The HONORABLE DAVID R. HANSEN, then United States District 1

Judge for the Northern District of Iowa, now a United States

Circuit Judge.

___________

No. 95-3543

___________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Rick Waggoner, *

*

Defendant-Appellant. *

___________

 Submitted: September 10, 1996

 Filed: January 10, 1997

___________

Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.

___________

LOKEN, Circuit Judge.

Rick Waggoner went pheasant hunting in the fall of 1990, violating

a special condition of his probation and the federal statute barring felons

from possessing firearms, 18 U.S.C. § 922. When this and other probation

violations came to light in 1992, the district court revoked probation,

1

and Waggoner served the remaining six months of his original sentence. 

In 1995, Waggoner pleaded guilty to a § 922 violation for the conduct

that led to his probation revocation. This appeal raises a sentencing

issue -- whether Waggoner's base offense level for the § 922 violation

should be reduced from twelve to six because he
 The HONORABLE MARK W. BENNETT, United States District Judge 2

for the Northern District of Iowa.

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"possessed the firearm . . . solely for lawful sporting purposes," U.S.S.G.

§ 2K2.1(b)(1) (1989). The district court denied this reduction because

2

hunting in violation of a condition of probation is not a lawful sporting

use. Waggoner appeals. We affirm.

I.

In June 1989, Waggoner pleaded guilty to one count of unlawful sale

and barter of migratory birds, a felony, and to one count of unlawful

possession of migratory birds, a misdemeanor. See 16 U.S.C. §§ 703, 707(a)

and (b). Waggoner, then a federally licensed taxidermist, committed these

offenses by unlawfully killing, mounting, and selling large numbers of

protected migratory birds. The district court sentenced him to one year

in prison and three years of probation. The judgment included a special

condition that Waggoner "is not to participate in hunting activity while

on probation." In December 1989, the district court suspended the

remainder of Waggoner's prison term based upon his commitment to speak to

conservation and hunting groups about the need to protect game and to

comply with game laws. The court ordered Waggoner, during probation, "not

to participate in hunting activity" and to perform one hundred hours of

community service. 

In March 1990, while speaking to a Ducks Unlimited gathering about

the importance of obeying federal game laws, Waggoner illegally purchased

two collector's shotguns by falsely filling out the federal Firearms

Transaction Record forms. That violated the condition of probation that

he obey federal and state laws. Waggoner also purchased Iowa hunting

licenses in 1990 and 1991 and successfully hunted pheasant on at least one

occasion in the fall of 1990, which violated the special condition of

probation set forth in the district court's judgment and its December 1989

order.
 Waggoner violated both § 922(g) and § 922(n) because he 3

purchased the first two collector's guns while the earlier

indictment was pending. 

 The current guideline has been renumbered § 2K2.1(b)(2). 4

It provides for a reduction "[i]f the defendant . . . 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." (Emphasis added.) 

This change clarifies the inquiry by moving the former

application note's reference to lawful use into the guideline

itself. But the focus on use is unchanged. Therefore, the

result in this case would be the same under the current guideline

as well.

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After a hearing, the court revoked probation because Waggoner's "repeated

violations of his probation are serious and fundamental." The court

sentenced Waggoner to six months in prison, extended his probation to five

years, and imposed additional conditions of probation primarily directed

at his continuing alcohol abuse. 

II.

In June 1995, Waggoner pleaded guilty to the § 922 violation here at

issue -- being a felon in possession of four collector's guns plus the

shotgun used to hunt pheasants in 1990. The Guidelines in effect when

3

Waggoner committed this violation authorized a reduction in determining the

base offense level for a § 922 violation "[i]f the defendant obtained or

possessed the firearm or ammunition solely for lawful sporting purposes or

collection." § 2K2.1(b)(1) (1989). This guideline reflects "the

sentencing commission policy that some types of illegal possessions are

relatively benign by virtue of the use for which such possession is

intended -- use that would be lawful if exercised by one not previously

convicted of a felony." United States v. Shell, 972 F.2d 548, 552 (5th

Cir. 1992) (emphasis in original). The 1989 Commentary confirmed that the

inquiry focuses on "intended lawful use, as determined by the surrounding

circumstances." § 2K2.1, comment. (n.2) (1989).4
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The issue before us is narrow. The government concedes, correctly

in our view, that Waggoner cannot be denied the reduction simply because

a felon may not lawfully possess firearms for hunting or collection. See

United States v. Prator, 939 F.2d 844, 847 (9th Cir. 1991); United States

v. Buss, 928 F.2d 150, 152 (5th Cir. 1991). The government also concedes

that the four collector's guns were possessed "solely for lawful . . .

collection," thus warranting a § 2K2.1(b)(1) (1989) reduction. But the

government argues the reduction must be denied because Waggoner's use of

the fifth firearm violated the no-hunting condition of his probation and

therefore was not "solely for lawful sporting purposes." 

Waggoner argues that he is entitled to the reduction because his

hunting activity did not violate any state or federal statute or regulation

-- he held a valid hunting license, hunted only in season, did not exceed

applicable bag limits, and so forth. Waggoner concedes, as he must, that

he is not entitled to a § 2K2.1(b)(1) reduction if his intended sporting

use was unlawful. See Shell, 972 F.2d at 552 (reduction not available if

defendant hunted wild turkey "out of season, in an illegally baited area").

Thus, the issue is whether the gun used to hunt pheasants was possessed

"solely for lawful sporting purpose" given Waggoner's no-hunting condition

of probation. Waggoner has the burden of proof on this issue. See United

States v. Dinges, 917 F.2d 1133, 1135 (8th Cir. 1990). However, the

relevant facts are undisputed. This is an issue of Guidelines

interpretation we review de novo. See United States v. Hensley, 36 F.3d

39, 41 (8th Cir. 1994). 

The Sentencing Commission did not define "lawful use" in

§ 2K2.1(b)(1). Therefore, we look to that phrase's ordinary meaning -- use

that is "conformable to law" or "allowed or permitted by law." United

States v. Johnson, 968 F.2d 208, 212 (2d Cir.), cert. denied, 506 U.S. 964

(1992). Viewed in that light, hunting in violation of two court orders

does not appear to be lawful use. "[M]odern judicial decrees . . . have

the binding
-5-

effect of laws for those to whom they apply." Young v. United States ex

rel. Vuitton et Fils S.A., 481 U.S. 787, 822 (1987) (Scalia, J.,

concurring). 

Waggoner nonetheless argues that he is entitled to the reduction

because he obeyed all Iowa hunting laws and regulations and therefore

committed no crime when pheasant hunting in 1990. Even if the word

"lawful" in § 2K2.1(b)(1) means conformance with the criminal laws (an

issue we need not decide), Waggoner's definition of crime is too narrow.

He violated an express court order not to engage in "hunting activities,"

an order entered to protect the public from the resumption of his prior

illegal activities. The district court had inherent power to punish for

contempt of that order, a power "absolutely essential to the performance

of [its] duties." Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450

(1911). 

The purpose of criminal contempt is to "punish the act of

disobedience as a public wrong." Michaelson v. United States ex rel.

Chicago, S.P., Minn. & Omaha Ry., 266 U.S. 42, 65 (1924). Beginning with

the Judiciary Act of 1789, Congress has both ratified and circumscribed the

power to punish for contempt. See Green v. United States, 356 U.S. 165,

169-72 (1958); Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510-11 (1873);

Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227-28 (1821). The current

statute authorizing federal courts to punish for criminal contempt is part

of the criminal code. See 18 U.S.C. § 401. As the Supreme Court has

stated, "Criminal contempt is a crime in the ordinary sense; it is a

violation of the law, a public wrong which is punishable by fine or

imprisonment or both." Bloom v. Illinois, 391 U.S. 194, 201 (1968). Thus,

while the punishment imposed on Waggoner for violating these particular

court orders was probation revocation, his conduct is properly considered

unlawful in the criminal sense of that term.
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Waggoner also argues that he has been denied the reduction simply

because as a felon he violated § 922 by hunting with a firearm. But

Waggoner's special condition of probation was not only that he refrain from

hunting with a firearm -- that would have been superfluous to the general

condition that he obey all laws, including § 922. Rather, Waggoner was

prohibited from all "hunting activity," which would include activities such

as hunting with bow and arrow, or enlisting friends or customers to shoot

migratory birds that he could then illegally mount and sell. Waggoner

violated this special condition. He committed the violation by using a

firearm that was in his possession for this unlawful sporting purpose. For

that reason, a reason peculiar to Waggoner's § 922 offense, he was properly

denied a § 2K2.1(b)(1) reduction.

The sentence of the district court is affirmed. Because the court's

judgment provided that Waggoner would remain on bond pending appeal, the

case is remanded for amendment of that judgment consistent with this

opinion.

