United States v. Nichols

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4233

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MICHAEL KEITH NICHOLS,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00232-JAB-1)

Submitted: November 5, 2009 Decided: January 4, 2010

Before MOTZ, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

John D. Bryson, WYATT EARLY HARRIS & WHEELER, LLP, High Point,
North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Terry M. Meinecke, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Michael Keith Nichols pled guilty to unlawful

possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g)(1) (2006), and was sentenced to a term of thirty

months imprisonment. He appeals his sentence, alleging that the

district court erred in failing to make a reduction under U.S.

Sentencing Guidelines Manual § 2K2.1(b)(2) (2008), for firearms

possessed solely for lawful sporting purposes or collection, and

failed to consider properly the 18 U.S.C. § 3553(a) (2006)

factors in imposing sentence. We affirm.

We review a sentence for reasonableness under an abuse

of discretion standard. Gall v. United States, 552 U.S. 38,

___, 128 S. Ct. 586, 597 (2007). This review requires

consideration of both the procedural and substantive

reasonableness of a sentence. 128 S. Ct. at 597. After

determining whether the district court properly calculated the

defendant’s advisory guideline range, we must then consider

whether the district court considered the § 3553(a) factors,

analyzed the arguments presented by the parties, and

sufficiently explained the selected sentence. Gall, 128 S. Ct.

at 596-97; United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009). Finally, we review the substantive reasonableness of the

sentence, “taking into account the totality of the

2
circumstances[.]” United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007).

Nichols first contests the district court’s decision

that the exception in § 2K2.1(b)(2) for lawful sporting purposes

or collection did not apply. Subsection (b)(2) provides that,

“[i]f 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 offense level should be reduced to 6. The

commentary to § 2K2.1 states that the “surrounding

circumstances” relevant to the determination 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.” USSG § 2K2.1

cmt. n.6. Nichols contends that the district court erred by

misinterpreting the term “solely.” The district court’s

interpretation of a guideline term is a legal issue reviewed de

novo. United States v. Souther, 221 F.3d 626, 628 (4th Cir.

2000).

Nichols argues that the district court overemphasized

the term “solely” by holding that his non-sporting use of one

firearm disqualified him from receiving the reduction. He

3
relies on United States v. Gaines, 276 F. Supp. 2d 570, 573

(N.D. W. Va. 2003) (holding that defendant was not disqualified

simply because he pawned one of two firearms otherwise used only

for hunting). He also argues that this court should “give great

deference to the now constitutionally recognized significance of

protection,” based on the Supreme Court’s decision in District

of Columbia v. Heller, 128 S. Ct. 2783 (2008) (holding that the

Second Amendment guarantees an individual’s right to possess and

carry arms).

Gaines is not binding here, and Heller is inapposite

because it does not deal with violations of § 922(g)(1). We

held in United States v. Solomon, 274 F.3d 825, 828-29 (4th Cir.

2001), that “even a sportsman or collector is not entitled to a

reduction under § 2K2.1(b)(2) unless he possesses a firearm

exclusively for sporting or collection purposes.” In Solomon,

while not directly addressing the issue presented here, we

explicitly equated “solely,” as used in § 2K2.1(b)(2) with

“exclusively.” Therefore, we conclude that the district court

correctly applied § 2K2.1(b)(2) in this case and correctly

denied Nichols the reduction.

Nichols next contends that the district court failed

to consider the nature of his offense as required under

§ 3553(a)(1) because, although the court acknowledged that

Nichols may have believed his conduct was legal, the court did

4
not find that factor sufficient to warrant a sentence of

probation. Nichols also asserts that the district court’s

ruling indicated that “it believed that considering the nature

and circumstances of the offense was limited to determining a

sentence within the guideline range.”

In § 3553(a)(1), the district court is directed to

consider “the nature and circumstances of the offense and the

history and characteristics of the defendant[.]” “When

rendering a sentence, the district court ‘must make an

individualized assessment based on the facts presented.’”

Carter, 564 F.3d at 328 (quoting Gall, 128 S. Ct. at 597).

Thus, “‘[t]he sentencing judge should set forth enough to

satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal

decision making authority.’” Id. (quoting Rita v. United

States, 551 U.S. 338, 356 (2007)); see United States v. Moulden,

478 F.3d 652, 658 (4th Cir. 2007).

Here, the court considered the nature of the offense

as required under § 3553(a)(1), as well as Nichols’ history and

characteristics. The court’s disagreement with Nichols’

position was not a procedural error. Moreover, the record

contains nothing that suggests the court believed it could not

impose a sentence below the guideline range. Before imposing

sentence, the district court noted that Nichols may have been

5
ignorant of the fact that his conduct was unlawful, that he had

a consistent history of gainful employment, and that he had

accepted responsibility for his offense. The court stated that,

“[t]aking all these matters into account,” a sentence within the

guideline range was appropriate. Although the court did not

discuss all the § 3553(a) factors, it responded to the parties’

arguments and provided an individualized assessment.

Accordingly, we affirm the sentence. We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

6