United States v . So 05-CR-185-SM 07/12/07 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 05-cr-184-1-SM Opinion N o . 2007 DNH 087 Theoun So
O R D E R
Defendant has filed a motion seeking release on bail pending
resolution of his direct appeal. 18 U.S.C. § 3143(b). Because
he pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g), and has been sentenced,
defendant must be detained absent a finding based on clear and
convincing evidence that he is not a risk of flight or a danger
to the community and that his appeal raises a substantial
question of law or fact likely to result i n , among other things,
“a reduced sentence to a term of imprisonment less than the total
of the time already served plus the expected duration of the
appeal process.” 18 U.S.C. § 3143(b)(1)(B)(iv).
The pertinent facts are these. Defendant went to a
commercial firing range with a friend. He arrived at the range
in possession of a silver-colored pistol, which was in a holster
on his hip. Defendant proceeded to rent firearms and to fire
them on the range. Before renting and using the firearms, defendant had affirmatively misrepresented his criminal history
on a form required by the business when he denied that he had
been previously convicted of a felony. In fact, defendant had
been previously convicted of two felonies, both of which
qualified as crimes of violence. His prior convictions, and the
fact that he rented and fired a submachine gun, resulted in a
Base Offense Level under the Sentencing Guidelines of 2 6 . See
U.S.S.G. § 2K2.1(a)(1). Defendant’s Criminal History Category
(“CHC”) was properly determined to be Category III.
Counsel argues that defendant’s appeal of his sentence does
raise “substantial issues of fact and law which could result in
the time-served sentence sought by . . . counsel,” citing cases
that generally reject “fleeting and transitory” or “otherwise
innocent” factual defenses to felon in possession of firearms
charges. But, even if such factual defenses might prove valid
under extraordinary circumstances like those mentioned in the
cases cited by counsel (e.g., a felon taking possession of a
firearm from a child), there is no “fleeting” or “otherwise
innocent possession” issue here. Defendant carried a pistol on
his hip into a commercial range, misrepresented his criminal
background, rented other firearms, and actually fired them for
approximately one hour. See United States v . Holt, 464 F.3d 1 0 1 ,
2 106-107 (1st Cir. 2006); United States v . Mercado, 412 F.3d 243,
251 (1st Cir. 2005).
Defendant also suggests that a substantial legal issue will
be presented on appeal related to the recent Supreme Court
decision in Rita v . United States, 2007 WL 1772146, 75 USLW 4471
(June 2 1 , 2007). Rita validated a rebuttable appellate
presumption that criminal sentences falling within a properly
calculated Guidelines sentencing range are “reasonable,” but
noted that sentencing courts cannot apply a similar presumption.
Neither appellate issue is likely to result in “the time-
served sentence sought by . . . counsel.” The factual findings
underlying the imposed sentence — that defendant carried a
firearm on his hip in a holster, rented other firearms at the
range, and fired those weapons, knowing he was a prohibited
person and after having misrepresented his status as a convicted
felon to facilitate his acquisition of the rented firearms, are
fully supported by the testimony and evidence presented. The
legal issue defendant identifies — that the court (presumably
implicitly) deemed a Guidelines sentence to be presumptively
reasonable — is a bit difficult to understand. The court did not
“presume” the properly calculated advisory Guidelines sentencing
range to be reasonable in this case. To the contrary, the court
3 sua sponte declined to impose a sentence within that properly
calculated range. Defendant’s Guidelines sentencing range, after
adjustments, was based upon a Total Offense Level of 25 and a
Criminal History Category I I I , which called for a prison sentence
between 70 and 87 months. But the court departed two levels
under Guidelines Section 5K2.0, on grounds that the circumstances
surrounding defendant’s possession of a submachine gun (an
enhancing fact under Section 2K2.1(a)(1)) fell outside the
heartland of cases involving felons in possession of such
weapons. Specifically, the court determined that because
defendant’s possession of the submachine gun was at a commercial
firing range, he was under supervised and controlled conditions,
the weapon was used exclusively for target-shooting, and the
record sufficiently suggested a degree of marketing pressure by
the business to induce defendant to rent and try that particular
sentence-enhancing firearm, the enhancing factor based on the
weapon’s characteristics should not be applied.
