United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-30616
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RONALD M. LELEAUX, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
(3:05-CR-195-1)
Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Ronald Leleaux, Jr., appeals the sentence imposed following
his guilty-plea conviction for knowingly possessing a firearm after
having been convicted previously. He contends the district court:
improperly refused to reduce his offense level pursuant to advisory
Sentencing Guidelines § 2K2.1(b)(2) (decreasing offense level to
six if firearm possession was solely for lawful sporting purposes
or collection); and, in upwardly departing from his offense level,
*
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this opinion should not be published and is not precedent except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.
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failed to properly apply 18 U.S.C. § 3553 (stating sentencing
factors). AFFIRMED.
I.
In March 2005, Leleaux pawned a Mossberg 16 gauge shotgun.
The resulting criminal-history check revealed he had several
domestic-violence convictions and was therefore prohibited from
possessing the firearm.
Leleaux pleaded guilty to one count of knowingly possessing a
firearm, after having been convicted previously of a misdemeanor
domestic-violence crime, in violation of 18 U.S.C. § 922(g)(9).
The pre-sentence investigation report (PSR) recommended a base-
offense level of 14, pursuant to Guidelines § 2K2.1(a)(6), less a
two-level acceptance-of-responsibility reduction. Based on
Leleaux’s numerous prior convictions, the PSR recommended 18
criminal-history points, resulting in a criminal-history category
of VI. Leleaux’s resulting recommended guidelines range was 30 to
37 months. The PSR also stated Leleaux had approximately 15
convictions for which no criminal-history points were assigned and
numerous arrests.
Before sentencing, the district court notified Leleaux it
intended to depart upward under Guidelines § 4A1.3(a) because
reliable information suggested he had an under-represented criminal
history and a likelihood of recidivism, due to his having five more
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than the 13 criminal-history points required for Category VI.
Leleaux objected to the court’s intention to depart upward.
In addition, Leleaux objected to his base-offense level,
claiming it should be six, rather than 14, pursuant to Guidelines
§ 2K2.1(b)(2), because the shotgun belonged to his deceased father
and was a family heirloom used only for hunting. He claimed:
approximately two weeks before he pawned the shotgun, he had moved
in with his father shortly before he died and found the shotgun
while cleaning a closet. His stated reasons for pawning it are
discussed infra.
The court denied both objections. Using the next higher
offense level in criminal-history category VI, pursuant to
Guidelines § 4A1.3(a)(4)(B), it sentenced Leleaux to 41-months
imprisonment.
II.
Post-Booker, the district court’s interpretation and
application of the now-advisory Guidelines are reviewed de novo;
its factual determinations for clear error. E.g., United States v.
Charon, 442 F.3d 881, 887 (5th Cir.), cert. denied, 127 S. Ct. 260
(2006). Sentences are reviewed for reasonableness. E.g., United
States v. Scroggins, 485 F.3d 824, 835 (5th Cir. 2007). If within
a properly calculated Guidelines range, a sentence is afforded a
rebuttable presumption of reasonableness, and we will infer the
district judge considered all of the Guidelines factors. Id.
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A.
Guidelines § 2K2.1(b)(2) provides for an offense-level
reduction to six if a 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 district court refused to apply the reduction,
evidently because it believed: the section did not apply simply
because Leleaux’s father, and not Leleaux, used the firearm for
hunting and considered it an heirloom worthy of collection; and
Leleaux’s pawning the firearm belied his claimed interest in
furthering his family’s collection of it.
In claiming the district court erred in declining to apply
this reduction, Leleaux maintains the shotgun was a family heirloom
belonging to his father and was owned for the purpose of hunting.
At sentencing, he claimed he pawned it, and gave the ticket to his
sister, because she was unable to pick up it up from their father’s
house, and he wanted to have it removed for personal safety reasons
while he was grieving. The Government responds that, while
affidavits show Leleaux’s father owned the shotgun for sporting
purposes and it was an heirloom, Leleaux did not establish he
possessed the firearm solely for such reasons.
There is no indication the district court did not accept the
evidence showing Leleaux’s actual possession consisted solely of
his pawning the shotgun, which was an heirloom owned by his father,
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who used it solely for sporting purposes. Accordingly, whether
Leleaux was entitled to the offense-level reduction involves
“application of the facts to the guidelines”, which “is a question
of law subject to de novo review”. United States v. Shell, 972
F.2d 548, 550 (5th Cir. 1992).
“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.” Id. (alteration in original)
(quoting United States v. Keller, 947 F.2d 739, 741 (5th Cir.
1991)). The commentary to § 2K2.1(b)(2) states that whether the
firearm was used for “lawful sporting purposes or collection” is to
be
determined by the surrounding circumstances
... includ[ing] 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.
U.S.S.G. § 2K2.1(b)(2), cmt. n.7 (2005).
