Clarifying “Stolen” Under U.S.S.G. § 2K2.1(b)(4)(A): No Fraud-or-Knowledge Requirement; Mislaid-Then-Taken Firearms Still Count

Introduction

In United States v. Carroll, No. 24-5256 (6th Cir. Dec. 3, 2024) (not recommended for publication), the Sixth Circuit affirmed a district court’s application of the two-level stolen-firearm enhancement under U.S.S.G. § 2K2.1(b)(4)(A). Bryan Thomas Carroll was apprehended outside the University of Kentucky Hospital while wearing a ballistic vest and carrying two firearms; a search of his car uncovered six additional firearms—among them a Glock pistol previously reported stolen—as well as explosive devices and materials. Carroll pleaded guilty to multiple gun and explosive offenses but challenged at sentencing the two-level enhancement for possessing a “stolen” firearm, contending the government failed to prove the Glock had been “stolen” within the meaning of the guideline.

On appeal, the sole question was whether the district court clearly erred in finding the Glock was “stolen.” Carroll argued that, after United States v. Brown, 86 F.4th 1164 (6th Cir. 2023), the government must show the defendant’s dishonesty or fraud in acquiring the firearm; alternatively, he argued the Glock might merely have been lost or mislaid rather than stolen. The Sixth Circuit rejected both arguments and affirmed.

Summary of the Opinion

The Sixth Circuit held that § 2K2.1(b)(4)(A)’s “stolen” enhancement remains a strict-liability provision: the government need only show the firearm was in fact stolen; it need not prove the defendant knew it was stolen or obtained it by dishonest means.
Brown does not impose a new evidentiary requirement of deceit or fraud; it merely confirms that “stolen” includes property acquired by fraud, in addition to traditional takings.
A firearm initially lost or mislaid by the owner can nevertheless be “stolen” when later wrongfully taken by someone without rights to it.
Hearsay evidence with sufficient indicia of reliability may support sentencing factfinding; the district court permissibly relied on an ATF agent’s credible testimony regarding the owner’s police report and the NCIC entry.
Given the record—owner left the Glock in a rental car, reported it stolen three days later, never recovered it, and the firearm resurfaced years afterward in Carroll’s possession—the district court did not clearly err in finding the gun was stolen.

Factual and Procedural Background

Police arrested Carroll outside the University of Kentucky Hospital on an outstanding warrant. He was wearing a ballistic vest and carrying two firearms; a search of his vehicle revealed six more firearms (including an unregistered sawed-off shotgun) and multiple explosive devices. One of the firearms was a Glock reported stolen on July 4, 2018. The firearm’s original owner had left it in a rental car; after searching for it and contacting the rental company, he reported it stolen and it was entered into the NCIC database. The owner did not recover the firearm before it was discovered years later in Carroll’s car.

Carroll pleaded guilty to: (1) felon in possession of a firearm, 18 U.S.C. § 922(g)(1); (2) carrying an explosive during commission of a federal felony, 18 U.S.C. § 844(h)(2); and (3) possessing an unregistered firearm (the sawed-off shotgun), 26 U.S.C. § 5861(d). The PSR included a two-level increase under § 2K2.1(b)(4)(A) for possessing a stolen firearm. At sentencing, Carroll objected, arguing insufficient proof that the Glock was “stolen” and asserting that Brown required proof of dishonesty by the possessor. The government presented ATF Agent Christopher Knotts, who traced the Glock to its owner and described the owner’s report and NCIC entry. The district court credited Knotts, applied the enhancement, and imposed a below-Guidelines sentence of 180 months. Carroll appealed only the enhancement’s application.