It may be that the court’s downward departure under Section
5K2.0 is vulnerable on appeal, but, if overturned, the result
would decrease rather than increase the likelihood of a sentence
less severe than the one imposed. And, for the reasons given at
sentencing, the court is not persuaded (at least not on any
grounds argued or apparent from this record) that a non-
4 Guidelines sentence below the one the court has already departed
to is warranted.
Concededly, fifty-seven months (or 70-87 months, absent the
court’s departure) is not a lenient sentence for the offense of
conviction. But the Congress and the Sentencing Commission could
reasonably conclude that a person twice convicted of a crime of
violence who subsequently possesses firearms, presents a
heightened and serious danger to the public sufficient to warrant
stiff penalties aimed at dissuading both that person
specifically, and others like him generally, from having firearms
under their control. Thus, the Guidelines counsel a serious
sentence. The question then becomes, whether there are other
circumstances or facts present that warrant a different — here,
less severe — sentence.
Had the facts of this case been different — had defendant
simply gone to a commercial firing range with a friend and, due
to plausible ignorance, rented firearms to engage in recreational
target-shooting under close supervision and in a controlled
setting, those circumstances, coupled with his recent productive
work history, fulfilled family responsibilities, compliant
behavior while on bail and probation, and seemingly sincere
effort to change the direction of his life, may well have
5 warranted a Booker sentence somewhat below the departed-to 57
months imposed in this case. But those are not the facts.
This defendant carried a firearm to the range on his person;
he knew he was prohibited from possessing firearms; he
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United States v . So 05-CR-185-SM 07/12/07 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 05-cr-184-1-SM Opinion N o . 2007 DNH 087 Theoun So
O R D E R
Defendant has filed a motion seeking release on bail pending
resolution of his direct appeal. 18 U.S.C. § 3143(b). Because
he pled guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g), and has been sentenced,
defendant must be detained absent a finding based on clear and
convincing evidence that he is not a risk of flight or a danger
to the community and that his appeal raises a substantial
question of law or fact likely to result i n , among other things,
“a reduced sentence to a term of imprisonment less than the total
of the time already served plus the expected duration of the
appeal process.” 18 U.S.C. § 3143(b)(1)(B)(iv).
The pertinent facts are these. Defendant went to a
commercial firing range with a friend. He arrived at the range
in possession of a silver-colored pistol, which was in a holster
on his hip. Defendant proceeded to rent firearms and to fire
them on the range. Before renting and using the firearms, defendant had affirmatively misrepresented his criminal history
on a form required by the business when he denied that he had
been previously convicted of a felony. In fact, defendant had
been previously convicted of two felonies, both of which
qualified as crimes of violence. His prior convictions, and the
fact that he rented and fired a submachine gun, resulted in a
Base Offense Level under the Sentencing Guidelines of 2 6 . See
U.S.S.G. § 2K2.1(a)(1). Defendant’s Criminal History Category
(“CHC”) was properly determined to be Category III.
Counsel argues that defendant’s appeal of his sentence does
raise “substantial issues of fact and law which could result in
the time-served sentence sought by . . . counsel,” citing cases
that generally reject “fleeting and transitory” or “otherwise
innocent” factual defenses to felon in possession of firearms
charges. But, even if such factual defenses might prove valid
under extraordinary circumstances like those mentioned in the
cases cited by counsel (e.g., a felon taking possession of a
firearm from a child), there is no “fleeting” or “otherwise
innocent possession” issue here. Defendant carried a pistol on
his hip into a commercial range, misrepresented his criminal
background, rented other firearms, and actually fired them for
approximately one hour. See United States v . Holt, 464 F.3d 1 0 1 ,
2 106-107 (1st Cir. 2006); United States v . Mercado, 412 F.3d 243,
251 (1st Cir. 2005).
Defendant also suggests that a substantial legal issue will
be presented on appeal related to the recent Supreme Court
decision in Rita v . United States, 2007 WL 1772146, 75 USLW 4471
(June 2 1 , 2007). Rita validated a rebuttable appellate
presumption that criminal sentences falling within a properly
calculated Guidelines sentencing range are “reasonable,” but
noted that sentencing courts cannot apply a similar presumption.
