IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 91-7109 Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ANTHONY SHELL,
Defendant-Appellant.
Appeal from the United States District Court For the Northern District of Texas
(September 2, 1992)
Before KING, HIGGINBOTHAM and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Michael Anthony Shell was sentenced within
the guidelines following his conviction on pleas of guilty to one
of two counts of making false written statements in the process of
acquiring a firearm, in violation of 18 U.S.C. § 922(a)(6), and to
one of two counts of unlawful receipt of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He was, however,
denied a reduction of six points in his offense level under
U.S.S.G. § 2K2.1(b)(1), the guideline provision for sentence
reduction "[i]f the defendant obtained or possessed the firearm ...
solely for lawful sporting purposes or collection . . . ." Shell
appeals the refusal of the district court to grant the six level
reduction for sporting purposes. Finding no error, we affirm.
I
FACTS AND PROCEEDINGS
On separate occasions Shell purchased a .30 caliber rifle and
a 9 mm. pistol from a licensed firearms dealer. On each occasion
the dealer required Shell to complete a standard ATF form that
included the question whether Shell had been convicted of a crime
punishable by imprisonment for a term exceeding one year. As Shell
had been convicted of the offense of burglary of a building and
sentenced to three years' imprisonment, his negative response to
that question was false. The investigating ATF agents went to
Shell's home and, upon entering, observed the subject rifle and
pistol in plain view. The instant charges ensued.
Pursuant to a plea agreement, Shell pleaded guilty to one
count under § 922(a)(6) and one count under § 922(g)(1). He
subsequently objected to the presentence investigation report
(PSR), claiming that he acquired the guns for lawful, recreational
purposes which entitled him to a "sporting purpose" reduction of
six points in his offense level, as required under § 2K2.1(b)1. In
support of his contention, Shell testified that he bought the guns
2 to use in target practice; that even though he lived in an
apartment in town he had access to "a lot of land out in the
country" where he could go for target practice. He bolstered his
own statements with testimony of his mother that Shell had always
lived in a rural area and owned guns for sporting purposes. Shell
also adduced testimony from his brother that, in the past, both he
and Shell had owned pistols for target practice and long guns for
deer and bird hunting. Shell's brother also testified that their
father had owned guns, and that while growing up they considered
gun ownership and use to be normal.
The district court observed that when the ATF agents entered
Shell's urban apartment they found both guns loaded; that his past
criminal history indicated a possibility that the guns might not be
used solely for a lawful sporting purpose as required by the
guideline; that the nature of the particular 9mm. handgun made it
unlikely that the pistol was acquired solely for a lawful sporting
purposes; and that giving false information to acquire the guns is
inconsistent with obtaining firearms solely for lawful sporting
purposes. In consequence of those observations the court found
Shell's evidence "not credible" and, based on the factual finding
that Shell did not acquire the guns solely for lawful sporting
purposes, denied a six-level reduction under the version of
§ 2K2.1(B)(1) that was in effect on the date of the offense.
II
ANALYSIS
For purposes of the guidelines, the sentencing court's
3 findings of fact are reviewed under the "clearly erroneous
standard.1 A felon "claiming a reduction in the offense level
[under § 2K2.1(B)(2)] bears the burden of establishing entitlement"
by a preponderance of the evidence.2 Given Shell's burden of proof
and the reasons articulated by the district court, its findings of
fact are not clearly erroneous.
As distinguished from findings of fact, application of the
facts to the guidelines is a question of law subject to de novo
review.3
The guidelines provision in effect at the time here in
question poses some doubt as to the availability of the six-level
reduction for the "false statement" violation of § 922(a)(6).
Moreover, some of the obiter dicta of our earlier opinions on the
"sporting purposes or collection" provision make our
jurisprudential rules on the subject less than lucid. Still, our
de novo review shows the district court's application of the facts
to the guidelines in this case to be free of error.
The version of the guidelines applicable to Shell is the one
promulgated effective November 1, 1989. The applicable version of
Section 2K2.1(b)(1) instructed sentencing courts that, if the
defendant "obtained or possessed the firearm ... solely for lawful
1 United States v. Mourning, 914 F.2d 699, 704 (5th Cir. 1990). 2 United States. v. Keller, 947 F.2d 739, 741 (5th Cir. 1991) (citations omitted); United States v. Alfaro, 919 F.2d 962 (5th Cir. 1990). 3 United States v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989).
4 sporting purposes or collection, decrease the offense level
determined above to level 6." (emphasis added). Although 18
U.S.C. § 922(g) is one of the crimes of conviction listed in
§ 2K2.1, Unlawful Receipt, Possession, or Transportation of
Firearms or Ammunition, and thus is one for which the offense level
was "determined above," we observe that § 922(a)(6), proscribing
the making of a false statement, is not among the crimes of
conviction listed in § 2K2.1. Nevertheless, in the "Commentary" to
§ 2K2.1, the list of "Statutory Provisions" does include
§ 922(a)(6). We therefore conclude that then, as now, the
reduction provided in § 2K2.1(b)(1) for obtaining or possessing
firearms for lawful sporting purposes or collection was potentially
available to persons who guilty of violating, inter alia,
§§ 922(a)(6) as well as 922(g)(1).
