* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

May 1, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30860

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSEPH E. FAUSPHOUL,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:06-CR-10010-1

--------------------

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
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

-3-

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

-4-

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.