BRIGHT, Circuit Judge, dissenting.

I believe Rick Waggoner's hunting was consistent with the purpose of

the § 2K2.1(b)(1) reduction. Accordingly, I dissent. 

Waggoner pled guilty to being a felon in possession of a firearm.

The district court determined that Waggoner's sentencing range was 10-16

months and sentenced him to five months incarceration and five months home

confinement. Waggoner asserts that he was entitled to a reduction under

the Sentencing Guidelines because he used the firearm for a "lawful

sporting purpose." If the reduction applies, Waggoner falls within a 0-6

month sentencing range. I believe the reduction is appropriate.
 The district court made repeated references to the injustice 1

of the 10-16 month sentencing range:

It pains me to rule against you. Personally I would

want to rule in your favor. It's a close enough question

I would like to rule in your favor to get into a

sentencing range that I think is more just, . . . .

(Sentencing Tr. at 33.) 

. . . .

I -- I am the first one to recognize I could be wrong.

I hope I'm wrong. I hope the Eighth Circuit sees it your

way, . . . . (Id. at 34.)

. . . . 

[The 10-16 month range] is too harsh, it's too long, it's

too severe, . . . . If it were up to me, I would give you

probation. I wouldn't hesitate. (Id. at 41.) 

After sentencing Waggoner to the most lenient sentence

available, the court observed that "[i]f I could do less than that,

I would. But my hands -- my hands are bound." Id.

-7-

DISCUSSION

I.

The 1989 version of U.S.S.G. § 2K2.1(b)(1) states, "[i]f the

defendant obtained or possessed the firearm or ammunition solely for lawful

sporting purposes or collection, decrease the offense level determined

above to level 6." Waggoner hunted with a license during hunting season

and obeyed all gaming laws. Accordingly, the Government concedes that

Waggoner used the gun solely for a sporting purpose (i.e. hunting) and only

contests the lawfulness of that hunting. The district court reluctantly

agreed that Waggoner hunted unlawfully because a probation condition

instructed him not to hunt. (Sentencing Tr. at 33.) 1

The majority opinion concludes that Waggoner's hunting was not

"lawful" by making two arguments. First, the majority opinion
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holds that, for purposes of § 2K2.1(b)(1), the term "lawful" must be given

its "ordinary" meaning. Slip Op. at 4. Second, the majority opinion

determines that Waggoner's hunting was unlawful because he could be held

in criminal contempt of court for violating a probation condition that he

not hunt. Id. at 5. 

I respectfully disagree. First, the majority's definition of

"lawful" finds no support in the case law, is implicitly rejected by every

court analyzing the reduction, and contradicts a definition of "lawful"

utilized in a case quoted approvingly by the majority. Second, the

majority's contempt argument cannot be distinguished from recent Eighth

Circuit law.

A.

Whether the § 2K2.1(b)(1) reduction applies depends on whether

Waggoner's hunting was "lawful." The majority opinion, searching for a

definition of "lawful," observes that "lawful" is not defined within

§ 2K2.1(b)(1), slip op. at 4, then decides to define "lawful use" by

"look[ing] to that phrase's ordinary meaning . . . ." Id. The majority

opinion concludes that Waggoner's hunting was not within the ordinary

meaning of "lawful" because he violated a condition of his probation. Id.

at 5.

The majority opinion concedes, however, that "Waggoner cannot be

denied the reduction simply because a felon may not lawfully possess

firearms for hunting or collection." Id. at 4. By definition, then, the

"ordinary" meaning of "lawful" cannot be used for § 2K2.1(b)(1) as it

"would render . . . [the reduction] a nullity, because the provision

applies only to the receipt, possession, or transportation of firearms by

`prohibited persons,' or persons who could not lawfully possess them."

United States v. Buss, 928 F.2d 150, 152 (5th Cir. 1991).
-9-

Felons are not the only individuals who receive the benefits of

§ 2K2.1(b)(1) despite their unlawful use. For example, fugitives from

justice, illegal aliens, those dishonorably dismissed from the Armed

Forces, and individuals who renounce their citizenship are all forbidden

from possessing firearms, 18 U.S.C. § 922(g), and the application of an

"ordinary" definition of "lawful" would preclude them from the reduction.

Of course, the reduction does apply to these individuals, United States v.

