*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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60550

Summary Calendar

BRANDON KUHN, doing business as Crystal Caverns

Petitioner 

v.

BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES

(ATF)

Respondent

On Petition for Review from 

an Order of the Department of Justice

Agency No. 5-TX-091-33-PA-01118

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

Brandon Kuhn (“Kuhn”) petitions this court for a review of the Respondent

Bureau of Alcohol, Tobacco, Firearms, and Explosives’s (“ATF”) denial of his

application for a permit to import, manufacture, or deal in explosive materials.

See 18 U.S.C. § 842. Kuhn appealed the ATF’s decision pursuant to 18 U.S.C.

§ 843(e)(2). At the first level of review, an Administrative Law Judge conducted

a hearing and recommended denying Kuhn’s application. The Director of

Industry Operations of the ATF, representing the Attorney General, sustained

United States Court of Appeals

Fifth Circuit

F I L E D

December 2, 2008

Charles R. Fulbruge III

Clerk
1 Kuhn has moved to strike portions of the administrative record because he alleges

those portions are either incorrect or prejudicialto his case. Pursuant to § 706, we must review

the entire administrative record or those parts of it cited by the parties with due account taken

of the rule of prejudicial error. Kuhn does not cite to any authority that permits this reviewing

court to strike portions of the record based solely on one party’s wishes and conclusory

allegations of prejudice. Even assuming arguendo that we strike the portions that Kuhn

requests, any change to the administrative record does not affect our decision. We therefore

deny Kuhn’s motion to strike. 

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the denial in a written decision. Kuhn now petitions this court for review. 

We review the denial of an explosives permit pursuant to the

Administrative Procedure Act (“APA”), codified at 5 U.S.C. §§ 701-706. See 18

U.S.C. § 843(e)(2). Pursuant to 5 U.S.C. § 706(2)(A) & (C), we “hold unlawful

and set aside agency action, findings, and conclusions found to be” “arbitrary,

capricious, an abuse of discretion, or otherwise notin accordance with law” or “in

excess of statutory jurisdiction, authority, or limitations, or short of statutory

right.” As the reviewing court, “the court shall review the whole record or those

parts of it cited by a party, and due account shall be taken of the rule of

prejudicial error.” 5 U.S.C. § 706.1“To the extent that this appeal challenges

the Director's interpretation of the statutory provisions ATF administers, we

utilize principles of Chevron deference.” Vineland Fireworks Co., Inc. v. Bureau

of Alcohol, Tobacco, Firearms & Explosives, --- F.3d ----, 2008 WL 4530536, at *4

(3d Cir. Oct. 10, 2008) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984)).

Pursuant to 18 U.S.C. § 842(i)(1), ATF denied Kuhn an explosives permit

because “[i]t shall be unlawful for any person . . . who is under indictment for,

or who has been convicted in any court of, a crime punishable by imprisonment

for a term exceeding one year” to “to ship or transport any explosive in or

affecting interstate or foreign commerce or to receive or possess any explosive

which has been shipped or transported in or affecting interstate or foreign
2 This holding remains good law even though other aspects of Dickerson have been

effectively superseded by statute. See Caron v. United States, 524 U.S. 308, 313 (1998); United

States v. Daugherty, 264 F.3d 513, 516 & n.7 (5th Cir. 2001); United States v. Cisneros, 112

F.3d 1272, 1281 (5th Cir. 1997). 

3

commerce.” Kuhn argues that the application of this provision to deny his

application is in error. Kuhn concedes he was previously convicted of one

violation of 18 U.S.C. § 472 (“Uttering counterfeit obligations or securities”),

which is an offense that has a statutory maximum penalty of 20 years

imprisonment. However, Kuhn contends that because the Sentencing

Guidelines were mandatory at the time of his conviction, the term of his actual

sentence controls whether he committed a crime punishable for a term exceeding

one year. According to Kuhn, because his guidelines sentence was between zero

to six months imprisonment, his convicted offense was not a crime punishable

by imprisonment for a term exceeding one year and therefore § 841(i)(1) should

not bar him from obtaining an explosives permit. 

His argument is without merit. The statute’s plain language indicates

that the application of § 841(i)(1) turns on the term of imprisonment punishable

by the offense of conviction and indictment and does not turn on the petitioner’s

actual sentence. In interpreting another statute with identical language, the

Supreme Court has noted that “[i]t was plainly irrelevant to Congress whether

the individual in question actually receives a prison term; the statute imposes

disabilities on one convicted of ‘a crime punishable by imprisonment for a term

exceeding one year.’” Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 113

(1983) (interpreting 18 U.S.C. § 922(g)).2In other words, the petitioner’s actual

sentence is irrelevant to the statute’s application. Since the offense of

petitioner’s valid conviction is punishable by imprisonment exceeding one year,

the ATF acted in accordance with law and was not arbitrary nor capricious in
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denying his permit application. 

For the foregoing reasons, the petition for review is

DENIED.