United States v. Mojica

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 30 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4131

EFREN RIOS MOJICA,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 98-CR-596-W)

Submitted on the briefs:

Paul M. Warner, United States Attorney, and Barbara Bearnson, Assistant
United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.

Robert L. Booker and Edward W. McBride, Jr., of Booker & Associates,
Salt Lake City, Utah, for Defendant-Appellant.

Before KELLY , McKAY , and HENRY , Circuit Judges.

McKAY , Circuit Judge.
 Efren Rios Mojica appeals from a twenty-seven month sentence imposed

for violation of 18 U.S.C. § 922(g)(9). He contends that the court erred in

holding as a matter of law that § 2K2.1(b)(2) of the United States Sentencing

Guidelines Manual [hereinafter “U.S.S.G.”] does not apply to his crime. Our

jurisdiction arises under 28 U.S.C. § 1291, and we reverse. 1

BACKGROUND

Although the government contested Mr. Mojica’s version of the

circumstances surrounding his conviction, the district court assumed the facts

submitted by Mr. Mojica to be true in arriving at its challenged legal conclusion.

See R. Vol. II (Tr. of June 21, 1999 sentencing hr’g at 4-6, 15 [hereinafter

“Tr.”]). Therefore, the underlying factual predicates for Mr. Mojica’s sentence

are undisputed for purposes of our review. Mr. Mojica was convicted of several

crimes associated with a domestic violence charge in the Utah state courts in

February 1998. After those convictions, he lived with Robert and Naomi Rios,

his brother and niece. In October 1998, Mr. Rios brought home a shotgun he had

borrowed to go turkey hunting. On November 1, 1998, Mr. Mojica had an

argument with Ms. Rios. In anger, she threatened to turn him in to the police for

1
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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
ordered submitted without oral argument.

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violation of probation in the domestic violence case because the shotgun was in

the house. Mr. Rios was not at home, so Mr. Mojica decided to immediately

return the gun to its owner, whom he knew. The police arrested Mr. Mojica in the

parking lot of his apartment complex while he was carrying the unloaded shotgun

and fifteen rounds of ammunition in the carrying case.

APPLICABLE LAW

In September 1996, § 922(g) was amended to make individuals who

had committed certain misdemeanor crimes of domestic violence subject to the

restrictions on possession of firearms provided in the Gun Control Act of 1968.

See Omnibus Appropriations Act, Pub. L. No. 104-208, 1996 U.S.S.C.A.N.

(110 Stat.) 3009-371 to 3009-372. Mr. Mojica pleaded guilty to possession of

a firearm by a restricted person under § 922(g)(9). The applicable Sentencing

Guidelines were amended effective November 1, 1998, to include this new class

of prohibited persons. See U.S.S.G. Supp. to App. C, Amend. 578; U.S.S.G.

§ 2K2.1, comment. (n.6) (defining “prohibited person” as including those

defendants convicted in any court of a misdemeanor domestic violence crime).

Mr. Mojica was sentenced at base offense level 12 pursuant to a two-point

reduction for acceptance of responsibility. See U.S.S.G. § 2K2.1(a)(6) (providing

for application of base level offense 14 for defendant who is a “prohibited

person”). The court denied Mr. Mojica’s request to apply § 2K2.1(b)(2), which

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provides for a reduction to base offense level 6 in those situations in which the

crime of possession is associated solely with lawful sporting or collection

purposes. We review the district court’s interpretation and application of the

Sentencing Guidelines de novo . See United States v. Henry , 164 F.3d 1304, 1310

(10th Cir.), cert. denied , 119 S. Ct. 2381 (1999).

DISCUSSION

Section 2K2.1(b)(2) provides:

If the 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,
decrease the offense level determined above to level 6.

Mr. Mojica argued unsuccessfully that he was entitled to a reduction in base

offense level because the shotgun was obtained solely for lawful hunting purposes

and he had not used the shotgun in any other manner or for any other purpose.

The district court noted that there was no claim “that the defendant personally and

independent of his brother had any interest in using the gun for sporting purposes,

[and] that the sole intent of the defendant in returning the gun was simply to

transport the gun out of the house and over to [its owner] . . . because of the

threats of his niece . . . .” Tr. at 6. Because Mr. Mojica “personally was not

going to use the gun either for sporting or collection purposes,” the court

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determined as a matter of law that Mr. Mojica was not entitled to the reduction in

sentence provided by § 2K2.1(b)(2). Id. at 7.

