Virginia Lawyers Weekly VA Lawyers Weekly
Pino pleaded guilty to making a false statement in connection with the purchase of a firearm. The court vacated the guilty plea, however, because the factual record did not support it since Pino had not made a false statement.
Background
On Jan. 26, 2018, Pino was named in a one-count criminal information, charging him with False Statement in Connection with Purchase of Firearm. On Jan. 29, 2018, Pino pled guilty. On that same date, the court accepted Pino’s plea and found him guilty.
According to the statement of facts stipulated to by the parties before sentencing, Pino “[o]n or about March 12, 2016, Defendant purchased for $439.99 a Glock, Model 23, .40 caliber semi-automatic pistol, bearing serial number ABKC629US, from the Marine Corps Exchange.” In making this purchase, “Defendant completed an ATF Form 4473.” On the ATF Form 4473, Defendant “checked the box indicating that he was the actual buyer and transferee of the firearm even though he was really planning to resell the firearm for profit.” “Later that day, the [D]efendant sold the Glock 23, which was in brand-new condition and packaged in the box with grip extensions.”
Pino’s sentencing was set for Sept. 4, 2018, at which time the court held a hearing with all parties present and considered the problem of the guilty plea.
Analysis
The court determines that there is no factual basis to support Pino’s plea of guilty. Pino pled guilty to a False Statement in Connection with Purchase of a Firearm. The factual basis for the plea agreement is based upon the theory that Pino was never to be the owner or transferee of the subject firearm, and therefore made a false statement by indicating on the ATF Form 4473 that “he was the actual buyer and transferee of the firearm.” The parties state that the defendant was not “to be the owner or transferee of the subject firearm since he was going to immediately transfer the subject firearm to another for profit as he had done many times before.”
However, based on the facts set forth in the statement of facts, Pino was, in fact, the owner and transferee of the subject firearm, albeit for a brief period of time. Pino purchased the firearm, representing on the ATF Form 4473 that he was the buyer. When Pino purchased the firearm, there was no pre-determined or known third-party buyer to whom Pino immediately transferred the firearm. Instead, hours after Pino purchased the firearm, an individual responded to one of Pino’s advertisements. Later that day, the Pino sold the firearm to such individual. Pino was in possession of the firearm from the time he purchased the firearm to the time he resold the firearm later that day.
The court is not aware of any case law supporting the theory that Pino did not own the subject firearm during the period between his purchase and resale of the firearm. In every case this Court has analyzed in which a defendant was found guilty of making a false statement with respect to his status as the actual buyer or transferee on ATF Form 4473, the defendant intended to transfer the firearm to a known third-party at the time of purchase. As noted, Pino did not intend to transfer the firearm to any known third-party in this case.
For these reasons, Pino was in fact the owner and transferee of the subject firearm for a brief period of time. Therefore, there is no factual basis for finding Pino guilty of making a false statement in connection with the purchase of a firearm. As the Court has determined that there is an insufficient factual basis to support the plea it previously accepted, the Court now exercises its authority to vacate Pino’s plea.
Guilty plea vacated.
United States v. Pino, Case No. 17-CR-70, Sept. 4, 2018. EDVA at Norfolk (Doumar). VLW No. 018-3-371. 5 pp.