Prator, 939 F.2d 844, 846-47 (9th Cir. 1991), because the courts do not

adopt the "ordinary" definition of "lawful" for § 2K2.1(b)(1).

In fact, the Sentencing Commission intended to sentence felons in

possession who use guns in a manner not involving criminal activity or with

the potential to harm other people less severely than other felons in

possession. See, e.g., United States v. Lam, 20 F.3d 999, 1002 (9th Cir.

1994) ("[W]e do see a good deal of logic in the Commission's decision to

limit the reduction to those who hold a weapon for lawful sporting or

collection purposes. Neither of those purposes encompasses the killing or

maiming of human beings, but personal protection surely does."); Buss, 928

F.2d at 152 ("[A] former felon who possesses a firearm for use in hunting

does not raise the same concerns as one who possesses a firearm for use in

future crimes."). This policy is also consistent with the commentary notes

to § 2K2.1(b)(1). Prator, 939 F.2d at 846 ("The commentary to section

2K2.1(b)(1) fully supports our view that the Sentencing Commission intended

to reduce the punishment if the illegally possessed firearm was not

intended to be used for criminal activities."). 

In my view, the Fifth Circuit correctly defines "lawful" as a

sporting purpose or collection that would be lawful if performed by any

citizen free of all legal disabilities. United States v. Shell, 972 F.2d

548, 552-53 (5th Cir. 1992). This definition is consistent with the

language and purpose of the reduction. 
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The majority quotes Shell regarding the policy underlying the

§ 2K2.1(b)(1) reduction, slip op. at 3, but fails to mention a detailed

discussion in the following paragraph of Shell which contradicts the

argument that Waggoner's hunting was unlawful:

[T]he reduction provisions . . . for felons in possession do

not turn on the axiomatic truism that a felon can never

lawfully possess a firearm. The entire reduction would clearly

be subsumed in such a proposition. Rather, the availability of

the reduction turns on the purpose or use for which the firearm

is acquired or possessed and the lawfulness of such use if it

were to be exercised by a citizen not under any legal

disability--lawful hunting, lawful target practice, or lawful

gun collecting. 

Id. at 552 (emphasis added).

Shell then clarified an earlier decision, United States v. Pope, 871

F.2d 506 (5th Cir. 1989), which suggested that a felon could never lawfully

possess a gun collection under § 2K2.1(b)(1). The majority opinion quotes

Shell a second time without mentioning that the sentences immediately

preceding and following the quoted phrase, when read in the context of the

entire opinion, appear to contradict the holding of the majority. I quote

the three sentences in their entirety, with the phrase quoted by the

majority underlined:

The unavailability of the reduction in Pope stemmed not from

the fact that felons cannot possess guns in a collection, but

from the unlawful nature of the gun collection--one which

included an unregistered silencer--because even a citizen free

of all [legal] disabilities could not lawfully possess such a

collection. The same would be true, for example, if the felon

possessed a shotgun for the purpose of hunting wild turkey, but

did so out of season, in an illegally baited area. As that

would be an unlawful sporting possession by any citizen, the

sporting purpose reduction would be unavailable to the

convicted felon. 

Id. at 552-53 (emphasis added).
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In Shell, the Fifth Circuit makes explicit what was implicit in the

case law by emphasizing the lawfulness of the activity from the perspective

of a citizen who is "not under any legal disability." Id. at 552 (emphasis

added). Indeed, the analysis of the lawfulness of the hunting under the

reduction "turns" on this analysis. Id. (emphasis added). Thus, we do not

consider whether the individual is a felon, on probation, released on bail,

or under a court order forbidding him to hunt, because these individualspecific factors are irrelevant for purposes of determining, as a general

matter, what constitutes a "lawful sporting purpose." Of course, under

this view of § 2K2.1(b)(1), Waggoner is entitled to the reduction because,

if a citizen, not under the legal disabilities of Waggoner's probation

conditions, engaged in the hunting actually performed by Waggoner, that

hunting would be lawful. 

B.

The majority's second argument is that Waggoner's hunting was

unlawful because, by violating a condition of probation, Waggoner

theoretically could be prosecuted for criminal contempt. Slip Op. at 5.

This is not consistent with this court's precedent. In United States v.

Mendoza-Alvarez, 79 F.3d 96 (8th Cir. 1996), the defendant pled guilty to

illegal entry after deportation for a felony in violation of 8 U.S.C.