The district court thus limited application of the statutory reduction to those

situations in which the defendant possesses the firearm only for his own lawful

sporting or collection purposes by inserting “defendant’s” before “lawful sporting

or collection purposes” in the guideline. The narrow question before this court

is whether, under the facts that: (1) Mr. Mojica’s constructive possession began

with his brother obtaining and using the shotgun for lawful sporting purposes;

(2) Mr. Mojica never used or intended to use the shotgun for any purpose; and

(3) Mr. Mojica’s only actual possession of the firearm was in attempting to take

it back to its owner, may the court review the totality of the circumstances in

determining whether to apply § 2K2.1(b)(2), or is the court barred from applying

§ 2K2.1(b)(2) by the sole fact that Mr. Mojica never intended to use the shotgun

for sporting purposes.

The guidelines, as criminal statutes, are “given their fair meaning in accord

with the manifest intent of the lawmakers,” United States v. Moore , 423 U.S.

122, 145 (1975) (quotation omitted), without adding or subtracting words from

the statutory language, see 62 Cases, More or Less, Each Containing Six Jars of

Jam v. United States , 340 U.S. 593, 596 (1951). We first observe that the

language of § 2K2.1(b)(2) does not expressly limit reduction of a defendant’s

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base level offense to those situations in which possession or transport is related

only to the defendant’s own lawful sporting purposes. Therefore, we endeavor to

determine the Sentencing Commission’s manifest intent in promulgating the

guideline.

The intent of the Sentencing Commission is demonstrated in part through

its commentary. District courts are obliged to follow the explanatory application

notes unless they are plainly erroneous, inconsistent with the guidelines, or

violative of the Constitution or a federal statute. See Stinson v. United States ,

508 U.S. 36, 42-43 (1993). The relevant application note provides that

“lawful sporting purposes or collection” [are] determined by the
surrounding circumstances. . . . Relevant surrounding circumstances
include 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 . . . and the extent
to which possession was restricted by local law.

U.S.S.G. § 2K2.1, comment. (n.10). Although this note does not clarify whose

sporting purpose is relevant to the inquiry, it also does not expressly require that

the defendant have transported or possessed the firearm for his own sporting

purposes. It also does not limit “[r]elevant surrounding circumstances” to only

those facts involving the defendant. Instead, the application note requires the

court to examine the totality of the surrounding circumstances, including the

specific circumstances of possession and actual use, rather than relying on

a single factor to preclude application of the guideline.

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 The purpose of the “specific offense characteristics” guidelines in

§ 2K2.1(b) is to make punishment proportional to the specific illegal conduct of

a particular defendant, i.e. to punish more benign behavior less drastically on the

basis of the defendant’s “real offense elements” or actual conduct as opposed to

only the “charged offense elements.” See U.S.S.G. Ch. 1, Pt. A (introduction and

general application principles). The background notes contained in earlier

versions of this particular guideline explained that, before the guidelines were

codified, sentencing variations for gun possession crimes were attributable to the

wide variety of circumstances under which the offenses occurred, and that,

“[a]part from the nature of the defendant’s criminal history, his actual or intended

use of the firearm was probably the most important factor in determining the

sentence.” U.S.S.G. § 2K2.1, comment. (backg’d) (1990). As the Eleventh

Circuit has noted, “[t]his background note shows that the Sentencing Commission

recognized that there are a wide variety of circumstances under which the instant

offense may occur and considered the mitigating circumstances of intended

lawful use in formulating the Guidelines.” United States v. Godfrey , 22 F.3d

1048, 1055 n.8 (11th Cir. 1994).

