Sixth Circuit Bars Sentencing Courts from Relying on Uncorroborated Multi‑Layer Police‑Report Hearsay to Impose the §2K2.1(b)(4)(A) Stolen‑Firearm Enhancement

Introduction

In United States v. Curtis Eugene‑Darnell Black, No. 23‑1622 (6th Cir. May 9, 2025) (not recommended for publication), the Sixth Circuit affirmed a felon‑in‑possession conviction but vacated the sentence and remanded for resentencing. The panel issued a per curiam opinion, with Judge Murphy concurring in part and dissenting in part.

Two issues were presented:

• Whether 18 U.S.C. § 922(g)(1) violates the Second Amendment as applied to Black, who argued he is not “dangerous.”
• Whether the district court erred by applying the U.S.S.G. § 2K2.1(b)(4)(A) two‑level enhancement for a “stolen” firearm based solely on a police report containing multi‑layer hearsay.

The court rejected the as‑applied Second Amendment challenge under plain‑error review, finding no “clear” error under current law and observing that Black’s criminal history supports a finding of dangerousness. But it reversed the stolen‑firearm enhancement, holding that the district court clearly erred by relying exclusively on uncorroborated quadruple hearsay contained in a police report—evidence lacking the minimal indicia of reliability required at sentencing.

Summary of the Opinion

• Conviction affirmed: Black’s as‑applied Second Amendment challenge fails under plain‑error review. Sixth Circuit precedent (Williams) permits disarming “dangerous” persons, and Black’s record of violent and weapons offenses reasonably supports that designation.
• Sentence vacated and remanded: The district court clearly erred in applying § 2K2.1(b)(4)(A) because the sole evidence that the gun was “stolen” was a police report recording quadruple hearsay without corroboration. The government did not meet its burden by a preponderance of the evidence, and the error was not harmless because it altered the Guidelines range and the court imposed a within‑range sentence.

Factual and Procedural Background

Lansing police monitoring a high‑crime gas station observed two men walking while holding objects in their right pockets and suspected they were armed. After the men parked, officers approached; Black fled, dropped a loaded Sig Sauer P250 while attempting to jump a fence, and was detained. He pleaded guilty to violating § 922(g)(1), reserving only a facial constitutional challenge.

At sentencing, probation recommended the § 2K2.1(b)(4)(A) two‑level enhancement based on a police report summarizing an interview of the gun’s registered owner. The report recounted that the owner had lent the firearm to a friend in 2019, later learned through a relative that the friend said the gun had been “stolen,” and had not yet reported the theft. Black objected, arguing insufficient evidence that the firearm was in fact stolen and questioning the owner’s credibility. The district court overruled the objection, finding the owner had no reason to lie, and imposed a 42‑month sentence (Guidelines range 37–46 months with the enhancement; 30–37 months without it).

Analysis

Precedents Cited and Their Role

• Second Amendment and plain error:
  • United States v. Williams, 113 F.4th 637 (6th Cir. 2024): Upheld § 922(g)(1) on its face; allowed as‑applied challenges by nondangerous felons; directed courts to consider the defendant’s entire criminal record and noted a presumption of dangerousness for those with violent crimes.
  • United States v. Rahimi, 602 U.S. 680 (2024): Confirmed that legislatures may disarm dangerous individuals consistent with historical tradition.
  • United States v. Olano, 507 U.S. 725 (1993); United States v. Puckett, 556 U.S. 129 (2009): Plain‑error framework requiring a clear mistake under current law and that the error be beyond reasonable dispute.
  • United States v. Al‑Maliki, 787 F.3d 784 (6th Cir. 2015); United States v. Davis, 970 F.3d 650 (6th Cir. 2020): Plain error requires binding case law that clearly resolves the issue in the defendant’s favor.
• Stolen‑firearm enhancement:
  • U.S.S.G. § 2K2.1(b)(4)(A) and cmt. n.8(B): Adds two levels if “any firearm was stolen”; no knowledge requirement.
  • United States v. Brown, 86 F.4th 1164 (6th Cir. 2023); United States v. Jackson, 401 F.3d 747 (6th Cir. 2005): “Stolen” includes fraudulently acquired or taken without the owner’s consent.
  • United States v. Murphy, 96 F.3d 846 (6th Cir. 1996): No scienter requirement for the enhancement.
  • United States v. Dupree, 323 F.3d 480 (6th Cir. 2003); United States v. Chambers, 638 F. App’x 437 (6th Cir. 2015): Government’s burden is preponderance of the evidence.
  • United States v. Armstrong, 920 F.3d 395 (6th Cir. 2019): Sentencing courts may rely on hearsay only if it bears a minimal indicium of reliability.
  • United States v. Jones, 453 F.3d 777 (6th Cir. 2006); United States v. Jones, 815 F. App’x 870 (6th Cir. 2020): Caution against regular use of police reports at sentencing given their investigative and advocacy character.
  • United States v. Jordan, 742 F.3d 276 (7th Cir. 2014): Police reports are advocacy pieces prepared for charging decisions.
  • United States v. Al‑Cholan, 610 F.3d 945 (6th Cir. 2010): Corroborating evidence can supply sufficient indicia of reliability for hearsay.
  • United States v. Carroll, 2024 WL 4953549 (6th Cir. Dec. 3, 2024): Affirmed stolen‑firearm enhancement where hearsay in a police report was corroborated by officer testimony.
  • Harmlessness and resentencing: United States v. Lanesky, 494 F.3d 558 (6th Cir. 2007); United States v. Alvarado, 95 F.4th 1047 (6th Cir. 2024): Sentencing error requires remand unless the government proves harmlessness with certainty; a different Guidelines range typically precludes harmlessness.
  • Standards of review in dissent’s framing: United States v. O’Lear, 90 F.4th 519 (6th Cir. 2024) (clear error “plausible reading”); United States v. Whitlow, 2025 WL 1122357 (6th Cir. Apr. 16, 2025) (government’s burden under §2K2.1(b)(4)(A)).
• Additional reference:
  • United States v. Smith, 422 F.3d 715 (8th Cir. 2005): Short‑barreled shotguns are inherently dangerous and lack lawful utility—relevant to assessing dangerousness.

