United States v. Richard Anthony Smith

914 F.2d 250, 1990 U.S. App. LEXIS 16594, 1990 WL 135666

• Court: Court of Appeals for the Fourth Circuit
• Decided: September 20, 1990
• Docket: 90-5323
• Status: Published

Opinion

914 F.2d 250

UNITED STATES of America, Plaintiff-Appellee,
v.
Richard Anthony SMITH, Defendant-Appellant.

No. 90-5323.

United States Court of Appeals, Fourth Circuit.

Submitted July 20, 1990.
Decided Sept. 20, 1990.

Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert J. Staker, District Judge. (CR-89-177)

Dwight J. Staples, Henderson, Henderson and Staples, Huntington, W.Va., for appellant.

Michael W. Carey, United States Attorney, Paul A. Billups, Assistant United States Attorney, Huntington, W.Va., for appellee.

S.D.W.Va.

AFFIRMED.

Before PHILLIPS, SPROUSE and WILKINSON, Circuit Judges.

PER CURIAM:

Richard Smith pleaded guilty in the United States District Court for the Southern District of West Virginia to possessing a firearm as a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1). He now appeals the trial court's sentencing determination that he did not possess the firearms for sporting or collecting purposes and the court's subsequent refusal to reduce his base offense level under federal sentencing guidelines. We affirm the district court.

Under Sec. 2K2.1(b)(1) of the United States Sentencing Commission Guidelines, the court must decrease Smith's offense level by two levels if it finds that he possessed the firearm solely for lawful sporting or collection purposes. The court may consider such relevant circumstances as the number and type of firearms and ammunition, the nature of the defendant's criminal history and the location and details of the possession. U.S.S.G. Sec. 2K2.1, comment. (n. 2).

Richard Smith sold a stolen semi-automatic assault rifle and three handguns with silver-tipped hollow-point ammunition, while advising the purchasing federal agent that at least one of the guns was "hot." He sold the guns for cash and did not complete transfer forms. Even given the evidence offered by Smith that he was a collector and frequently took target practice, it was not clearly erroneous for the court to have found that Smith did not possess the particular guns solely for lawful sporting purposes or collection. See United States v. Stokley, 881 F.2d 114, 116 (4th Cir.1989).

The judgment of the district court is