In providing for adjustments based on the specific offense characteristics,

the Commission acted consistently with the principle that “[i]t has been uniform

and constant in the federal judicial tradition for the sentencing judge to consider

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every convicted person as an individual and every case as a unique study in the

human failings that sometimes mitigate, sometimes magnify, the crime and

punishment to ensue.” Koon v. United States , 518 U.S. 81, 113 (1996). Thus,

“the relevant guideline clearly intended to punish innocent possession and use of

a firearm less severely, and improper use more severely.” United States v. Jones ,

158 F.3d 492, 501 (10th Cir. 1998). We do not translate this broad purpose to

mean, however, that § 2K2.1(b)(2) is a “catchall” guideline applicable to all

innocent purposes for possessing a firearm. Clearly, in order to fall within the

scope of the guideline, the defendant’s possession must be related to or

associated with “lawful sporting purposes or collection.”

Under the facts assumed by the district court, Mr. Mojica established that

the shotgun was obtained and used solely for lawful sporting purposes by his

brother but that he obviously had access to the shotgun. See United States v.

Adkins , 196 F.3d 1112, 1117-18 (10th Cir. 1999) (stating that convictions under

§922(g) may be for either actual or constructive possession of a firearm and that

constructive possession exists when the defendant knowingly has control over an

object and the premises where the object is found), cert. denied , 120 S. Ct. 1446

(2000). His acquisition of the shotgun through constructive possession,

therefore, was solely for lawful sporting purposes. He established that he did not

use the unloaded and cased shotgun in a manner inconsistent with those lawful

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sporting purposes during his limited actual possession. He thus showed that his

continued possession while transporting the shotgun from his brother’s house to

the owner’s house was “solely for lawful sporting purposes” of others. Under

these assumed facts, Mr. Mojica’s possession of the firearm constituted a benign

act associated with a lawful sporting purpose meriting consideration of

application of

§ 2K2.1(b)(2).

Our holding is consistent with United States v. Moit , 100 F.3d 605 (8th Cir.

1996), which the district court rejected. In Moit the Eighth Circuit held that a

defendant convicted under § 922 who kept his father’s gun collection at the

defendant’s house should have received the § 2K2.1(b)(2) reduction even though

he was not the collector and the guns were not found in locations consistent with

collection purposes. See id. at 605-06. It expressly rejected the government’s

argument that “one who possesses a gun collection owned by another can never

receive a section 2K2.1(b)(2) decrease.” Id. at 606. In opining that the Moit

opinion was erroneous, the district court stated that the sporting purpose of one

person could not transfer to a prohibited person and thus “insulate” the prohibited

person from guilt. The district court reasoned that § 2K2.1(b)(2) “is an absolute

provision that if you have been convicted of these crimes, you can’t possess that

gun for any reason except . . . sporting and collection purposes . . . .” Tr. at 8-9.

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 In so concluding, we believe the court may have confused consideration of

surrounding circumstances related to lawful sporting purposes as a defense to

conviction under § 922(g)(9), which is not permitted, and consideration of those

surrounding circumstances as mitigating factors in determining the appropriate

sentence, which is mandated. Under the application notes, the facts of actual

ownership, possession and use solely for lawful sporting purposes, and the

purpose of Mr. Mojica’s limited possession and intent behind transporting the

shotgun are all proper considerations of “relevant surrounding circumstances.”

U.S.S.G. § 2K2.1, comment. (n.10); cf. United States v. Prator , 939 F.2d 844, 846

(9th Cir. 1991) (holding, under prior version of § 2K2.1(b)(2), that intended

lawful use is a mitigating factor under this section even if it is irrelevant to the

illegal possession itself) . Thus, the fact that Mr. Mojica transported a shotgun

lawfully used by his brother and its owner solely for sporting purposes did not

“insulate” him from criminal liability for illegal possession, but we hold that it is

a mitigating factor in determining a fair and proper sentence under the appropriate

sentencing guidelines. 2

2
The government cites two Tenth Circuit unpublished orders and judgments
that it argues are similar to the case at bar and in which it argues we “strictly
construed” § 2K2.1(b)(2) to limit its application. Both cases are distinguishable.
In United States v. Tregeagle , No. 91-4080, 1992 WL 33253 (10th Cir. Feb. 18,
1992), the defendant presented no facts showing that the handgun he illegally
possessed and pawned was ever acquired or possessed by anyone for lawful
(continued...)