Neither appellate issue is likely to result in “the time-
served sentence sought by . . . counsel.” The factual findings
underlying the imposed sentence — that defendant carried a
firearm on his hip in a holster, rented other firearms at the
range, and fired those weapons, knowing he was a prohibited
person and after having misrepresented his status as a convicted
felon to facilitate his acquisition of the rented firearms, are
fully supported by the testimony and evidence presented. The
legal issue defendant identifies — that the court (presumably
implicitly) deemed a Guidelines sentence to be presumptively
reasonable — is a bit difficult to understand. The court did not
“presume” the properly calculated advisory Guidelines sentencing
range to be reasonable in this case. To the contrary, the court
3 sua sponte declined to impose a sentence within that properly
calculated range. Defendant’s Guidelines sentencing range, after
adjustments, was based upon a Total Offense Level of 25 and a
Criminal History Category I I I , which called for a prison sentence
between 70 and 87 months. But the court departed two levels
under Guidelines Section 5K2.0, on grounds that the circumstances
surrounding defendant’s possession of a submachine gun (an
enhancing fact under Section 2K2.1(a)(1)) fell outside the
heartland of cases involving felons in possession of such
weapons. Specifically, the court determined that because
defendant’s possession of the submachine gun was at a commercial
firing range, he was under supervised and controlled conditions,
the weapon was used exclusively for target-shooting, and the
record sufficiently suggested a degree of marketing pressure by
the business to induce defendant to rent and try that particular
sentence-enhancing firearm, the enhancing factor based on the
weapon’s characteristics should not be applied.
It may be that the court’s downward departure under Section
5K2.0 is vulnerable on appeal, but, if overturned, the result
would decrease rather than increase the likelihood of a sentence
less severe than the one imposed. And, for the reasons given at
sentencing, the court is not persuaded (at least not on any
grounds argued or apparent from this record) that a non-
4 Guidelines sentence below the one the court has already departed
to is warranted.
Concededly, fifty-seven months (or 70-87 months, absent the
court’s departure) is not a lenient sentence for the offense of
conviction. But the Congress and the Sentencing Commission could
reasonably conclude that a person twice convicted of a crime of
violence who subsequently possesses firearms, presents a
heightened and serious danger to the public sufficient to warrant
stiff penalties aimed at dissuading both that person
specifically, and others like him generally, from having firearms
under their control. Thus, the Guidelines counsel a serious
sentence. The question then becomes, whether there are other
circumstances or facts present that warrant a different — here,
less severe — sentence.
Had the facts of this case been different — had defendant
simply gone to a commercial firing range with a friend and, due
to plausible ignorance, rented firearms to engage in recreational
target-shooting under close supervision and in a controlled
setting, those circumstances, coupled with his recent productive
work history, fulfilled family responsibilities, compliant
behavior while on bail and probation, and seemingly sincere
effort to change the direction of his life, may well have
5 warranted a Booker sentence somewhat below the departed-to 57
months imposed in this case. But those are not the facts.
This defendant carried a firearm to the range on his person;
he knew he was prohibited from possessing firearms; he
deliberately and falsely denied his disqualifying prior felony
convictions to facilitate his acquisition of firearms; and he
rented, possessed, and fired those weapons. Accordingly, the
court declined to impose a lesser sentence after having
considered the circumstances as a whole, counsel’s argument, and
the factors described in 18 U.S.C. § 3553(a), particularly the
need for specific and general deterrence.
Given the need for specific and general deterrence, and the
seriousness of the offense, albeit in a context found to warrant
a downward departure, even if defendant obtains a new sentencing
hearing on appeal, it does not seem “likely” that a “reduced
sentence to a term of imprisonment less than the total of the
time already served plus the expected duration of the appeal
process” will result. 18 U.S.C. § 3143(b)(B)(iv).
S o , even stretching a few points in defendant’s favor —
i.e., that he “clearly and convincingly” poses no flight risk
(notwithstanding his potential deportation), and poses no danger
6 to the community (notwithstanding his history of violence,
including felony convictions and multiple restraining orders),
defendant still fails to satisfy the conditions necessary to
obtain bail pending appeal, because the factual and legal issues
he proposes to raise on appeal are not likely to result in a
reduction in his sentence below the total time already served
(here, about one year in detention on a warrant obtained by the
Bureau of Immigration and Customs Enforcement)1 and the expected
duration of the appeal process (usually about six months to one
year).
The Motion for Bail and Stay Pending Appeal (document no.
35) is denied.
SO ORDERED.
Steven J __McAuliffe 'Chief Judge
July 12,2007
cc: Debra M. Walsh, AUSA, Esq. Bjorn F. Lange, Esq. Jeffrey S. Levin, Esq.
1 The court assumes defendant will receive credit for that time, about one year, toward the current sentence.