United States Court of Appeals, Eleventh Circuit.
No. 96-6179.
UNITED STATES of America, Plaintiff-Appellee,
v.
Ephriam BRISTOW, Defendant-Appellant.
April 18, 1997.
Appeal from the United States District Court for the Middle
District of Alabama. (No. cr-95-191-N), W. Harold Albritton, III,
Judge.
Before BIRCH, Circuit Judge, RONEY, Senior Circuit Judge, and
HANCOCK*, Senior District Judge.
PER CURIAM:
In this appeal, we determine whether possession of a firearm
by a convicted felon solely for delivery as collateral for a loan
can be the basis for a downward departure from the applicable
Sentencing Guidelines range for violating 18 U.S.C. § 922(g)(1).
The district court concluded that it did not have the discretion to
depart downward. We affirm.
I. BACKGROUND
In the summer of 1994, defendant-appellant, Ephriam Bristow,
who lived with his parents in their home, was in debt. He needed
money to pay overdue bills and his child support obligations. On
July 22, 1994, Bristow took his father's unloaded and lawfully
owned Smith and Wesson, Model 13-2, .357 Magnum revolver and pawned
it at Quik Pawn Shop in Montgomery, Alabama. On August 3, 1994, in
an attempt to retrieve the handgun that he had pawned, Bristow
completed a gun registration form and represented that he was not
*
Honorable James H. Hancock, Senior U.S. District Judge for
the Northern District of Alabama, sitting by designation.
prohibited from possessing a firearm under federal law because he
had not been convicted of a felony. Bristow was not permitted to
redeem the revolver because, during the waiting period, it was
discovered that he had pled guilty in Montgomery County Circuit
Court to possession of a controlled substance in 1992, for which he
was sentenced to three years of imprisonment.1 On August 29, 1995,
Bristow was indicted in a two-count indictment. Count I of the
indictment charged him with being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). Count II charged
him with making a false statement in connection with the
acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6).
Bristow pled guilty to Count I; Count II was dismissed by the
government.
At his sentencing hearing on February 8, 1996, Bristow
proffered and the district court accepted the following facts: (1)
Bristow possessed only one firearm, a handgun; (2) the firearm
possessed by Bristow was owned lawfully by his father; (3) Bristow
did not possess any ammunition; (4) Bristow possessed the firearm
for the minimal time that it took for him to carry the weapon from
his family home to a neighborhood pawn shop; (5) when Bristow
pawned the firearm, he gave correct information concerning his
identity, his address, and his telephone number; (6) Bristow did
not use or intend to use the firearm for any unlawful purpose; (7)
Bristow did not possess the weapon for self-defense or
self-protection; and (8) Bristow had never been convicted of an
1
This sentence was suspended, and Bristow was released on
probation for two years.
offense involving firearms. Based on these facts purportedly
comprising innocent possession, Bristow requested a downward
departure under U.S.S.G. § 5K2.0, p.s.2 He argued that the use of
a firearm as collateral for a loan was not considered by the
Sentencing Commission in formulating the Sentencing Guidelines and
that the facts of this case warranted a departure.
Based on U.S.S.G. §§ 2K2.1 and 5K2.0, p.s., the district judge
explained his reasons for concluding that he was precluded from
according Bristow a downward departure:
I have given long and serious thought to this and that is
the reason I wanted to take a recess so I could think about
it, look at it, consider it. I have listened to the argument
of counsel. Having done so, I find that I am not able to
reduce this and depart below the Guidelines.
I find that, first, I would have to say that there exists
mitigating circumstances of the kind and to the degree not
adequately taken into consideration by the Sentencing
Commission in formulating the Guidelines. I don't think that
is the case. I think the Sentencing Commission took into
consideration the idea of innocent possession. I think that
they addressed the issue of innocent possession of a firearm
in adopting the provision in 2K2.1 that provides for a
downward departure in the event that the person possesses a
firearm solely for lawful sporting purposes or collection.
And at one time recreation.
....
2
In relevant part, U.S.S.G. § 5K2.0, p.s., provides:
Under 18 U.S.C. § 3553(b) the sentencing court may
impose a sentence outside the range established by the
applicable guideline, if the court finds "that there
exists an aggravating or mitigating circumstance of a
kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in
formulating the guidelines that should result in a
sentence different from that described."
U.S.S.G. § 5K2.0, p.s. (quoting 18 U.S.C. § 3553(b)); see
U.S.S.G. Ch. 1, Pt.A. (n. 4(b)) (describing how the
sentencing court should conduct the inquiry under 18 U.S.C.
§ 3553(b)).
Therefore, I find that the argument made by the defense,
while certainly a good argument, is not an argument that
allows me to depart from the Guidelines under the rules that
we have.
I can also understand why the Sentencing Commission would
do that. Because to allow the Court to take into
consideration the nature of an innocent use would certainly
make it a fact issue in many, many cases where Congress has
chosen simply to make it a federal criminal offense for a
convicted felon to possess a firearm.
