier transportation activity, knowledge of the repeated operation and substantial payment, and purchasing practices supported that inference.
2. Earlier conduct: The April trip properly informed the assessment of what Desir knew during the later purchases. The court did not need to resolve whether that trip independently qualified as “relevant conduct” under U.S.S.G. § 1B1.3.
3. Exportation: Desir failed to establish plain error. Neither the guideline’s text nor controlling precedent clearly established that the facts were insufficient to give him reason to believe the firearms would leave the country.

The two rulings rest on different appellate foundations: the trafficking finding survived clear-error review, while the exportation challenge failed the distinct requirements governing an unpreserved objection.

4. Analysis of the Court’s Legal Reasoning

A. The applicable standards of proof and review

For a disputed sentencing enhancement, the government must prove the supporting facts by a preponderance of the evidence. That requires reliable, specific evidence showing that the relevant facts are more likely true than not.

The appellate court reviews interpretation and application of the Guidelines de novo, but reviews underlying factual findings for clear error. This distinction mattered because Desir primarily challenged the inference drawn from his conduct. The appellate court did not independently choose the most persuasive factual interpretation; it assessed whether the district court’s interpretation was permissible on the record.

B. The trafficking enhancement required more than proof of straw purchasing

Under the commentary to the 2021 version of § 2K2.1(b)(5), the trafficking enhancement applies when:

1. The defendant transfers, transports, or otherwise disposes of at least two firearms to another person, or receives them intending such a disposition; and
2. The defendant knows or has reason to believe that the recipient’s possession or receipt would be unlawful, or that the recipient intends unlawful use or disposal.

The disputed issue concerned the second requirement. The government did not have to prove that Desir knew the recipient’s identity or every operational detail. Nevertheless, the enhancement required evidence supporting the specified knowledge or reason to believe; the existence of false purchase forms did not automatically resolve that question.

The court relied on the combined significance of several circumstances:

• Desir previously helped transport firearms from Florida to a location near the Canadian border.
• He knew the new purchases were intended to repeat that operation.
• He knew Desrosiers had been offered $30,000 for the shipment.
• He bought twelve handguns, including multiple firearms of the same model.
• He falsely completed purchase forms and spread the transactions across six dealers over approximately two weeks.

Together, these circumstances supported the inference that the firearms were destined for unlawful disposal through cross-border smuggling. The court did not establish that any single circumstance—such as proximity to Canada or a substantial payment—would independently suffice.

C. The inquiry concerned circumstances known to Desir

The recovery of firearms in Canada helped explain the operation, but the governing inquiry concerned what Desir knew or had reason to believe when he acted. Later events could not simply replace proof of his state of mind.

This distinction prevents hindsight from becoming the sole basis for an enhancement. The court instead connected the inference to Desir’s own prior participation, communications, and purchasing conduct. His lack of demonstrated knowledge about precisely how the border crossing would occur did not defeat the finding.

D. Earlier activity could establish knowledge without a separate relevant-conduct ruling

Desir argued that the April trip was not “relevant conduct” under § 1B1.3. But he acknowledged that it supplied context for the later plan to “run the play again.” The court treated the earlier trip as evidence of the circumstances known to him during the charged purchasing activity.

The important distinction is between using an earlier act as independently punishable sentencing conduct and using it to illuminate the defendant’s knowledge. The opinion approves the latter use here; it does not comprehensively decide the former question.

E. The exportation ruling was limited by plain-error review

Section 2K2.1(b)(6)(A) applies when a defendant possesses or transfers a firearm with knowledge, intent, or reason to believe it will be transported outside the United States. Unlike the trafficking provision’s commentary, its quoted text does not require proof that an eventual recipient intends unlawful use or disposal.

Because Desir had not objected below, he had to establish an error that was plain and affected substantial rights. Even then, correction would depend on whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

The court acknowledged the absence of additional evidence showing Desir’s knowledge of whether or how the firearms would be smuggled into Canada. Nevertheless, the guideline and controlling precedent did not make the enhancement clearly erroneous on the undisputed facts. The challenge therefore failed without a need to resolve the remaining plain-error requirements.

Scope of the holding: This is not an unrestricted declaration that the exportation evidence would necessarily prevail under every standard of review. It establishes that Desir did not demonstrate a clear or obvious error on this record.

5. Precedents Cited and Their Influence

United States v. Asante, 782 F.3d 639 (11th Cir. 2015)

This was the principal substantive authority. It supplied the standards of appellate review and the government’s burden, and directed courts to examine “the circumstances known to the defendant” rather than simply what ultimately happened to the firearms.

In that case, the defendant’s statements and instructions showed participation in a profit-making operation involving firearms concealed in cars and shipped to his brother in Jamaica. The opinion used that decision to support drawing knowledge-related inferences from operational circumstances.

