UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4279

WILLIAM DARRELL STUMP, II,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4283

WILLIAM DARRELL STUMP, II,

Defendant-Appellant.

Appeals from the United States District Court

for the Western District of Virginia, at Roanoke.

Jackson L. Kiser, Chief District Judge.

(CR-94-109-R)

Submitted: December 10, 1996

Decided: January 21, 1997

Before HALL, WILKINS, and LUTTIG, Circuit Judges.

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No. 96-4279 affirmed and No. 96-4283 vacated and remanded by

unpublished per curiam opinion.

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COUNSEL

William Darrell Stump, II, Appellant Pro Se. Donald Ray Wolthuis,

OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

William Darrell Stump, II, admitted at trial that he fired rifles

equipped with homemade silencers on property owned by his father

in May 1994. Stump was convicted by a jury of two counts of possessing illegal silencers, 26 U.S.C. § 5861(d), (i) (1994). The imprisonment range under the Sentencing Guidelines* was calculated to be

twenty-seven to thirty-three months. The district court sentenced

Stump to two months imprisonment. Stump filed a timely appeal

challenging the constitutionality of his convictions (No. 96-4279), and

the Government filed a timely cross-appeal challenging the district

court's downward departure from the Sentencing Guidelines (No. 96-

4283).

Stump argues that his convictions were unconstitutional because

the Constitution does not provide for the existence of federal courts

(other than the Supreme Court) or federal law enforcement agencies.

This argument is without merit, and Stump's convictions are hereby

affirmed.

We find, however, that the district court erred in departing downward from the Sentencing Guidelines. The district court based its rul-

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*United States Sentencing Commission, Guidelines Manual (Nov. 1,

1995).

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ing on evidence which showed that Stump fired the silenced rifles for

a sporting purpose (i.e., target practice) and only"possessed" the

silencers for a brief amount of time. The district court ruled that the

Sentencing Commission could not have foreseen such a"bare-boned"

violation of the law. We disagree.

A trial judge's decision to depart from the Sentencing Guidelines

in an atypical case is reviewed for an abuse of discretion. Koon v.

United States, ___ U.S. ___, 64 U.S.L.W. 4512 (U.S. June 13, 1996)

(Nos. 94-1664, 94-8842); United States v. Rybicki, ___ F.3d ___,

1996 WL 544463 (4th Cir. Sept. 26, 1996) (Nos. 94-5360, 94-5362).

Applying the standards set forth in Koon and Rybicki, we hold that the

district court abused its discretion in departing downward from the

Sentencing Guidelines. Specifically, we hold that the district court's

finding that Stump possessed the silencers for a sporting purpose to

be a "forbidden" factor under the Sentencing Guidelines. We further

hold that the plain language of the Sentencing Guidelines and the

applicable statutes contradict the district court's imposition of a time

element on the possession of illegal silencers. We believe that Congress intended to prohibit the possession of illegal firearms (including

silencers) without regard to the amount of time they were in the

defendant's possession. See United States v. Ranney, 524 F.2d 830,

833 (7th Cir. 1975), cert. denied, 424 U.S. 922 (1976) (expressly

rejecting the notion that § 5861(i) allows for the possession of illegal

firearms for a "reasonable period").

Accordingly, we affirm Stump's convictions (No. 96-4279), but we

vacate the sentence and remand the case for a new sentencing hearing

in accordance with the Sentencing Guidelines (No. 96-4283). Stump's

motion for oral argument is denied. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

material before the court and argument would not aid the decisional

process.

No. 96-4279 - AFFIRMED

No. 96-4283 - VACATED AND REMANDED

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