So, as much as ... one may feel sympathetic toward this
defendant under the circumstances, I do not believe that I
have the discretion to depart from the Guidelines. Because I
believe that the nature of the use that exists in this case is
within the type of things that were considered by the
Sentencing Commission in formulating the Guidelines.
For purposes of appeal, I would make it clear that I am
not exercising my discretion not to depart downward with the
idea that I could if I wanted to. I am not departing downward
because I do not feel that I have the discretion to.
....
Having said that, I have given this much consideration
and I think I am correct in this; that it is not the type
thing that this Court has authority to depart downward for.
I will, however, take the arguments made by counsel into
consideration in setting the sentence and will sentence this
defendant to the minimum sentence provided in the Guidelines.
Therefore, I overrule the objection filed by the defense
and also deny the request for a downward departure.
R3-28-30.
Although he did not depart downward, the district judge
sentenced Bristow to the minimum sentence of twelve months and a
day of imprisonment under U.S.S.G. § 2K2.1. 3 On appeal, Bristow
argues that the district court erred in concluding that it had no
authority to depart downward based on the factors involved with his
3
The applicable Sentencing Guidelines range was twelve to
eighteen months based on Bristow's base offense level of 12,
reduced two levels for acceptance of responsibility, and his
criminal history category of II.
possessing the firearm for the sole purpose of using it for
collateral.
II. DISCUSSION
We review departure decisions by district courts for abuse of
discretion. Koon v. United States, --- U.S. ----, ----, 116 S.Ct.
2035, 2046, 135 L.Ed.2d 392 (1996); United States v. Taylor, 88
F.3d 938, 945 (11th Cir.1996). In Koon, the Supreme Court
established the analysis for determining whether to depart from an
applicable Guidelines sentence:
"1) What features of this case, potentially, take it outside
the Guidelines' "heartland' and make of it a special, or
unusual, case?
2) Has the Commission forbidden departures based on those
features?
3) If not, has the Commission encouraged departures based on
those features?
4) If not, has the Commission discouraged departures based on
those features?"
Koon, --- U.S. at ----, 116 S.Ct. at 2045 (quoting United States v.
Rivera, 994 F.2d 942, 949 (1st Cir.1993)).4
4
We realize that Koon was decided on June 13, 1996, and that
Bristow was sentenced on February 8, 1996. "The sentencing court
must employ the guidelines in effect at the time the sentencing
hearing is held." United States v. Camacho, 40 F.3d 349, 354
(11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1810, 131
L.Ed.2d 735 (1995). The United States Sentencing Commission
Guidelines Manual, effective November 1, 1995, is the operative
version for Bristow's sentencing and the one that we use. The
dispositive policy statement in this appeal, U.S.S.G. § 5K2.12,
p.s., became effective on November 1, 1987. Id.; see Williams
v. United States, 503 U.S. 193, 200-01, 112 S.Ct. 1112, 1119, 117
L.Ed.2d 341 (1992) (holding that a Sentencing Guidelines policy
statement is an authoritative interpretive guide to the meaning
of an applicable guideline). We additionally note that the same
version of the United States Sentencing Commission Guidelines
Manual was used by the Supreme Court in Koon and that the
four-part analysis for departure decisions that the Court adopts
therein is from Rivera, a First Circuit case decided on June 4,
Although the facts presented by Bristow at his sentencing to
show that his alleged innocent possession of a handgun as a
convicted felon may constitute superficial arguments for
classifying his case as special or unusual with respect to
heartland cases, clearly the underlying, motivating reason that he
possessed the firearm was for an economic purpose to assist him in
paying his financial obligations.5 Thus, his arguments for
1993. Koon, --- U.S. at ----, 116 S.Ct. at 2045. Therefore,
Koon and its analysis for departure decisions is clarifying
commentary on the Sentencing Guidelines existent at the time of
Bristow's sentencing. See Camacho, 40 F.3d at 354 ("Clarifying
amendments are amendments to the commentary of the sentencing
guidelines, and are considered by this court in interpreting the
guidelines, even when the defendant was sentenced before the
effective date of the amendments.").
5
Confronting the argument that possession of a revolver by a
convicted felon as collateral for a loan constituted aberrant
behavior justifying a downward departure, the Fifth Circuit found
this contention to be unavailing:
Even if [the defendant-appellant] possessed the gun
only as collateral, this suggests a conscious and
deliberate act and not an aberrant or exceptional one.
The Sentencing Commission has explained that
departures are appropriate, "[w]hen a court finds an
atypical case, one to which a particular guideline
linguistically applies but where conduct significantly
differs from the norm...." U.S.S.G. Ch. 1, Pt.
A(4)(b), intro. comment. [The defendant-appellant's]
possession of the firearm is not the type of
exceptional circumstance warranting departure.