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 The district court’s reading of the guideline preliminarily requires proof

that any possession--constructive or actual--is for a defendant’s own sporting or

collection purposes in order to fall within the ambit of the guideline. Even if we

concluded that this interpretation was a reasonable one, we conclude that it is also

reasonable to interpret this guideline as allowing for a reduction in base level

offense for the benign possession of a firearm used solely for another’s sporting

or collection purposes . Thus, we are at least faced with a facially ambiguous

guideline. See United States v. Wilson , 10 F.3d 734, 736 (10th Cir. 1993)

(stating that rule of lenity is applicable when, in interpreting a facially ambiguous

2
(...continued)
sporting or collection purposes, which is a core requirement under the guideline.
We refused to apply the rule of lenity to make the guideline applicable to all
innocent uses of a handgun because the language limiting its application to
“lawful sporting or collection purposes” is not ambiguous. See id. at **1. We
stated that the defendant’s unique circumstances could have been dealt with
instead by a downward departure. See id. at **2. In United States v. Austin ,
No. 90-2098, 1991 WL 172653 (10th Cir. Sept. 4, 1991), even though the
defendant argued that he was simply transporting a sawed-off shotgun and five
other firearms to his brother for his brother’s collection, the district court held
that it did not make any difference whether the sawed-off shotgun belonged to the
brother or to defendant because the court did not believe defendant’s claim that
the shotgun was intended for use as a sporting weapon or any other legitimate use
as collection. See id. at **2. We upheld the court’s factual finding that
defendant’s possession of the shotgun was not associated with a sporting or
collection purpose as not clearly erroneous. See id. Contrary to the government’s
argument, we made no comment limiting application of the guideline under the
circumstances. Austin exemplifies proper consideration of the totality of the
circumstances when determining whether to apply § 2K2.1(b)(2) in situations in
which the defendant is not the sports enthusiast or collector.

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statute, “after reviewing all available relevant materials, the court is still left with

an ambiguous statute”). The ambiguity is “grievous” because refusing to consider

the guideline as a result of a narrow interpretation results in a significantly higher

base level offense and corresponding sentence and does not address those cases in

which a prohibited person is convicted of only constructive possession of a

firearm. See United States v. Onheiber , 173 F.3d 1254, 1256 (10th Cir. 1999)

(stating that “[t] he rule of lenity . . . applies only in cases where there is a

grievous ambiguity or uncertainty in the language and structure of a provision” )

(quotations omitted); see also United States v. Diaz , 989 F.2d 391, 393 (10th Cir.

1993) (finding ambiguity because sentencing court could take one of two

approaches to calculate sentence and holding that rule of lenity applies to

sentencing guidelines). We conclude that the rule of lenity requires consideration

of the guideline in situations in which the defendant is not the sports enthusiast or

collector but his possession is solely associated with or related to lawful sporting

or collection purposes (i.e., he or she has not used the firearm in a manner

inconsistent with those lawful purposes), such as in transporting or holding the

firearm for another’s lawful sporting or collection purpose. See United States v.

Martinez , 946 F.2d 100, 102 (9th Cir. 1991) (rule of lenity in criminal context

requires court to infer rationale most favorable to defendant and construe

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guidelines accordingly); United States v. Blackburn , 940 F.2d 107, 109 (4th Cir.

1991) (accord).

Because the government contested Mr. Mojica’s version of the surrounding

circumstances relevant to lawful sporting purposes, we must remand to the district

court for a hearing in which both the government and Mr. Mojica may present

sworn testimony. The court then must make findings and conclude whether

those findings support application of § 2K2.1(b)(2). If § 2K2.1(b)(2) applies,

Mr. Mojica’s base level offense is 6 and should be further reduced by the

two-point reduction the court has already granted for acceptance of responsibility.

See Tr. at 4. At criminal history category V, the guideline range is four to ten

months, but because the range falls within Zone B, the maximum term of

imprisonment would be no more than six months. See U.S.S.G. Sentencing Table;

U.S.S.G. § 5B1.1, comment. (n.1(b)). Mr. Mojica has apparently been in custody

since his arrest in November 1998. See Tr. at 3. Because Mr. Mojica will have

already served the maximum sentence if he is entitled to application of

§ 2K2.1(b)(2), the district court must expedite his resentencing proceedings.

The sentence of the United States District Court for the District of Utah is

VACATED and the case is REMANDED for further proceedings consistent with

this opinion.

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