Detailed Analysis

Precedents and Authorities Cited

United States v. Brown, 86 F.4th 1164 (6th Cir. 2023): The Sixth Circuit held a firearm can be “stolen” for § 2K2.1(b)(4)(A) when obtained by fraud (fake ID and credit card), interpreting “stolen” by ordinary meaning, statutory context, and history. In Carroll, the court clarifies that Brown expanded the ways a gun might be “stolen” (including fraud), but did not impose a requirement that the defendant must have engaged in dishonesty or deceit for the enhancement to apply.
United States v. Palos, 978 F.3d 373 (6th Cir. 2020), adopting United States v. Gibson, 817 F. App’x 202 (6th Cir. 2020): The enhancement contains no scienter element; it applies regardless of whether the defendant knew or had reason to believe the firearm was stolen. Carroll reaffirms this strict-liability reading.
MOSKAL v. UNITED STATES, 498 U.S. 103 (1990): Supports using ordinary meaning when a term is not a legal term of art; cited via Brown for interpreting “stolen.”
United States v. Bates, 584 F.3d 1105 (8th Cir. 2009): An instructive, nonbinding analogue where a mislaid gun found later in a defendant’s possession was deemed “stolen” despite gaps as to the exact circumstances; the Eighth Circuit affirmed the enhancement. Carroll finds Bates persuasive.
United States v. Armstrong, 920 F.3d 395 (6th Cir. 2019); United States v. Jones, 815 F. App’x 870 (6th Cir. 2020): A court may rely on hearsay at sentencing if it has sufficient indicia of reliability; factfinding can rest on such evidence.
United States v. Greco, 734 F.3d 441 (6th Cir. 2013) (quoting United States v. Maliszewski, 161 F.3d 992 (6th Cir. 1998)): Sentencing credibility determinations are “basically unassailable” on appeal.
Anderson v. City of Bessemer City, 470 U.S. 564 (1985): Under clear-error review, when two permissible views of the evidence exist, a factfinder’s choice between them is not clearly erroneous.
Standards of review cases: United States v. Tripplet, 112 F.4th 428 (6th Cir. 2024) (clear error standard for factual findings supporting enhancements); United States v. Histed, 93 F.4th 948 (6th Cir. 2024) (defining clear error).

Legal Reasoning

The court proceeds in two steps: (1) how to understand “stolen” for purposes of § 2K2.1(b)(4)(A), and (2) whether the district court clearly erred in finding the Glock stolen on this record.

First, the Sixth Circuit reaffirms that “stolen” carries its ordinary meaning. Brown confirms that “stolen” encompasses traditional nonconsensual takings and also acquisitions through fraud or deceit. But crucially, Brown did not engraft a new prerequisite that the possessor personally engaged in deceit. Section 2K2.1(b)(4)(A) has no scienter requirement: the enhancement applies even if the defendant did not know and had no reason to know the firearm was stolen. Thus, the government’s burden is singular and straightforward: establish by a preponderance of the evidence that the firearm was in fact stolen when possessed by the defendant.

Second, the court holds that a firearm initially lost or mislaid by its owner may still be “stolen” if later taken by someone without right or permission. The legal ownership does not dissipate upon mislaying; there is no “finders keepers” safe harbor. Here, the owner left the Glock in a rental-car door compartment, searched for it and contacted the rental company, then reported it stolen after three days. The firearm was entered into NCIC and remained unrecovered for years until found with Carroll. The district court credited ATF Agent Knotts’s testimony—including hearsay derived from the owner’s report—that the owner never gave anyone permission to take the firearm. That testimony bore sufficient indicia of reliability, and the court’s credibility determinations are entitled to deference. Given that chain of facts, it was reasonable to infer the gun was stolen, even if the precise circumstances of the taking were unknown.

On clear-error review, the Sixth Circuit emphasized that Carroll’s competing hypotheses (that the owner merely lost it or lied) were presented to and rejected by the district court. Where two permissible views exist, the appellate court will not disturb the district court’s choice. Because the district court’s finding was supported by the record and not a definite and firm mistake, the enhancement stands.

