*

 This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the

citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

**After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument.

UNITED STATES COURT OF APPEALS

Filed 6/6/96

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LOUISE HARRINGTON,

Defendant-Appellant.

No. 95-3388

(D.C. No. 94-20091-01)

(D. Kan.)

ORDER AND JUDGMENT*

Before BRORBY, EBEL, and HENRY, Circuit Judges.**

Appellant Louise Harrington pled guilty in federal district court to one count of

making a false statement in connection with the acquisition or attempted acquisition of a

firearm, in violation of 18 U.S.C. § 922(a)(6). Harrington was sentenced to 46 months

imprisonment. Harrington timely filed this appeal, challenging the district court’s
1

 The government further stated that Harrington’s probation was later revoked and

she was sentenced to five years imprisonment.

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calculation of her sentence under the Sentencing Guidelines. We have jurisdiction under

28 U.S.C. § 1291 and AFFIRM.

On July 6, 1995, Harrington presented to the district court a Petition to Enter a Plea

of Guilty to the Information charging the section 922(a)(6) violation. In her Petition,

Harrington stated: “On November 23, 1993 I made a false statement in connection with

pawning a 25 calibre pistol. I completed the firearms transaction record and falsely

answered that I did not have a felony conviction. I was convicted of a felony in Missouri

in 1989.” R.O.A., Vol. I, doc. 20, at 1. At the plea hearing held that day, the government

detailed the evidence supporting the information. It stated that the evidence would show

that in 1989 Harrington had been convicted in Missouri of assault, and had been

sentenced to a suspended sentence of five years in prison.1

 The evidence would further

show that on November 23, 1993, Harrington “redeemed, that is, recovered” a .25 caliber

pistol that she had previously pawned there, and that while redeeming the firearm she had

indicated on the required form that she did not have a prior felony. Finally, the evidence

would show that Harrington, after receiving Miranda warnings, had admitted to a federal

agent that she had redeemed the pistol, and acknowledged the form that she had filled out. 

(R.O.A., Supp. Vol. IV, doc. 38, at 18-19). Harrington did not object to this

characterization of the evidence. (Id. at 20).
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The district court accepted Harrington’s plea, and ordered a presentence report. 

The presentence report applied U.S.S.G. § 2K2.1(a)(4)(A) to calculate a Base Offense

Level of 20, with a three-level reduction for acceptance of responsibility. (R.O.A., Vol.

II, at 5). Based on a total offense level of 17 and a criminal history category of V, the

recommended guideline range was 46 to 57 months imprisonment. (Id. at 15). 

Harrington objected, among other things, to the use of § 2K2.1(a)(4)(A), arguing that her

offense conduct was instead governed by § 2K2.1(a)(7). (Id. at 17). Section (a)(7)

provides a Base Offense Level of only 12. The district court heard argument, and

determined that both sections were equally applicable. (R.O.A., Supp. Vol. III, doc. 37,

at 15). Noting that § 2K2.1(a) directs the court to apply the greatest relevant base offense

level, the court applied § 2K2.1(a)(4)(A) and sentenced Harrington accordingly. (Id. at

15, 22). Harrington appeals that determination.

 The Base Offense Level for violations of 18 U.S.C. § 922(a)-(p) is determined

by reference to guideline 2K2.1, titled “Unlawful Receipt, Possession, or Transportation

of Firearms or Ammunition; Prohibited Transactions Involving Firearms or

Ammunition.” The Guideline lists eight categories of base offense levels. Section

(a)(4)(A) provides for a base offense level of 20 if the defendant “had one prior felony

conviction of either a crime of violence or a controlled substance offense.” Section (a)(7)

is a catch-all which provides for a base offense level of 12 when subsections (1) through

(6) are inapplicable, and “except as provided below.” “Below” refers to Section (a)(8),
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which provides a base offense level of 6 “if the defendant is convicted under 18 U.S.C. §

922(c), (e), (f), or (m).”

Harrington argues, and argued before the district court, that the Guideline

distinguishes offenses involving unlawful receipt and possession of a firearm from

offenses consisting merely of prohibited transactions involving firearms. Sections (a)(1)

through (a)(6), she asserts, are meant to apply only to offenses involving the unlawful

possession or receipt of a firearm. She argues that where the offense is merely a

prohibited transaction involving a firearm, only sections (a)(7) or (a)(8) are applicable. 

Since she pled guilty of a prohibited transaction and not of possession, she concludes that

subsection (a)(4)(A) cannot apply, and her conduct is governed by section (a)(7). 

We find no basis for such a distinction. At the sentencing hearing, Harrington

explained that “originally when the guidelines came out in ‘87, ‘88 and ‘89, there were

different guideline sections covering possessory offenses and transaction offenses. 2K2.2

and 2.3 I believe were deleted in 1991, and those sections combined into 2K2.1 as it

currently stands, which consolidates the possession offenses with the transaction

offenses.” R.O.A., Supp. Vol. III, Doc. 37, at 6. At least one court has, without

difficulty, applied sections (a)(1) through (a)(6) of Guideline 2K2.1 for § 922(a)(6)

offenses. See United States v. Hill, 59 F.3d 500, 501 n.1 (4th Cir. 1995)(base offense

level for defendant convicted of violating § 922(a)(6) was provided by U.S.S.G.

§ 2K2.1(a)(6)).
- 5 -

Even assuming, however, that a defendant’s possession of the firearm is required

for U.S.S.G. § 2K2.1(a)(6) to apply, we agree with the government that Harrington

possessed the firearm. At sentencing, Harrington argued that she “never actually had

physical custody in her hand, actual possession” of the pistol. (R.O.A., Supp. Vol. III, at

12). Immediately after she retrieved the pistol from the broker, she asserted, another

individual took possession of the weapon and carried it from the pawnshop. (Id. at 12-13). 

 However, her admission at sentencing that she retrieved the firearm, together with her

failure at the plea hearing to object to the government’s assertion that she “redeemed” and

“recovered” it, establish possession. Indeed, § 922(g), the statute that criminalizes

possession of a firearm by a felon, provides that it is unlawful for such an individual “to

receive” any firearm that has been transported in interstate commerce. When the firearm

was returned to Harrington, she assumed possession of it; her choice to transfer the

firearm to another individual would not alter this fact. 

We AFFIRM the district court’s determination of sentence. 

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge