United States v. Hinshaw

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 12 1999
TENTH CIRCUIT
__________________________ PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-3165
(D. Kan.)
DOUGLAS L. HINSHAW, (D.Ct. No. 97-CR-10097-02-MLB)

Defendant-Appellant.
____________________________

ORDER AND JUDGMENT *

Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Defendant-Appellant Douglas L. Hinshaw appeals his jury conviction on

*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
one count of violating 18 U.S.C. § 922(d), for knowingly disposing of or

delivering a firearm, knowing or having reasonable cause to know the individual

to whom he delivered or disposed of the firearm had been convicted of a crime

punishable by imprisonment for a term exceeding one year. All the issues raised

by Mr. Hinshaw concern a two-level enhancement of his sentence under § 3B1.3

of the United States Sentencing Guidelines. We exercise jurisdiction under 28

U.S.C. § 1291 and remand for resentencing.

I. Factual Background

Mr. Hinshaw is a gun collector who possesses a total of sixty-five firearms,

and holds a federal firearms dealer’s license. He is also a business acquaintance

of Garvin Mead, a convicted felon, for whom he purchased and ultimately

delivered the gun at issue. Mr. Mead attempted to trade a gold chain for a .45

caliber Ruger Blackhawk revolver at a local pawn shop. However, he never filled

out the required Alcohol, Tobacco and Firearms (ATF) forms to complete the

transaction. After a co-worker failed to purchase the gun for him, Mr. Mead

telephoned the pawn shop and asked how he could obtain it. The proprietor, who

did not know of his prior felony convictions, told Mr. Mead he must fill out the

required ATF forms and wait five days to get the gun, or a federal firearms

licensee could come in and pick it up without observing the waiting period.

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 The next day, Mr. Hinshaw, at Mr. Mead’s request, brought the same gold

chain to the pawn shop and traded it for the .45 caliber Ruger Blackhawk. When

the proprietor informed Mr. Hinshaw of his difficulty in testing the gold chain to

ensure its quality, Mr. Hinshaw replied he would “have to take it up with Garvin.”

Mr. Hinshaw signed and dated his federal firearms license and then gave it to the

proprietor. Although Mr. Hinshaw previously purchased guns from the pawn

shop, he had never used his federal firearms license.

Later that day, Mr. Mead and his wife came to Mr. Hinshaw’s home to

obtain the gun. At that time, Mr. Hinshaw claims he first became aware of Mr.

Mead’s felony convictions and refused to turn the gun over to Mr. Mead. Instead,

he gave it to Mr. Mead’s wife. After delivery of the gun, Mr. Hinshaw did not

make an entry of the transaction in his acquisition and disposition record or fill

out any of the required ATF forms. He also failed to notify the appropriate ATF

division within forty-eight hours that he no longer possessed the gun, as required

by ATF regulations.

The next day, through a search warrant and with cooperation from Mr.

Mead’s wife, police recovered several items stolen by Mr. Mead, along with the

.45 caliber Ruger Blackhawk. The police traced the gun to the pawn shop,

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interviewed its proprietor, and discovered Mr. Hinshaw purchased the gun for Mr.

Mead.

II. Sentencing

The jury found Mr. Hinshaw guilty of violating 18 U.S.C. § 922(d) for

knowingly disposing of or delivering a firearm to Garvin Mead, knowing or

having reasonable cause to know Mr. Mead had been convicted of a crime

punishable by imprisonment for a term exceeding one year. Prior to sentencing,

the United States Probation officer issued a presentence report suggesting a two-

level enhancement of his sentence under § 3B1.3 of the United States Sentencing

Guidelines. This guideline requires an upward adjustment for “persons who

abuse their positions of trust or their special skills to facilitate significantly the

commission or concealment of a crime.” See U.S.S.G. § 3B1.3, comment.

(backg’d). Specifically, the presentence report, in addressing § 3B1.3, stated:

The defendant is a licensed federal firearms dealer. He used this license to
purchase the firearm in question. He then provided the firearm to a
convicted felon and did not record the transaction or provide information to
the Bureau of Alcohol, Tobacco and Firearms. He definitely used his
position as a dealer, and his license, to facilitate the commission of the
offense conduct and attempt to conceal it. Thus, an enhancement for a
violation of position of trust or special skill is appropriate.

Mr. Hinshaw objected to the § 3B1.3 enhancement report prior to and during the

sentencing hearing.