Legal Reasoning

1) As‑Applied Second Amendment Challenge (affirmed under plain‑error review)

The panel declined to decide whether Black waived as‑applied constitutional challenges in his plea agreement because, even assuming only forfeiture, his claim fails under plain‑error review. To obtain relief, Black needed binding precedent clearly establishing that § 922(g)(1) is unconstitutional as applied to him. He cited none. Instead, Williams (Sixth Circuit) squarely recognizes the statute’s constitutionality as applied to “dangerous” persons and instructs courts to evaluate the full criminal record. The Supreme Court’s decision in Rahimi likewise supports disarming dangerous individuals consistent with historical tradition.

Applying Williams’s fact‑specific approach, the court concluded it was not plainly erroneous to treat Black as dangerous: his record included juvenile violence (a larceny involving punching a victim and theft of a phone; assaulting/resisting/obstructing an officer), adult convictions for assaulting/resisting/obstructing an officer, and prior unlawful possession of a firearm and a short‑barreled shotgun—an inherently dangerous weapon. At minimum, whether these facts render him “dangerous” is subject to reasonable dispute, which defeats plain error. Because no binding case law clearly dictates a contrary result, the conviction stands.

2) Stolen‑Firearm Enhancement (vacated for clear error)

The enhancement in § 2K2.1(b)(4)(A) applies if the firearm was stolen; the defendant’s knowledge is irrelevant. The government bears the burden of proof by a preponderance, and the district court’s factual finding is reviewed for clear error. Although hearsay is admissible at sentencing, it must possess a minimal indicium of reliability.

Here, the only proof that the Sig Sauer was stolen was a police report. The report contained quadruple hearsay: (1) the reporting officer’s unsworn out‑of‑court statements; (2) the owner’s statements to the officer; (3) a relative’s statements to the owner; and (4) the friend’s statements to the relative that “someone” had stolen the gun. The report offered no identifying details about the friend or the relative, no circumstances of the supposed theft, and no corroborating evidence. The owner had not reported the gun stolen in the multi‑year interval and had an arguable motive to shade his account, because knowingly supplying a firearm to a felon is a federal crime (18 U.S.C. § 922(d)(1)), and law enforcement contacted him only after the gun was recovered from Black.

The Sixth Circuit has repeatedly warned against relying on police reports at sentencing, given their investigative and advocacy purpose. Absent “external” corroboration—like testimony from the officer or owner, documentary traces, insurance or theft reports—the quadruple‑hearsay account lacked the minimal indicia of reliability. The panel distinguished Carroll, where similar hearsay was corroborated by testifying witnesses.

Because the incorrect enhancement produced a higher Guidelines range (37–46 months rather than 30–37), and the district court selected a within‑Guidelines sentence of 42 months, the government could not show harmlessness with certainty. The court therefore vacated the sentence and remanded for resentencing without the unproven enhancement or with a proper evidentiary foundation.

The Separate Opinion (Concurring in Part, Dissenting in Part)

Judge Murphy agreed that the Second Amendment claim fails under plain‑error review, but would have affirmed the sentence. In his view:

• Black forfeited the specific hearsay‑reliability argument by never invoking hearsay or the “minimal indicium of reliability” standard in the district court or on appeal, thereby depriving the government and the district court of the chance to respond.
• Applying deferential clear‑error review, the district court plausibly credited the owner’s explanation regarding delayed reporting and lack of serial‑number information.
• Even if the friend’s account was untrue, a refusal to return the gun on a false claim of theft could itself amount to a fraudulent taking, which the Sixth Circuit treats as “stolen” for § 2K2.1(b)(4)(A) purposes (citing Brown). Thus, the hearsay layers concerning “someone” stealing the gun might be beside the point if the owner was credible and the friend wrongfully retained it.

On preservation doctrine, he emphasized the distinction between raising a “claim” versus new “sub‑arguments,” and concluded it was unfair to reach a hearsay‑reliability rationale not briefed by Black.