United States v. Burleson, 22 F.3d 93, 94 (5th Cir.) (per
curiam), cert. denied, --- U.S. ----, 115 S.Ct. 283, 130
L.Ed.2d 199 (1994). Under a former version of the
Sentencing Guidelines, the Sixth Circuit concluded that
possession of a firearm by a convicted felon as collateral
for payment owed him did not qualify for departure as
"innocent possession" under U.S.S.G. § 2K2.1(b)(2), which
then excepted only sport or recreation possession, evidenced
by the limiting modifier "solely." United States v. Wilson,
878 F.2d 921, 924-95 (6th Cir.1989); accord United States
v. Wyckoff, 918 F.2d 925, 928 (11th Cir.1990) (per curiam).
All of these cases, however, are pre-Koon analyses.
downward departure fail under the second consideration of the Koon
analysis because "[t]he Commission considered the relevance of
economic hardship and determined that personal financial
difficulties and economic pressures upon a trade or business do not
6
warrant a decrease in sentence." U.S.S.G. § 5K2.12, p.s.; see 18
We also distinguish this case from the cases in our
circuit involving violation of the National Firearms Act, 26
U.S.C. § 5861(d), for possession of unregistered, sawed-off
shotguns, an offense separate from possession of any firearm
by a convicted felon in violation of 18 U.S.C. § 922(g)(1),
implicated in this case. See United States v. Godfrey, 22
F.3d 1048 (11th Cir.1994); United States v. Hadaway, 998
F.2d 917 (11th Cir.1993). In the former cases, the object
of the possession, the unregistered, sawed-off shotgun,
causes the possession to be unlawful. In this case, the
classification of the possessor as a convicted felon causes
the possession to be unlawful.
Section 922(g) targets a specific class of
individuals—convicted felons. It provides that they
shall not possess any firearm, regardless of the status
of the firearm.
....
Congress promulgated 18 U.S.C. § 922(g) on the
premise that convicted felons have a greater propensity
to commit crimes using firearms. It therefore
categorically sought to remove firearms from their
hands.
United States v. Mobley, 956 F.2d 450, 454 (3d Cir.1992);
see also United States v. Elder, 16 F.3d 733, 738 (7th
Cir.1994) ("We have found no case that has allowed a
defendant ... to claim as a defense that he, as a convicted
felon, took possession of an illegal weapon for the innocent
purpose of turning it over to the proper authorities.").
Significantly, Bristow has never contended that he did not
violate 18 U.S.C. § 922(g)(1) in possessing a firearm as a
convicted felon. Furthermore, he purposely lied when he
represented on the registration form that he had not been
convicted of a crime that would preclude him from obtaining
a firearm.
6
The Supreme Court has explained the relation between
guidelines and policy statements:
Construing the plain language of the Guidelines Manual
U.S.C. § 3553(a)(5) (requiring the district court when determining
a particular sentence to consider "any pertinent policy statement
issued by the Sentencing Commission ... that is in effect on the
date the defendant is sentenced" (emphasis added)). "If the
special factor is a forbidden factor, the sentencing court cannot
use it as a basis for departure." Koon, --- U.S. at ----, 116
S.Ct. at 2045; Taylor, 88 F.3d at 945. The district judge
correctly determined that he was without discretion to grant
Bristow a downward departure, although he did not base his decision
on section 5K2.12, p.s., where the Sentencing Commission
specifically states that "economic hardship" and "personal
7
financial difficulties" do not warrant a downward departure.
..., we conclude that it is an incorrect application of
the Guidelines for a district court to depart from the
applicable sentencing range based on a factor that the
Commission has already fully considered in establishing
the guideline range or, as in this case, on a factor
that the Commission has expressly rejected as an
appropriate ground for departure.
....
[T]o say that guidelines are distinct from policy
statements is not to say that their meaning is
unaffected by policy statements. Where, as here, a
policy statement prohibits a district court from taking
a specified action, the statement is an authoritative
guide to the meaning of the applicable Guideline. An
error in interpreting such a policy statement could
lead to an incorrect determination that a departure was
appropriate.
Williams, 503 U.S. at 200-01, 112 S.Ct. at 1119 (emphasis
added).
7
Although Bristow and the government presented arguments on
the issue of whether any innocent possession of a firearm by a
convicted felon, other than for collection or sporting purposes,
can ever provide the basis for a downward departure, the district
court did not reach that issue.
U.S.S.G. § 5K2.12, p.s. When a convicted felon, who is in debt
with overdue bills and child support obligations, uses a relative's
firearm as collateral for a loan, that firearm possession is
related directly to "personal financial difficulties" and clearly
is based on the type of "economic" motivation addressed in section
5K2.12, p.s. Id. Therefore, departure was precluded under the
Sentencing Guidelines and the Koon analysis.
III. CONCLUSION
On appeal, Bristow argues that the district judge should have
accorded him a downward departure in his sentence for possessing a
firearm as a convicted felon because he contends that his
possession was innocent, since he pawned the revolver as collateral
so that he could pay his debts. As we have explained, the district
judge lacked authority to depart downward because the Sentencing
Guidelines specifically forbid a downward departure for economic
reasons. Accordingly, Bristow's sentence is AFFIRMED.