We are constrained here to clarify any perceived murkiness in
our jurisprudence on the six-level reduction provisions of
guidelines § 2K2.1(b). Some confusion might result if dicta in
United States v. Pope,4is read in pari materiae with dicta in
United States v. Buss5, both of which are firearms cases involving
defendants who were convicted felons and thus incapable of lawfully
obtaining or possessing firearms. The defendant in Pope was
charged not only with being a convicted felon in possession of an
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 91-7109 Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL ANTHONY SHELL,
Defendant-Appellant.
Appeal from the United States District Court For the Northern District of Texas
(September 2, 1992)
Before KING, HIGGINBOTHAM and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Michael Anthony Shell was sentenced within
the guidelines following his conviction on pleas of guilty to one
of two counts of making false written statements in the process of
acquiring a firearm, in violation of 18 U.S.C. § 922(a)(6), and to
one of two counts of unlawful receipt of firearms by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). He was, however,
denied a reduction of six points in his offense level under
U.S.S.G. § 2K2.1(b)(1), the guideline provision for sentence
reduction "[i]f the defendant obtained or possessed the firearm ...
solely for lawful sporting purposes or collection . . . ." Shell
appeals the refusal of the district court to grant the six level
reduction for sporting purposes. Finding no error, we affirm.
I
FACTS AND PROCEEDINGS
On separate occasions Shell purchased a .30 caliber rifle and
a 9 mm. pistol from a licensed firearms dealer. On each occasion
the dealer required Shell to complete a standard ATF form that
included the question whether Shell had been convicted of a crime
punishable by imprisonment for a term exceeding one year. As Shell
had been convicted of the offense of burglary of a building and
sentenced to three years' imprisonment, his negative response to
that question was false. The investigating ATF agents went to
Shell's home and, upon entering, observed the subject rifle and
pistol in plain view. The instant charges ensued.
Pursuant to a plea agreement, Shell pleaded guilty to one
count under § 922(a)(6) and one count under § 922(g)(1). He
subsequently objected to the presentence investigation report
(PSR), claiming that he acquired the guns for lawful, recreational
purposes which entitled him to a "sporting purpose" reduction of
six points in his offense level, as required under § 2K2.1(b)1. In
support of his contention, Shell testified that he bought the guns
2 to use in target practice; that even though he lived in an
apartment in town he had access to "a lot of land out in the
country" where he could go for target practice. He bolstered his
own statements with testimony of his mother that Shell had always
lived in a rural area and owned guns for sporting purposes. Shell
also adduced testimony from his brother that, in the past, both he
and Shell had owned pistols for target practice and long guns for
deer and bird hunting. Shell's brother also testified that their
father had owned guns, and that while growing up they considered
gun ownership and use to be normal.
The district court observed that when the ATF agents entered
Shell's urban apartment they found both guns loaded; that his past
criminal history indicated a possibility that the guns might not be
used solely for a lawful sporting purpose as required by the
guideline; that the nature of the particular 9mm. handgun made it
unlikely that the pistol was acquired solely for a lawful sporting
purposes; and that giving false information to acquire the guns is
inconsistent with obtaining firearms solely for lawful sporting
purposes. In consequence of those observations the court found
Shell's evidence "not credible" and, based on the factual finding
that Shell did not acquire the guns solely for lawful sporting
purposes, denied a six-level reduction under the version of
§ 2K2.1(B)(1) that was in effect on the date of the offense.
II
ANALYSIS
For purposes of the guidelines, the sentencing court's
3 findings of fact are reviewed under the "clearly erroneous
standard.1 A felon "claiming a reduction in the offense level
[under § 2K2.1(B)(2)] bears the burden of establishing entitlement"
by a preponderance of the evidence.2 Given Shell's burden of proof
and the reasons articulated by the district court, its findings of
fact are not clearly erroneous.
As distinguished from findings of fact, application of the
facts to the guidelines is a question of law subject to de novo
review.3
The guidelines provision in effect at the time here in
question poses some doubt as to the availability of the six-level
reduction for the "false statement" violation of § 922(a)(6).
Moreover, some of the obiter dicta of our earlier opinions on the
"sporting purposes or collection" provision make our
jurisprudential rules on the subject less than lucid. Still, our
de novo review shows the district court's application of the facts
to the guidelines in this case to be free of error.