Impact and Practical Implications

1) Evidentiary rigor for § 2K2.1(b)(4)(A) in the Sixth Circuit

The most consequential aspect of Black is its reinforcement—and sharpening—of reliability limits on hearsay at sentencing:

• Uncorroborated police reports containing multiple hearsay layers will not suffice to prove a firearm was stolen.
• Courts will look for external corroboration: live testimony (owner or officer), ATF trace results, theft/insurance reports, serial‑number records, contemporaneous communications, or other reliable documentation.
• Where the only proof is a police report, the government risks reversal unless it supplies evidence demonstrating minimal indicia of reliability.

2) Preservation standards at sentencing

Although the panel did not dwell on formal preservation doctrine, it rejected the dissent’s view and treated Black’s objections—insufficient evidence, no testimony, and owner’s motive to lie—as sufficient to preserve a reliability challenge. Practitioners should still expressly invoke hearsay and the “minimal indicia of reliability” standard (Armstrong) to avoid preservation disputes, but Black suggests a general sufficiency/credibility objection may be enough to obtain clear‑error review.

3) Second Amendment as‑applied challenges post‑Williams

The opinion underscores the high bar for as‑applied attacks on § 922(g)(1) on plain‑error review. Williams’s “dangerousness” framework remains the touchstone in the Sixth Circuit:

• Courts may consider the “entire criminal record,” including juvenile adjudications, in assessing dangerousness.
• Prior violent crimes create a presumption of dangerousness.
• Weapons‑related offenses (e.g., possession of a short‑barreled shotgun) can corroborate dangerousness.

Defendants seeking as‑applied relief should develop a detailed record on nondangerousness in the district court; on appeal, absent binding precedent squarely on point, plain‑error relief will rarely be available.

Complex Concepts Simplified

• Facial vs. as‑applied challenge:
  • A facial challenge argues a law is unconstitutional in all its applications.
  • An as‑applied challenge claims the law is unconstitutional as used against a particular person on specific facts.
• Plain‑error review:
  • Applies when an issue is forfeited (not raised below).
  • Requires a clear error under current law, that is obvious, affects substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings.
  • If reasonable minds could disagree, there is typically no plain error.
• Waiver vs. forfeiture:
  • Waiver is the intentional relinquishment of a known right; a waived claim is unreviewable.
  • Forfeiture is the failure to timely assert a right; forfeited claims may be reviewed for plain error.
• Clear‑error review:
  • Appellate deference to district court fact‑finding; reversal only if the appellate court has a definite and firm conviction that a mistake has been made.
• Minimal indicium of reliability (sentencing hearsay):
  • Hearsay can be used at sentencing, but it must be reliable enough to support the finding.
  • Police reports—unsworn, investigative documents—often lack reliability absent corroboration.
• “Stolen” under § 2K2.1(b)(4)(A):
  • Covers property taken without the owner’s consent or obtained fraudulently.
  • The enhancement does not require proof that the defendant knew the firearm was stolen.
• Harmless error in sentencing:
  • Government must prove with certainty that the error did not affect the sentence.
  • A change in the advisory Guidelines range usually defeats harmlessness when the court imposed a within‑range sentence.

Practice Pointers

• For prosecutors:
  • Do not rely solely on police reports to establish that a firearm was “stolen.” Present corroboration—live testimony, trace or theft documentation, or other reliable records.
  • Anticipate motive‑to‑fabricate arguments when owners delayed reporting or faced potential exposure (e.g., § 922(d)(1)).
• For defense counsel:
  • Object to the enhancement on reliability grounds: identify hearsay layers, challenge the lack of corroboration, and highlight motives to fabricate.
  • Explicitly invoke Armstrong’s “minimal indicium of reliability” test to avoid preservation disputes.
  • On Second Amendment claims, develop a robust nondangerousness record in the district court; plain‑error review is inhospitable on appeal.
• For district courts:
  • Scrutinize police reports offered as sole proof; require corroboration or sworn testimony to meet the preponderance burden.
  • Make explicit reliability findings when relying on hearsay to support guideline enhancements.

Conclusion

United States v. Black advances two important points in Sixth Circuit sentencing and Second Amendment doctrine. First, it fortifies the evidentiary threshold for the § 2K2.1(b)(4)(A) stolen‑firearm enhancement: uncorroborated multi‑layer hearsay in a police report does not carry the government’s burden because it lacks the minimal indicia of reliability required at sentencing. This holding will shape evidentiary practices in firearms cases, encouraging the presentation of corroborated, testimonial, or documentary proof rather than bare reports.

Second, on the merits of § 922(g)(1), the case underscores the uphill nature of as‑applied challenges on plain‑error review and reaffirms the Williams framework: courts may examine the full criminal history to assess dangerousness, and violent and weapons offenses can justify disarmament consistent with historical tradition post‑Rahimi.

Although unpublished, Black is a meaningful guidepost. It cautions against overreliance on investigative reports at sentencing, clarifies that general sufficiency and credibility objections can preserve reliability challenges, and signals that, absent binding precedent, as‑applied Second Amendment claims will not succeed under plain‑error review where a defendant’s record supports a finding of dangerousness.