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No. 96-2801

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * Eastern District of Missouri.

Billy Ray Moit, * 

 * [PUBLISHED]

Appellant. *

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 Submitted: October 7, 1996

 Filed: November 14, 1996

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Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.

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PER CURIAM.

Billy Ray Moit challenges the thirteen-month sentence imposed by the

District Court after he pleaded guilty to unlawfully possessing a firearm

in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). We reverse.

In conjunction with an unrelated investigation, and with Moit's

consent, law enforcement officers searched Moit's residence located on

forty acres in rural Missouri. They seized five firearms, including three

shotguns, a .30-06 rifle, and a .22 rifle. The officers also seized

numerous unfired .22 rifle rounds and spent .22 rifle shell casings from

Moit's clothing, his vehicle, and his driveway, and noted the presence of

other ammunition inside the residence.

The PSR assigned a base offense level of 14 under U.S. Sentencing

Guidelines Manual § 2K2.1(a)(6) (1995). Moit objected, contending his base

offense level should have been reduced to 6, under U.S. Sentencing

Guidelines Manual § 2K2.1(b)(2) (1995),
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because he possessed the guns solely for lawful sporting purposes or

collection. Moit asserted that his father--who lived at the residence

before Moit moved in with his wife and child--owned the guns, possessed

them solely for lawful sporting purposes or collection, and had left the

guns at the residence upon moving to a nearby town. Moit admitted he

constructively possessed the guns, but asserted he had not used them. Moit

and his father testified in conformity with these assertions at sentencing.

Moit argued that the evidence established his father possessed the

guns as keepsakes, solely for collection purposes, and that Moit kept the

guns in his house for his father. Moit noted that the age of some of the

weapons indicated that they were antique firearms of the type one would

collect. The government argued that section 2K2.1(b)(2) did not apply

where a defendant kept a gun collection on behalf of another person, and

that the guns were not found in locations consistent with collection

purposes.

The District Court found that "substantial evidence and appropriate

inferences to be derived from the evidence" showed the guns and ammunition

were not used solely for lawful sporting purposes or collection, and that

Moit had thus failed to carry his burden of proof. On appeal, Moit argues

that the District Court clearly erred in finding he did not possess the

guns solely for lawful sporting or collection purposes, noting that no

evidence was presented that he made any other use of the guns or that he

unlawfully discharged the guns.

Moit was entitled to a base offense level of 6 if he proved that he

"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." See U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(2) (1995); United States v. Kissinger, 986 F.2d 1244, 1246 (8th

Cir. 1993) (discussing burden of proof). After reviewing the record as a

whole, we are left with
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a firm and definite conviction that a mistake has been committed and thus

conclude that the District Court clearly erred in its finding as to Moit's

purposes in possessing the guns. See United States v. Smith, 49 F.3d 475,

479 (8th Cir. 1995) (standard of review); Kissinger, 986 F.2d at 1246.

We note that the District Court did not specifically identify either

the "substantial evidence" or the "appropriate inferences" to which it

referred, nor did it make any explicit findings as to the witnesses'

credibility. All of the guns were unloaded, hunting-type firearms, and the

ammunition retrieved by the officers was consistent with the weapons

involved. Although spent .22 casings were also discovered, the .22 rifle--

which was found stored in a cabinet--was inoperable, and Moit testified

that his brother had used another .22 rifle at the property earlier in the

year. Moit denied having shot any of the guns since becoming a convicted

felon, and his criminal history reflected no convictions for offenses

involving firearms. See U.S. Sentencing Guidelines Manual § 2K2.1,

comment. (n.10) (1995) (relevant considerations include number and type of

firearms, amount and type of ammunition, location and circumstances of

possession and actual use, nature of defendant's criminal history, and

extent to which local law restricted possession). We reject the

government's argument that one who possesses a gun collection owned by

another can never receive a section 2K2.1(b)(2) decrease.

Accordingly, the judgment of the District Court is reversed and the

case is remanded for resentencing consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.