The version of the guidelines applicable to Shell is the one
promulgated effective November 1, 1989. The applicable version of
Section 2K2.1(b)(1) instructed sentencing courts that, if the
defendant "obtained or possessed the firearm ... solely for lawful
1 United States v. Mourning, 914 F.2d 699, 704 (5th Cir. 1990). 2 United States. v. Keller, 947 F.2d 739, 741 (5th Cir. 1991) (citations omitted); United States v. Alfaro, 919 F.2d 962 (5th Cir. 1990). 3 United States v. Otero, 868 F.2d 1412, 1414 (5th Cir. 1989).
4 sporting purposes or collection, decrease the offense level
determined above to level 6." (emphasis added). Although 18
U.S.C. § 922(g) is one of the crimes of conviction listed in
§ 2K2.1, Unlawful Receipt, Possession, or Transportation of
Firearms or Ammunition, and thus is one for which the offense level
was "determined above," we observe that § 922(a)(6), proscribing
the making of a false statement, is not among the crimes of
conviction listed in § 2K2.1. Nevertheless, in the "Commentary" to
§ 2K2.1, the list of "Statutory Provisions" does include
§ 922(a)(6). We therefore conclude that then, as now, the
reduction provided in § 2K2.1(b)(1) for obtaining or possessing
firearms for lawful sporting purposes or collection was potentially
available to persons who guilty of violating, inter alia,
§§ 922(a)(6) as well as 922(g)(1).
We are constrained here to clarify any perceived murkiness in
our jurisprudence on the six-level reduction provisions of
guidelines § 2K2.1(b). Some confusion might result if dicta in
United States v. Pope,4is read in pari materiae with dicta in
United States v. Buss5, both of which are firearms cases involving
defendants who were convicted felons and thus incapable of lawfully
obtaining or possessing firearms. The defendant in Pope was
charged not only with being a convicted felon in possession of an
otherwise lawful firearm, in violation of 18 U.S.C. § 922(g), but
also with possession of a silencer, a device which, if unregistered
4 871 F.2d 506 (5th Cir. 1989) 5 928 F.2d 150 (5th Cir. 1991)
5 (as in Pope's case), is not susceptible of being lawfully obtained
or possessed without violating 26 U.S.C. § 5861(d), even by a
citizen who is not a convicted felon and therefore not laboring
under the general proscription of felons possessing firearms.
Pope insisted that he was entitled to a decrease in offense
level under the guidelines because he acquired the firearm and the
unregistered silencer for purposes of adding them to his gun
collection. In rejecting Pope's contention, this court held that
"only a lawful collection of guns can be considered as a mitigating
factor under [the applicable guideline section]"6; or, stated
another way, that "as a matter of law only a gun collection that is
not itself unlawful can be used to reduce an offense level under
[the applicable guideline]."7
From the fact situation in Pope and those two quotations, it
is clear that the gravamen of the holding is that, irrespective of
the quality of the gun collecter (e.g., a felon vis-a-vis a legally
competent, unconvicted citizen), the fact that the collection was
itself unlawful by virtue of the inclusion of the unregistered
silencer prevented Pope from obtaining the 6-level reduction.
Implicit in the Pope holding is the converse conclusion that if the
collection in question had not itself been an unlawful one, Pope
might have been eligible for the 6-level reduction for obtaining or
possessing the firearm in question as part of the gun collection,
even though as a convicted felon he would still be ineligible to
6 871 F.2d at 508. (emphasis added) 7 Id. at 509.
6 acquire or possess a collection of guns and thus would still be
guilty of the firearms offense of conviction.
That much is clear. But the possibility that a casual reading
of the Pope opinion might mislead or confuse arises from the
language of the second sentence in part V. Conclusion: "We
conclude, however, that as a matter of law Pope's accumulation of
guns cannot be used to reduce his offense level under [the
applicable guideline] because it was illegal for him to possess any
guns."8 If read out of context, that statement would seem to say
that any time the collecter cannot legally possess firearms, he or
she cannot receive the 6-level reduction. But that cannot be; if
it were, that statement would swallow the reduction guideline
itself.
As the guideline only applies to convicted felons who obtain
or possess firearms and, by definition, convicted felons can never
legally obtain or possess guns, there would be no class of persons
eligible for the 6-level reduction under such a reading. When that
concluding sentence is read in context of the pure holding of the
case, as expressed in the two passages first quoted above, it
becomes clear that the Pope test for the § 2K2.1(b) reduction
hinges on the lawfulness of the gun collection, not the eligibility
of the collector to possess guns.