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 At the sentencing hearing, the judge overruled Mr. Hinshaw’s objection,

determining the federal firearms license held by Mr. Hinshaw amounted to “a

special skill within the meaning of Section 3B1.3.” Relying on United States v.

Gandy, 36 F.3d 912 (10th Cir. 1994), the judge stated “I think that if the

government gives someone a federal firearms license that the government intends

to ... follow the law with respect to that license and not abuse the license ... and

under Gandy, element one has been met.”

Having found the firearms licence provided Mr. Hinshaw with a special

skill, the sentencing judge next found Mr. Hinshaw used that special skill to

facilitate the offense by using his license to obtain a gun for “a person who he

knew or had reasonable cause to believe ... couldn’t get one.” He determined the

firearms license “did make it easier ... to commit the offense, which was to

deliver a firearm to Garvin Mead. ... The [Gandy] case goes on to say the

defendant uses his special skill if he uses that skill to facilitate the commission of

his offense. And that’s what I believe the facts show.” He stated “the gravamen

of what he did ... is that he had to know that Garvin Mead wasn’t entitled to

possess a weapon under any circumstances whether it be one day, five days or

five years.... [B]y using the license to get it ... he knew he was gonna turn that

weapon over to Garvin Mead.” In rendering the sentence, the court adopted the

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presentence report’s U.S.S.G. § 3B1.3 enhancement recommendation, adding the

two-level increase to the base offense level. The resulting sentence included

imprisonment of twenty-one months, two years supervised release, and a $100

special assessment.

III. Appeal

In his appeal, Mr. Hinshaw contests only the U.S.S.G. § 3B1.3

enhancement of his sentence. In support, he raises several compound arguments

which we reduce to the following contentions: (1) as a federal firearms licensee,

he did not hold a position of trust characterized by professional or managerial

discretion; (2) his firearms license did not create a position of trust or special

skill providing an opportunity to commit an offense since delivering a firearm to a

convicted felon is something any person could do; (3) his failure to comply with

federal firearms license record-keeping requirements did not establish special

skills for the purposes of U.S.S.G. § 3B1.3; (4) his failure to keep proper records

did not significantly facilitate concealment of the offense; (5) even if he did hold

a position of trust by using his firearms license, the use of his license did not

contribute to the concealment of the offense, but actually made detection of the

offense easier; and (6) his innocent purchase of the firearm with his license did

not facilitate the offense because he discovered Mr. Mead’s conviction only after

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purchasing the gun.

IV. Discussion

For the purpose of enhancing a sentence, U.S.S.G. § 3B1.3 requires an

upward adjustment for “persons who abuse their positions of trust or their special

skills to facilitate significantly the commission or concealment of a crime.” See

U.S.S.G. § 3B1.3, comment. (backg’d) (emphasis added). Mr. Hinshaw’s

argument centers, in part, on whether his firearms license created “a position of

trust.” While the sentencing judge mentioned the possibility Mr. Hinshaw may

have abused his position of trust with the federal government, he found, for the

purpose of enhancing Mr. Hinshaw’s sentence, he possessed a “special skill.” In

its brief, the federal government argues only that Mr. Hinshaw possessed a special

skill. Therefore, we need not determine whether Mr. Hinshaw abused a position

of trust, only whether he possessed a special skill that facilitated the commission

or concealment of the offense. We review the district court’s factual findings Mr.

Hinshaw possessed a special skill and that he used his special skill to facilitate

the commission or concealment of his offense, for clear error. See Gandy, 36

F.3d at 914.

We begin with an inquiry under U.S.S.G. § 3B1.3 to determine whether Mr.

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Hinshaw possessed a “special skill” in light of having and then using his federal

firearms license. Webster’s dictionary defines “skill” as “the learned power of

doing something competently: a developed or acquired aptitude or ability.”

Webster’s Third Int’l. Dictionary, at 2133 (1981 ed.). The commentary to

§ 3B1.3 explains that a special skill refers to “a skill not possessed by members of

the general public and usually requiring substantial education, training or

licensing.” See U.S.S.G. § 3B1.3, comment., n. 3. Examples include “pilots,

lawyers, doctors, accountants, chemists, and demolition experts.” Id. We

recognize a defendant need not complete formalized educational or licensing

requirements in order to possess a special skill. A special skill can also come

from experience or from self-teaching. Gandy, 36 F.3d at 914. To apply a

U.S.S.G. § 3B1.3 enhancement, the skill “‘must be more than the mere ability to

commit the offense.’” See United States v. Burt, 134 F.3d 997, 999 (10th Cir.