The comparison also exposed a limitation: the evidence against Desir did not include equally explicit knowledge of the overseas transportation arrangements. The court nevertheless found the trafficking inference permissible and held that the evidentiary difference did not establish plain error concerning exportation.

United States v. Almedina, 686 F.3d 1312 (11th Cir. 2012)

This decision required the government to support disputed enhancements with reliable and specific evidence. Its role was to frame the evidentiary threshold: sentencing findings cannot rest on unsupported accusation. Here, the court relied on concrete communications, transactions, and prior participation.

United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc)

This authority limits reliance on Sentencing Guidelines commentary: courts may not defer to commentary when uncertainty does not exist in the guideline’s text. Its citation acknowledged that commentary cannot automatically be treated as controlling without considering the guideline itself.

United States v. Jews, 74 F.4th 1325 (11th Cir. 2023)

This decision explained why the panel nevertheless used the trafficking commentary. It permitted reliance where the parties did not contest the commentary’s validity or interpretation. Because Desir’s appeal presented no such challenge, the panel applied the commentary without deciding a contested question about its authority. The opinion should not be read as independently resolving every possible challenge under United States v. Dupree.

Cooper v. Harris, 581 U.S. 285 (2017)

The court invoked this decision for the principle that a factual finding plausible in light of the entire record survives clear-error review even when another inference is equally or more plausible. This answered Desir’s contention that the evidence could support an innocent interpretation: an alternative inference alone did not require reversal.

United States v. Aguilar-Ibarra, 740 F.3d 587 (11th Cir. 2014)

This case supplied the preservation rule. A challenge raised for the first time on appeal receives plain-error review, explaining why Desir’s exportation argument faced a different and more demanding appellate inquiry.

Rosales-Mireles v. United States, 585 U.S. 129 (2018)

This decision supplied the four-part plain-error framework. The panel set out that framework but did not proceed through every element because Desir could not establish the necessary clear or obvious error.

United States v. Hamilton, 168 F.4th 1354 (11th Cir. 2026)

This decision furnished the controlling formulation of plainness used by the panel: an error is not plain unless explicit statutory or rule language specifically resolves the issue, or Supreme Court or Eleventh Circuit precedent directly resolves it. The absence of such authority establishing insufficiency was decisive to the exportation challenge.

6. Potential Impact and Limits

• Circumstantial evidence remains important: Communications, repeated activity, substantial compensation, and concealment practices may collectively establish reason to believe that firearms will be unlawfully disposed of.
• Complete operational knowledge is unnecessary: A defendant need not know the recipient’s identity or precise smuggling method when the circumstances otherwise support the required inference.
• Preservation can determine appellate prospects: Objecting to one enhancement does not preserve a challenge to a separate enhancement, even when both involve overlapping facts.
• Earlier acts can illuminate later knowledge: Prior participation may provide evidentiary context without the court deciding that it independently qualifies as guideline relevant conduct.
• The decision is not a categorical rule: It does not hold that straw purchasing, border proximity, or a large payment alone necessarily establishes trafficking or anticipated exportation.

Both enhancements remained in place, but the court did not analyze a separate objection to their combined application or decide a double-counting question. Its reasoning is also expressly tied to the 2021 Guidelines provisions used at sentencing and should not be transferred automatically to differently worded provisions.

7. Complex Concepts Simplified

Straw purchase

A purchase in which someone falsely presents themselves as the actual buyer while acquiring the firearm for another person.

Sentencing enhancement

A guideline adjustment that increases the offense level used to calculate the advisory sentencing range. It is not itself a separate conviction.

Reason to believe

A standard allowing the court to infer the required awareness from circumstances known to the defendant, without demanding a direct admission of actual knowledge.

Preponderance of the evidence

Proof that a fact is more likely true than not—a lower threshold than proof beyond a reasonable doubt.

Clear error

A deferential standard for reviewing factual findings. A plausible finding generally survives even if another interpretation is possible.

Plain error

A restricted route to relief for an objection not raised in the trial court, requiring more than a showing that the ruling might have been wrong.

Guideline commentary

Explanatory material accompanying the Guidelines. Its interpretive authority has limits, although the parties did not contest its validity here.

8. Conclusion

The Eleventh Circuit affirmed Desir’s 46-month sentence because the combined circumstances supported the trafficking finding and his unpreserved exportation challenge did not establish plain error. The opinion illustrates how prior participation and concealment can support knowledge-related sentencing inferences while emphasizing that appellate outcomes depend heavily on the applicable standard of review. As an unpublished decision, its contribution is persuasive and fact-specific rather than a new binding rule.