Subsequent to Pope, we examined in Buss9 a virtually identical
4-level reduction under a parallel guideline provision, one also
8 Id. at 510 (emphasis added). 9 928 F.2d 150 (5th Cir. 1991).
7 implicating sporting purposes and gun collections.10 In Buss, the
court considered a convicted felon's contention that the sentencing
court erred in accepting the probation officer's recommendation to
deny the 4-level reduction under the sporting purpose exception
"because Buss could not lawfully possess firearms. . . ." Citing
Pope, the government argued that, as Buss was a convicted felon, he
could not lawfully possess guns and therefore was ineligible for
the 4-level reduction. Consistent with the foregoing analysis of
Pope, however, the Buss panel rejected the government's
interpretation, holding that it "would render [ ] § 2K2.1(b)(2) a
nullity, because the provision applies only to the receipt,
possession, or transportation of firearms by `prohibited persons,'
or persons who could not lawfully possess them. . . . [T]he
drafters of the provision contemplated the lawfulness of the
intended use as a factor separate from the lawfulness of the
possession itself."11 Had the Buss opinion stopped there, the
potential for confusion with Pope would have never arisen. But,
albeit in dicta, the Pope opinion continued its efforts to
distinguish Buss from Pope on grounds that Pope implicated
"unregistered firearms."12 The Buss opinion first states clearly--
and correctly--that the guideline provision in question authorized
the reduction in level not only for use in sport or recreation but
also for use in a gun collection. Perhaps unfortunately, however,
10 § 2K2.1(b)(2). 11 928 F.2d at 152. (emphasis in original) 12 Id.
8 the Buss opinion conclude by stating that gun collecting is little
more than "possession," implying that collecting is not a use
separate and apart from possession, while hunting and other
recreational shooting are uses distinct from possession.
In addition to being dictum, that distinction appears to
conflict with the guideline provisions it purports to explain,
§§ 2K2.1(b)(2) and (3). Both of those provisions direct that
reductions be granted in sentence levels for those felons who, in
contravention of the law, possess the firearms. Clearly, those
level reductions are not based on the lawfulness of possession
because there can be no lawful possession of a gun by a convicted
felon. Rather, the reductions are grounded on the sentencing
commission policy that some types of illegal possessions are
relatively benign by virtue of the use for which such possession is
intended--use that would be lawful if exercised by one not
previously convicted of a felony.
Both of the subject guideline provisions recognize that
possession of a firearm is a physical fact and is always illegal if
the possessor is a felon; but that in addition to the physical fact
of possession there is the subjective quality of the possession,
determined by the use intended by the possessor. This is better
understood by recognizing that the sentencing levels established in
the guidelines presume that when the person physically possessing
the firearm is a felon the purpose or intended use is nefarious
whether it be for armed robbery, aggravated assault, facilitating
a drug transaction,or the like. The guidelines nevertheless
9 recognize the possibility that even a felon's acquisition or
possession of a firearm can be benign when the intended use of the
gun is "solely" for one of two purposes that would be lawful were
the possessor not a felon: either (1) sporting or recreational
use, such as hunting, target practice or competition; or (2) gun
collecting--like hunting or target practice, a specialized use of
a gun legitimately acquired or possessed.
The point of this verbose analysis is to make clear that the
reduction provisions of the guidelines for felons in possession do
not turn on the axiomatic truism that a felon can never lawfully
possess a firearm. The entire reduction provision would clearly be
subsumed in such a proposition. Rather, the availability of the
reduction turns on the purpose or use for which the firearm is
acquired or possessed and the lawfulness of such use if it were to
be exercised by a citizen not under any legal disability--lawful
hunting, lawful target practice, or lawful gun collecting. The
unavailability of the reduction in Pope stemmed not from the fact
that felons cannot possess guns in a collection, but from the
unlawful nature of the gun collection--one which included an
unregistered silencer--because even a citizen free of all
disabilities could not lawfully possess such a collection. The
same would be true, for example, if the felon possessed a shotgun
for the purpose of hunting wild turkey, but did so out of season,
in an illegally baited area. As that would be an unlawful sporting
possession by any citizen, the sporting purpose reduction would be
unavailable to the convicted felon. Likewise, if a felon
10 possessing a target rifle were apprehended while shooting out
street lights within the city limits, the reduction would not be
available because his shooting would not be lawful target practice
even if the shooter were not a convicted felon.
Under such an analysis, it becomes even clearer that Shell, as
a convicted felon, was properly denied the 6-level reduction. Even
though under certain circumstances his .30 caliber rifle and a 9mm.
pistol could be possessed solely for lawful sporting purposes, the
facts found by the district court reflect that such was not the
case here. None but the most negligent of target shooters would
keep legitimate sporting firearms loaded in the home. Moreover, it
is not sufficient that one among several intended uses might be
lawful recreation or collection; one of those must be the sole
intended uses. The district court did not credit Shell's
contention that he falsified the ATF form to purchase the guns and
thereafter kept them loaded in his house, solely for lawful
recreation purposes. Particularly in light of Shell's criminal
history, we are loathe to label the findings of the sentencing
court clearly erroneous.
AFFIRMED.