United States v. Ball

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 15, 1999
• Docket: 98-5092
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS OCT 15 1999

TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 98-5092 v. (D.C. No. 97-CR-129-K) (N. Dist. Okla.) JESSE ALFRED BALL,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See F ED . R. A PP . P. 34(f); 10th Cir. R. 34.1(A)(2). The case is

therefore ordered submitted without oral argument.

Defendant Jessie Alfred Ball, Jr. appeals the district court’s judgment

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. imposing a sixty-four month sentence after he pled guilty to one count of being a

felon in possession of a firearm. We affirm.

Mr. Ball was arrested during a methamphetamine laboratory investigation

conducted by state and federal agents. He consented to a search of his home,

where police found a number of weapons which Mr. Ball claims were part of his

late father’s collection. Because of his status as a convicted felon, 1 Mr. Ball was

charged with violating 18 U.S.C. § 922(g)(1). He pled guilty and was sentenced

to 64 months in prison.

In calculating the sentence under the U.S. Sentencing Guidelines, the

district court applied a four-level increase to Mr. Ball’s offense level based on the

presentence investigation report’s finding that he had fifteen “firearms” in his

possession. U.S. S ENTENCING G UIDELINES M ANUAL § 2K2.1(b)(1)(D) (four level

enhancement for offenses involving 13 to 24 firearms). Mr. Ball did not object in

district court to either the finding of fifteen “firearms” or to the application of the

four-level increase on the basis of that finding.

Mr. Ball now contends the district court erroneously applied the guidelines

to include items that do not meet the definition of “firearms” as set forth in 18

U.S.C. § 921(a)(3). He asserts that at least five of the items the court considered

in computing his sentence were merely combinations of gun components not

1 Mr. Ball committed a murder in 1978, to which he pled guilty in 1985.

-2- covered under the statute. Because he failed to object to the characterization of

the items as “firearms,” we review the district court’s application of the

guidelines for plain error. See F ED . R. C RIM . P. 52(b); United States v. Ivy, 83

F.3d 1266, 1297 (10th Cir. 1996) (“[I]f a defendant fails to object to his

presentence report, he waives his right to challenge the district court’s reliance on

it, unless the district court’s decision to do so amounts to plain error.”); United

States v. Ciapponi, 77 F.3d 1247, 1252 (10th Cir. 1996).

Under the plain error standard, “[d]efendant must show: (1) an ‘error,’ (2)

that is ‘plain,’ which means ‘clear’ or ‘obvious’ under current law, and (3) that

‘affect[s] substantial rights.’” United States v. Fabiano, 169 F.3d 1299, 1303

(10th Cir. 1999) (quoting Johnson v. United States, 520 U.S. 461 (1997)). See

also United States v. Olano, 507 U.S. 725, 732 (1993). He faces two large

hurdles in making this showing.

First, it is not clear that the district court’s application of the guidelines

was in error. The gun components Mr. Ball claims were incorrectly counted as

“firearms” include: one rifle barrel with receiver assembly, two barrels with

receivers but no stocks, and one shotgun without a stock. The commentary to the

guidelines defines “firearm,” in relevant part, as: “(i) any weapon . . . which will,

or is designed to, or may readily be converted to, expel a projectile by the action

of an explosive; (ii) the frame or receiver of any such weapon; . . . .” See USSG

-3- § 2K2.1, commentary (n.1); 18 U.S.C. § 921(a)(3). This court professes little

knowledge of weaponry. We do not know, for instance, whether the component

combinations Mr. Ball possessed are “designed to” or “may readily be converted

to” expel projectiles by the action of explosives. Nor do we know the proper

characterization of “receiver assemblies,” or how the components of “barrels” and

“stocks” relate to the guideline definition of “firearm.”

These are factual disputes, and “when a defendant fails to raise [factual

inaccuracies in the presentence report] below, we have no factual record by which

to review the application of the guidelines.” United States v. Saucedo, 950 F.2d

1508, 1518 (10th Cir. 1991), overruled on other grounds, Stinson v. United

States, 508 U.S. 36 (1993). Morever, we have held on numerous occasions that “a

factual dispute concerning the applicability of a particular guideline, not brought

to the attention of the district court, does not rise to the level of plain error.”

Saucedo, 950 F.2d at 1518. Accord United States v. Richardson, 86 F.3d 1537,

1554 (10th Cir. 1996) (factual dispute regarding presentence report’s calculation

of the type of methamphetamine defendant possessed not plain error); United

States v. Jones, 80 F.3d 436, 438-39 (10th Cir. 1996) (disputes over presentence

report’s conclusions regarding type of methamphetamine, nature of previous

convictions, and acceptance of responsibility were factual and not plain error);

United States v. Windle, 74 F.3d 997, 1001 (10th Cir. 1996) (factual dispute over

-4- presentence report’s conclusion that gun defendant possessed was stolen not plain

error).

Second, we have been unable to find, and Mr. Ball admits that he is unable

to cite us to, a single case in which this circuit construes the application of the

guideline definition of “firearm.” As such, by definition, any error committed by

the district court could not have been plain, “clear,” or “obvious” under current

law.

Defendant’s Motion for Leave to File a Second Supplemental Opening

Brief is DENIED. The sentence of the district court is AFFIRMED.

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

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