F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
May 16, 2006
UNITED STATES CO URT O F APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
v. No. 05-8058
RO BERT JAM ES SANDERS,
Defendant - Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF W YOM ING *
(D .C. NO. 05-CR-15-D)
James H. Barrett, Assistant Federal Public Defender (Raymond P. M oore, Federal
Public D efender, with him on the brief), Cheyenne, W yoming, for the Defendant -
Appellant.
Kerry J. Jacobson, Assistant United States Attorney (M atthew H. M ead, United
States Attorney, with him on the brief), Lander, W yoming, for the Plaintiff -
Appellee.
Before TA CH A, HA RTZ, and TYM KOVICH, Circuit Judges.
HA RTZ, Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Robert James Sanders appeals his sentence on a conviction for possession
of a firearm by a convicted felon. He contends that the district court erred by not
applying the sentencing guideline that reduces the offense level when the firearm
is possessed solely for a “sporting” purpose. W e hold that the district court could
properly decline to apply the guideline on the ground that M r. Sanders had
threatened to shoot various persons with a firearm, even though he was not
carrying a firearm when he made the threats.
I. B ACKGR OU N D
On January 20, 2005, a federal grand jury returned a two-count indictment
against M r. Sanders. Count one charged possession of three firearms after a
previous felony conviction, see 18 U.S.C. § 922(g)(1), and count two charged
possession of the three firearms following a misdemeanor domestic-violence
conviction, see id. § 922(g)(9). Under a plea agreement M r. Sanders pleaded
guilty to count two, and count one was dismissed.
The presentence report (PSR ) calculated a base offense level of 14,
see United States Sentencing G uidelines (USSG) § 2K 2.1(a)(6), plus an increase
of two levels because the offense involved three firearms, see id. § 2K2.1(b)(1).
W ith a three-level downward adjustment for acceptance of responsibility, see id.
§ 3E1.1, the total offense level became 13. M r. Sanders’s criminal history placed
him in category III, resulting in an advisory Guidelines range of 18-24 months.
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Before sentencing, M r. Sanders filed a memorandum contending that the
offense level should be reduced to six under USSG § 2K2.1(b)(2), which
provides:
If the defendant, other than a defendant subject to [certain provisions
inapplicable here], possessed all ammunition and firearms solely for
law ful sporting purposes or collection, and did not unlaw fully
discharge or otherwise unlawfully use such firearms or ammunition,
decrease the offense level determined above to level 6.
A supplemental addendum to the PSR stated that the exception did not apply
because “repeated threats to inflict deadly harm upon others indicate the
defendant did not possess these firearms ‘solely’ for lawful sporting purposes or
collection. The burden rests upon the defendant to prove otherwise.”
R. Vol. 4 Supp. Add.
The district court conducted an evidentiary hearing regarding these threats.
Officer Robert Cercle of the Lander, W yoming, police department testified as
follows: On November 17, 2004, M r. Sanders appeared in court in Lander on a
child-custody dispute. Deputy John Applegate had heard rumors that M r. Sanders
had threatened people involved in the dispute. W hen he questioned M r. Sanders
outside the courtroom, M r. Sanders told him that although he had no intention of
doing anything in court that day, if his children were taken away he would shoot
people and police would have to kill him to stop him.
The next day Jason Southwick, the Department of Family Services
employee in charge of the case, called police to report that Kathy Kendall,
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M r. Sanders’s mother-in-law, had told him that M r. Sanders had become upset at
the prospect of having to be chaperoned while he visited his children and had said
that he was going to put a bullet in M r. Southwick’s head. Officer Cercle called
M r. Sanders’s cell phone and attempted to speak with him, but he hung up. A few
minutes later M r. Sanders called back to speak with Officer Cercle and explained
to him “why he had the right to shoot people.” R. Vol. 2 at 12. He told Officer
Cercle, “I’ll let my rifle do the talking for me,” id., and, “The only way you can
stop me from shooting people is to shoot me,” id. at 13.
M r. Sanders was located and arrested shortly thereafter. He told the
arresting officers that they did not need their rifles because he did not have his
with him. One of the officers asked M r. Sanders why he was threatening people,
to which he responded, “[T]hese are not threats; these are promises.” Id. at 33. A
search of M r. Sanders’s trailer revealed three rifles. Although no amm unition
was found, Officer Cercle testified that it could easily be purchased at several
locations in the small town.
M r. Sanders testified that he used the rifles only for hunting. He denied
making any statements at the custody hearing other than “if my kids get taken
from me it will kill me.” Id. at 40. According to his testimony, he was not upset
after the hearing and actually had coffee with his wife and her parents, and then
picked his children up from school and took them to his house. He returned them
to their grandmother, M s. Kendall, that evening. She called him the next day and
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told him that M r. Southwick had said he needed supervision when he visited the
kids, which made him angry:
[Defense Counsel]: Did you threaten to put a bullet in
M r. Southwick’s head?
[M r. Sanders]: I don’t recall exactly what I said.
Id. at 43. He also could not recall the specifics of his conversation with Officer
Cercle:
[Defense Counsel]: Is it your— would it be your position that you
may have said those things but you don’t recall them?