Our court has held the availability of the reduction does “not
turn on the axiomatic truism that a felon can never lawfully
possess a firearm” because “[t]he entire reduction provision would
clearly be subsumed in such a proposition”. Shell, 972 F.2d at
552. Instead, and in accordance with the Guideline’s commentary,
“the availability of the reduction turns on the purpose or use for
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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”. Id. (emphasis in original). As discussed,
even if Leleaux possessed the firearm for lawful sporting or
collection purposes, he is not protected from criminal liability
for illegal possession. On the other hand, such circumstances can
be a mitigating factor in determining his sentence under the
advisory Guidelines.
As an initial matter, Leleaux does not contend he used the
firearm for his collecting or sporting purposes; however, the
Guideline does not, on its face, require him to do so. We assume
arguendo he can rely on the shotgun’s being used for sporting and
collection generally. Restated, we assume arguendo Guidelines §
2K2.1(b)(2) requires Leleaux to show, at least, that his act of
possession was solely for the sporting or collection purposes of
some other person. See United States v. Mojica, 214 F.3d 1169,
1172-73 (10th Cir. 2000).
Other circuits’ application of § 2K2.1(b)(2) when, as here,
the defendant did not own the firearm and the only evidence of
actual possession occurred as he was disposing of it, has depended
on the circumstances of the possession, as the Guideline’s
commentary directs. United States v. Caldwell, 431 F.3d 795 (11th
Cir. 2005), cert. denied, 126 S. Ct. 1665 (2006), upheld the
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district court’s rejection of a § 2K2.1(b)(2) reduction where the
defendant pawned his brother’s sporting rifle upon finding it in
their residence. The court noted the district court found
unconvincing the defendant’s asserted belief that he was complying
with the law by pawning the firearm, given that he never gave the
pawn ticket or money to his brother or made other attempts to have
the rifle removed from the house. Id. at 800. In contrast,
Mojica, 214 F.3d 1169, held the § 2K2.1(b)(2) reduction could apply
when the only evidence of the defendant’s possession was his
returning to its owner a shotgun borrowed by a housemate for lawful
sporting purposes.
To determine whether Leleaux demonstrated, by a preponderance
of the evidence, that the reduction should have been given, we
consider the surrounding circumstances. The record indicates
Leleaux possessed only one firearm, of the type ordinarily used for
small game, and no ammunition. There is no allegation that he ever
fired or brandished the weapon. On the other hand, and similar to
the facts in Caldwell, he does not justify his taking the firearm
to a pawn shop rather than to his sister, which, as the district
court noted, is inconsistent with his claimed interest in having it
remain in the family. Moreover, his pawning the firearm was, as
Leleaux admits, intended “to get rid of it”, which is not for use
in sporting or collection. Furthermore, the district court noted
that, although Leleaux’s lengthy criminal record does not include
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gun violence, it does evidence his violent nature, problems
managing his anger, numerous domestic violence incidents, and drug
abuse and alcoholism. In sum, Leleaux does not meet his burden of
showing entitlement to the § 2K2.1(b)(2) offense-level reduction.
B.
Regarding Leleaux’s challenge to the upward departure, such
departures are reviewed for reasonableness, “which requires us to
review ‘the district court’s decision to depart upwardly and the
extent of that departure for abuse of discretion’”. United States
v. Gonzalez, 445 F.3d 815, 817 (5th Cir. 2006) (quoting United
States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005)). The
departure is not an abuse of discretion if the district court’s
reasons for it: advance the objectives set forth in § 3553(a)(2);
and are justified by the facts of the case. United States v.
Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert. denied, 126 S.
Ct. 2954 (2006).
Guidelines § 4A1.3 provides that the departure may be
warranted “[i]f ... the defendant’s criminal history category
substantially under-represents the seriousness of the defendant’s
criminal history or the likelihood that the defendant will commit
other crimes”. When, as here, the departure is from criminal
history category VI, the court is instructed to move incrementally
to the next higher offense level until it finds an appropriate
Guidelines range. U.S.S.G. § 4A1.3(a)(4)(B). In determining
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whether to depart upwardly from Category VI, the Guideline’s
commentary recommends the court consider the nature of the prior
offenses. Id. cmt. n.2(B).
At Leleaux’s lengthy sentencing hearing, the district court
discussed with Leleaux his criminal record. In accordance with §
3553(a)(2)’s factors and § 4A1.3, the court emphasized: the
criminal-history category’s not reflecting Leleaux’s true criminal
propensity; his violent history; the need to provide him with anger
management, drug and alcohol treatment, and mental health care; the
number of convictions for which he received no criminal-history
points; his likelihood of recidivism; and the need to protect the
public by deterring further crimes. See Zuniga-Peralta, 442 F.3d
at 347-48 (upholding 60-month departure under § 4A1.3 where
district court considered defendant’s lengthy criminal history and
gave reasons that advanced the objectives of § 3553(a)(2)).
Accordingly, the district court gave adequate justification for the
upward departure.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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