1998) (quoting United States v. Young, 932 F.2d 1510, 1513 (D.C. Cir. 1991)).

In applying this court’s definition of “special skill” to Mr. Hinshaw, we

next examine the qualifications and duties required of a federal firearms dealer.

The term “dealer” is defined as any person engaged in the business of selling

firearms at wholesale or retail. See 18 U.S.C. § 921(a)(11). Dealers in firearms

must be licensed by the ATF Bureau and must comply with ATF regulations

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governing their conduct. See United States v. Bailey, 123 F.3d 1381, 1385 n. 1

(11th Cir. 1997) (citing 18 U.S.C. § 923(a)(3); 27 C.F.R. §§ 178.1-.171).

Firearms licenses are only issued to “qualified applicants.” 18 U.S.C. § 923(c).

An applicant is qualified if he meets the requirements listed in 18 U.S.C.

§ 923(d)(1). These requirements are somewhat perfunctory, stating an applicant

must: (1) be at least twenty-one years old; (2) not be prohibited from

transporting, shipping or receiving firearms in interstate or foreign commerce; (3)

not have willfully violated any federal provisions or regulations concerning

firearms; (4) not have willfully failed to disclose any material information on the

application; (5) have a location in a state from which the license business is

conducted; and (6) certify the business will be conducted pursuant to state or

local law. See 18 U.S.C. § 923(d)(1)(A) through (F). None of these requirements

or qualifications appear to require any “developed or acquired aptitude or ability”

in firearms use or trade. The application must also include a photograph and

fingerprints of the applicant, and the appropriate fee. 27 C.F.R. § 178.44(a) and

(b).

Once licensed, firearms dealers may purchase firearms without filling out

the otherwise required ATF forms or waiting the required five-day period. See 27

C.F.R. § 178.102(a). In addition, licensed dealers must keep records of their

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firearms transactions and obtain advance approval from the ATF Bureau for

certain transactions. See Bailey, 123 F.3d at 1385 n.1 (citing 18 U.S.C. § 923(g);

26 U.S.C § 5812; 27 C.F.R. §§ 178.101, 178.121-178.129). Finally, they must

submit to certain examinations and searches by ATF inspectors. Id. (citing 18

U.S.C. § 923(g); 27 C.F.R. § 178.23). In Mr. Hinshaw’s case, the record shows

he filled out the required license application packet and later received instruction

from a visiting ATF agent, who advised him of his duties as a federal firearms

licensee, including the prohibition against performing “straw purchases” for

another.

Having reviewed the qualifications and duties of a firearms dealer, we

proceed to the question of whether Mr. Hinshaw’s license qualifies as a “special

skill.” Mr. Hinshaw contends almost anyone can deliver a firearm to a convicted

felon. The only difference between the general public and Mr. Hinshaw is that

his federal firearms license enabled him to obtain the gun without filling out ATF

forms and waiting the required five days. He then provided the gun to Mr. Mead,

performing the prohibited “straw purchase.” Thus, he possessed the ability to

purchase, without delay, the gun later delivered to Mr. Mead. However, “skill”

requires something “more than the mere ability to commit the offense. See Burt,

134 F.3d at 999. The mere fact that Mr. Hinshaw holds a firearms license giving

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him immediate access to a gun is not enough to demonstrate the kind of “special

skill” contemplated under U.S.S.G. § 3B1.3. The special skills involved in

licensing pilots, lawyers, doctors, and accountants are not comparable to the

somewhat perfunctory qualifications the law requires to obtain a firearms license

or comply with ATF record and transaction requirements.

Applying the § 3B1.3 sentencing guideline to these facts, we conclude the

sentencing judge’s finding that a federal firearms license is, in and of itself, a

“special skill,” is based on nothing more than a mere conclusion. Accordingly,

we find the district court’s two-level sentence enhancement under U.S.S.G.

§ 3B1.3 clearly erroneous. Having found possession of a federal firearms license

itself is not a “special skill” for the purpose of enhancement under U.S.S.G.

§ 3B1.3, we need not determine whether the sentencing judge erred in finding Mr.

Hinshaw used his firearms license to “significantly facilitate the commission or

concealment of” a crime. See Gandy, 36 F.3d at 915.

For the foregoing reasons, we REMAND to the district court with

instructions to vacate the sentence and resentence in conformity with this order.

Entered by the Court:

WADE BRORBY
United States Circuit Judge

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