[M r. Sanders]: I may have said some of them things, yes.
Id. at 47. Finally, he testified that he did not have his guns with him at any point
on November 17 or 18, and never threatened to kill anyone.
In a written order the district court held that the sporting-purpose exception
did not apply. It found that M r. Sanders had made the threats described by
Officer Cercle. It also found that M r. Sanders w as not in possession of a firearm
when any of the threats w ere made. The court framed the issue as follows:
If the Defendant had made no threats at any time, it would be clear
that the firearms were possessed solely for lawful sporting purposes.
Indeed, the Defendant had hunted with the firearms in the past and
there is no evidence that he ever “used” them for anything other than
lawful sporting purposes. Conversely, if the Defendant had
brandished the firearms while making threats to inflict bodily harm,
he certainly could not make use of the exception. See United States
v. Borer, [412 F.3d 987, 993-94] (8th Cir. 2005). W hether the verbal
threats, made while the firearms w ere not in the immediate
possession of the Defendant, are sufficient to convert the purpose of
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the firearms to something other than lawful sporting purposes is a
matter of first impression.
R. Vol I Doc 44 at 10-11. The district court then concluded that “the Defendant’s
specific threats to use a firearm to inflict bodily harm, coupled with his access to
the firearms and the relative ease with which he could have obtained ammunition,
foreclose application of the ‘sporting purposes exception.’” Id. at 11; see also id.
at 12 (“Given the Defendant’s direct threats to use firearms to inflict death or
injury and his access to firearms and ammunition, the Court cannot conclude that
the firearms were possessed solely for the innocent purpose of hunting.”). The
court proceeded to consider the Guidelines range and the other factors set forth in
18 U.S.C. § 3553(a), and sentenced M r. Sanders to 15 months’ imprisonment.
II. D ISC USSIO N
W e now review sentences under a reasonableness standard. See United
States v. Kristl, 437 F.3d 1050, 1053 (10th Cir. 2006). Reasonableness review
“encompasses both the reasonableness of the length of the sentence, as well as the
method by which the sentence was calculated.” Id. at 1055. Because the
Guidelines must still be considered when imposing a sentence, “[a] sentence
cannot . . . be considered reasonable . . . if it was based on an improper
determination of the applicable Guidelines range.” Id. In determining whether
the Guidelines range was correctly calculated “we review factual findings for
clear error and legal determinations de novo.” Id. at 1054; see United States v.
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Bayles, 310 F.3d 1302, 1308 (10th Cir. 2002) (“W e review the district court’s
factual determination that the firearm was not intended ‘solely for lawful sporting
purposes or collection’ for clear error.”). M r. Sanders contends that his sentence
is unreasonable because the district court failed to apply correctly USSG
§ 2K2.1(b)(2) to reduce his sentence.
“It is the defendant’s burden to show the applicability of U.S.S.G.
§ 2K2.1(b)(2).” United States v. Collins, 313 F.3d 1251, 1254 (10th Cir. 2002).
“The text of the provision requires a defendant to show two things: (1) that the
defendant ‘possessed all ammunition and firearms solely for lawful sporting
purposes or collection’ and (2) that he ‘did not unlawfully discharge or otherwise
unlawfully use such firearms or ammunition.’” Id. It is undisputed in this case
that M r. Sanders did not “unlawfully discharge or . . . use” the firearms. W e
focus, then, on whether he “possessed” them “solely for lawful sporting purposes
or collection.”
The purpose for which the firearm is possessed is “determined by the
surrounding circumstances.” USSG § 2K2.1 cmt. 7. “Relevant surrounding
circumstances include the number and type of firearms, the amount and type of
amm unition, the location and circumstances of possession and actual use, the
nature of the defendant’s criminal history . . . , and the extent to which possession
was restricted by local law.” Id.
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Here, M r. Sanders repeatedly stated that he intended to shoot someone with
his firearms. Perhaps he was just venting anger or bluffing. But it would be
reasonable to infer that he actually meant to use the rifles for such a purpose, or,
if not to fire them, to coerce others by instilling fear that he would fire them.
Thus, although it was uncontroverted that he had obtained the rifles for hunting
and that had been their sole prior use, the court could properly find that in
addition to this sporting purpose M r. Sanders had acquired the new purpose for
possessing the firearms of using them to coerce and injure people. One can have
a purpose for possessing a firearm before actually using the firearm for that
purpose. For example, one who has bought a rifle to use for hunting has
“hunting” as a purpose for possessing the rifle even if he has not yet gone on a
hunting trip. The district court did not clearly err in finding that M r. Sanders had
failed to meet his burden of showing that his exclusive purpose for possessing the
rifles was “sporting,” as required by § 2K2.1(b)(2).
III. C ON CLU SIO N
The district court did not improperly apply the G uidelines, and M r. Sanders
does not otherw ise challenge the reasonableness of his sentence. See Kristl, 437
F.3d at 1054 (“[A] sentence that is properly calculated under the Guidelines is
entitled to a rebuttable presumption of reasonableness.” (internal quotation marks
omitted)). W e AFFIRM the judgment of the district court.
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