United States v. Melvano Moore

860 F.3d 1076, 2017 WL 2702143, 2017 U.S. App. LEXIS 11169
Court of Appeals for the Eighth Circuit·Decided June 23, 2017·No. 16-4229·Published·Cited by 7 cases

Opinion

*1077 MELLOY, Circuit Judge.

Melvano Moore pled guilty to making a false statement during the purchase of a firearm, in violation of 18 U.S.C. § 924(a)(1)(A). At sentencing, Moore argued he was entitled to a sentence reduction under United States Sentencing Guidelines § 2K2.1(b)(2) because he possessed the firearms solely for sporting use. The district court 1 concluded that Moore was not entitled to a sentence reduction and sentenced Moore to twelve months and one day of imprisonment. The district court also imposed a special condition of release requiring Moore attend a treatment program for anger control/domestic violence based on a ten-year old conviction for terroristic threats. Moore appeals his sentence and the special condition. We affirm.

I.

On September 22, 2013, Moore executed a Department of Justice, Bureau of Alcohol, Tobacco, Firearms, and Explosives Form 4473 to purchase a firearm. On the form, Moore represented that he was not an unlawful user of a controlled substance.

On May 27, 2015, law enforcement officers executed a search warrant at Moore’s residence. During the search, officers recovered four handguns, a rifle, and evidence of marijuana use. Moore later admitted that he was a marijuana user both at the time of the search and when he filled out Form 4473.

Moore was charged with making a false statement during the purchase of a firearm, in violation of 18 U.S.C. § 924(a)(1)(A), and being an unlawful user of a controlled substance in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). Pursuant to a plea agreement, Moore pled guilty to the false statement charge, and the government agreed to dismiss the unlawful-user •count at sentencing.

The presentence investigation report (PSR) calculated Moore’s guideline range at 12-18 months’ imprisonment, based on an offense level of 13 and a criminal history category of I. Moore objected to the PSR’s guideline range, arguing it should be reduced to 0-6 months because he possessed the firearms for sporting purposes, pursuant to U.S.S.G. § 2K2.1(b)(2). Moore also objected to the PSR’s recommended special condition of supervised release requiring Moore’s participation in a treatment program for anger control/domestic violence. The district court overruled both objections and sentenced Moore to 12 months and one day of imprisonment and 24 months’ supervised release, with the recommended special condition.

II.

On appeal, Moore challenges the denial of a sentence reduction pursuant to U.S.S.G. § 2K2.1(b)(2), and the special condition of supervised release.

A.

We review the application of the sentencing guidelines de novo and the underlying factual findings for clear error. United States v. Walker, 688 F.3d 416, 420 (8th Cir. 2012). Under U.S.S.G. § 2K2.1(b)(2), a defendant’s base offense level is reduced to level six if the defendant “possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition.” The burden is on the de *1078 fendant to prove that he possessed the firearms solely for sporting or collection purposes. United States v. Massey, 462 F.3d 843, 845 (8th Cir. 2006).

To determine whether the sporting-use or collection reduction applies, courts look to the “[Relevant surrounding circumstances,” which “include the number and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of the defendant’s criminal history (e.g., prior convictions for offenses involving firearms), and the extent to which possession was restricted by local law.” U.S.S.G. § 2K2.1(b)(2) cmt. n.6.

The only evidence at sentencing to arguably support a sporting-use reduction was that Moore enjoys hunting, fishing, and competing in gun competitions. Moore did not present any evidence, however, that the firearms he possessed were actually used for those purposes. See Massey, 462 F.3d at 846 (upholding the sporting-use reduction based on evidence of the “actual use of the guns”). Nor did Moore present a hunting license. See id. (noting the defendant presented hunting and fishing licenses).

Additionally, when Moore objected to the PSR for failing to apply the sporting-use reduction, he stated, “[h]is primary interest in firearms was for protection, collection, and target shooting purposes, as he was studying criminal justice and has an interest in pursuing a law enforcement career.” Thus, by Moore’s own admissions, he did not possess the firearms solely for sporting or collection purposes. And “[a] defendant who possesses a handgun for personal protection is not entitled to a § 2K2.1(b)(2) reduction.” United States v. Ramirez-Rios, 270 F.3d 1185, 1187 (8th Cir. 2001). As a result, the district court did not err in denying a sentence reduction under U.S.S.G. § 2K2.1(b)(2).

B.

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United States v. Melvano Moore, 860 F.3d 1076, 2017 WL 2702143, 2017 U.S. App. LEXIS 11169 (8th Cir. 2017).

860 F.3d 1076 (United States v. Melvano Moore) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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