United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 1, 2007
Charles R. Fulbruge III
Clerk
No. 06-30860
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSEPH E. FAUSPHOUL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:06-CR-10010-1
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Joseph E. Fausphoul appeals the 27-month sentence he
received after his guilty-plea conviction for being a felon in
possession of ammunition. He argues that the district court
erred in its interpretation and application of the Sentencing
Guidelines. He also argues that the sentence of 27 months of
imprisonment is unreasonable and constitutes an abuse of
discretion.
Fausphoul argues that the district court erred in applying
the four level enhancement of § 2K2.1(b)(1)(B) on the basis that
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-30860
-2-
his offense of possession of ammunition in February 2006 involved
17 firearms possessed in January and March of 2005. The district
court’s findings that Fausphoul had knowledge and access to all
17 firearms is not clearly erroneous. Fausphoul’s challenge to
the court’s interpretation and application of the guidelines
lacks merit.
Fausphoul also argues that the finding that the possession
of ammunition “involved” the possession of the firearms as
“relevant conduct” was erroneous because no firearms were found
at the time the ammunition was discovered, the ammunition
belonged to others, and the possessions were temporally remote.
Under § 1B1.3, conduct is deemed relevant conduct regarding
another offense for enhancement purposes when the “acts and
omissions . . . were part of the same course of conduct or common
scheme or plan as the offense of conviction.” When “activities
are relatively remote in time from the offense of conviction, a
stronger showing of similarity or regularity is necessary to
compensate for the absence of temporal proximity in order for the
offenses to be part of the same course of conduct.” United
States v. Miller, 179 F.3d 961, 966-67 (5th Cir. 1999)(internal
quotation and citation omitted). Nevertheless, even if a time
span of more than a year separates the offenses, the court may
find the offenses part of the same course of conduct when other
factors are strong enough to support the finding. United States
No. 06-30860
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v. Wall, 180 F.3d 641, 646 (5th Cir. 1999); § 1B1.3(a)(2) and
comment. (n. 9(A) and (B)).
Fausphoul possessed firearms in January of 2005; he
possessed firearms and ammunition in March of 2005; and he
possessed in February of 2006 a significant amount of ammunition
that could be used in the firearms previously discovered.
Fausphoul possessed the firearms and ammunition after a felony
conviction. He possessed distinctively similar firearms
(shotguns) and the ammunition could be used in some of those
seized firearms. Fausphoul’s pattern of behavior of possessing
illegal firearms and ammunition on three occasions over a time
span of 14 months was sufficiently similar and regular under the
facts presented to constitute the same course of conduct. See
United States v. Brummett, 355 F.3d 343, 344 (5th Cir. 2003).
Thus, the district court’s finding that the possession of the
firearms was connected in terms of “relevant conduct” with the
ammunition discovered a year later was not clearly erroneous.
Fausphoul also argues that the district court erred in
failing to apply the sporting/collection exception of
§ 2K2.1(b)(2) because the firearms and ammunition at issue were
either hunting firearms, antiques, or family heirlooms. In light
of testimony from Fausphoul’s own witness, his ex-wife, that he
had not hunted since his 1997 felony conviction; testimony from
agents that Fausphoul never mentioned hunting or collecting when
questioned about the firearms; and evidence that some of the
No. 06-30860
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firearms were found loaded and that others were not stored in a
manner consistent with a “collection,” there is insufficient
support for Fausphoul’s assertion that the firearms found in the
search of his home were used for sporting or collection purposes.
Accordingly, the district court did not err in finding that
Fausphoul had not proven the exception by a preponderance of the
evidence.
Fausphoul further argues that his sentence of 27 months of
imprisonment is unreasonable. Because the district court
sentenced Fausphoul in the middle of the properly calculated
guideline range of 24 to 30 months of imprisonment, this court
infers that the district court took the § 3553(a) factors into
consideration when it sentenced Fausphoul to a 27-month term of
imprisonment. See United States v. Mares, 402 F.3d 511, 519 (5th
Cir.), cert. denied, 126 S. Ct. 43 (2005).
The district court’s judgment is AFFIRMED.