Impact and Significance

Although unpublished, this decision provides practical clarity for sentencing in § 2K2.1(b)(4)(A) cases within the Sixth Circuit:

No “dishonesty by the defendant” requirement. Defendants cannot leverage Brown to argue the government must prove deceit or fraud by the possessor. Brown broadened the category of “stolen” property to include fraudulently obtained items; it did not narrow the category to require deceit.
Strict liability reaffirmed. The enhancement applies irrespective of the defendant’s knowledge or reason to believe the firearm was stolen. This aligns with Palos and Gibson and forecloses mens rea defenses at sentencing on this enhancement.
Mislaid versus stolen. The opinion rejects the common defense that a gun was simply lost. If the record supports that someone other than the owner appropriated the gun without permission, the firearm is “stolen,” even if the owner initially mislaid it and even if the precise circumstances remain unknown.
Use of hearsay at sentencing. The court’s reliance on an ATF agent’s testimony summarizing the owner’s report and NCIC data underscores the low evidentiary threshold at sentencing. So long as the information has sufficient indicia of reliability, it may support the finding.
Practical evidentiary sufficiency. An NCIC stolen entry, a timely police report, and credible officer testimony may suffice—absent countervailing reliable evidence—to support the stolen status by a preponderance.

In practice, the opinion equips prosecutors and probation officers to rely on routine law-enforcement documentation and testimony when a firearm bears a stolen designation and the owner’s lack of consent is credibly established. For defense counsel, successful challenges will likely require undermining the reliability of the hearsay (e.g., inconsistencies, recantation, chain-of-custody anomalies) or presenting affirmative, reliable evidence that the owner transferred the gun or that the “stolen” designation is erroneous—not simply positing equally plausible alternative narratives.

Complex Concepts Simplified

“Stolen” under § 2K2.1(b)(4)(A): The ordinary meaning applies. Property is “stolen” if taken without the owner’s consent or acquired by deceit or fraud. It is not limited to classic theft; it includes fraudulent acquisition and mislaid-then-taken scenarios.
Strict liability (no scienter): This enhancement does not require proof that the defendant knew or should have known the gun was stolen. The only question is whether the gun was in fact stolen at the time of possession.
Preponderance of the evidence: The government must show it is more likely than not that the firearm was stolen. This is a lower bar than “beyond a reasonable doubt.”
Clear-error review: On appeal, factual findings stand unless the appellate court is left with a “definite and firm conviction” a mistake was made. If the district court chose between two reasonable views, the appellate court will not second-guess it.
Hearsay at sentencing: Unlike at trial, sentencing courts may consider hearsay if it has sufficient indicia of reliability (e.g., consistent police reports, database entries, corroborated statements), and credibility determinations are highly deferential on appeal.
NCIC entry: The National Crime Information Center maintains records on stolen property, including firearms. A valid NCIC stolen entry, especially coupled with a police report and non-recovery by the owner, supports a “stolen” finding.

Conclusion

The Sixth Circuit’s decision in United States v. Carroll fortifies three practical propositions about the stolen-firearm enhancement under U.S.S.G. § 2K2.1(b)(4)(A):

The enhancement is strict liability: the government need only prove the gun was “stolen,” not that the defendant knew it or procured it by deceit.
Brown expands, but does not limit, the meaning of “stolen” to include fraudulent acquisitions; it does not impose a deceit-by-defendant prerequisite.
Firearms initially lost or mislaid can still be “stolen” if later wrongfully taken; “finders keepers” is no defense to the enhancement.

Anchored in existing Sixth Circuit law on scienter and evidentiary standards at sentencing, the ruling confirms that credible hearsay anchored in police reports and NCIC entries can meet the preponderance threshold. As a result, defendants facing § 2K2.1(b)(4)(A) enhancements will find little traction in arguments premised solely on lack of knowledge, alternative possibilities of loss, or demands for direct proof of deceit, absent concrete evidence undermining the firearm’s stolen status. The district court’s finding was not clearly erroneous, and the enhancement properly applied.