§ 1326(a) and being an illegal alien in possession of a firearm in

violation of 18 U.S.C. § 922(g)(5). Id. at 97. Mendoza-Alvarez asserted

he should receive a § 2K2.1(b)(2) reduction because he possessed the

firearm solely for hunting, but the district court denied the reduction

because Mendoza-Alvarez violated Iowa law by operating his vehicle with a

loaded rifle. Id. This court reversed and remanded, holding that

"transporting a firearm in violation of auto safety laws does not

constitute, per se, an `otherwise unlawful use' of a firearm . . . ." Id.

at 98. 
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Under the majority's reasoning in this case, however, MendozaAlvarez's hunting would not constitute a "lawful sporting purpose."

Presumably, the district court order deporting Mendoza-Alvarez directed him

not to return to this country. Thus, Mendoza-Alvarez could be held in

criminal contempt for reentering and, therefore, his hunting could not be

"lawful." In addition, Mendoza-Alvarez committed another crime, beyond

unlawful possession of a firearm, by illegally reentering the country.

Finally, Mendoza-Alvarez could not "lawfully" hunt in Iowa because he could

not lawfully hunt anywhere in the country. 

A unanimous Mendoza-Alvarez court, however, engaged in no discussion

whatsoever of the "lawfulness" of Mendoza-Alvarez's hunting in relation to

the fact that he could not, by definition, hunt lawfully in this country.

Nor did the court consider whether Mendoza-Alvarez could be in contempt for

violating a court order by reentering. The court did not explore these

issues because they are irrelevant for a determination of the lawfulness

of the hunting. 

It is instructive, however, to observe the facts which this court did

find indicative of "lawful" hunting. For example, this court noted that

Mendoza-Alvarez presented evidence that he possessed the firearm solely for

hunting, hunted the morning of his arrest, and possessed an Iowa hunting

license. Id. at 98. Indeed, this court noted that, from this evidence,

"a reasonable trier of fact could conclude that he `possessed all . . .

firearms solely for lawful sporting purposes,' i.e., hunting pursuant to

a state hunting license." Id. (emphasis added).

Furthermore, under the majority's reasoning, virtually no individual

on probation can receive a § 2K2.1(b)(1) reduction because probation orders

include boilerplate conditions that the probationer obey all federal and

local laws. A probationer who carries a gun, for example, violates federal

law. Thus, every
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probationer who hunts violates a condition of probation and could

theoretically be held in contempt. Of course, no court holds that the

reduction is inapplicable for probationers because such a result violates

the purpose of the reduction. In short, the potential of a contempt

conviction fails to illuminate whether the hunting itself was lawful.

II.

When the above analysis is framed by an examination of the Sentencing

Commission's commentary for § 2K2.1(b)(1), the lawfulness of Waggoner's

hunting is apparent. The commentary notes state:

Under § 2K2.1(b)(1), intended lawful use, as determined by the

surrounding circumstances, provides a decrease in the offense

level. Relevant circumstances include, among others, the

number and type of firearms (sawed-off shotguns, for example,

have few legitimate uses) and ammunition, the location and

circumstances of possession, the nature of the defendant's

criminal history (e.g., whether involving firearms), and the

extent to which possession was restricted by local law. 

U.S.S.G. § 2K2.1, comment. (n.2) (1989).

These factors favor Waggoner. There is no dispute that (1) Waggoner

used a hunting shotgun, not a sawed-off shotgun or otherwise illegal gun,

and his ammunition consisted of field loads for pheasants; (2) Waggoner

hunted safely and in an appropriate location; (3) Waggoner had no prior

conviction involving the illegal use of guns; and (4) local law permitted

Waggoner to hunt during hunting season and with a license. 

I find no case which considers, as a relevant factor under the

commentary notes to § 2K2.1(b)(1), the probationary status of the felon in

possession or the possibility of a contempt order. In my
 Indeed, courts repeatedly describe violations of probation 2

conditions or supervised release as a "breach of trust." See,

e.g., United States v. Glasener, 981 F.2d 973, 975 (8th Cir.

1992) ("breach of trust" for violation of terms of supervised

release); United States v. Agard, 77 F.3d 22, 26 (2d Cir. 1996)

("breach of trust" for violation of condition of probation);

United States v. Gaskins, 849 F. Supp. 1102, 1105 (E.D. Va. 1994)

(stating that defendant lying to probation officer constituted a

"serious breach of trust"). In fact, the district court

considered Waggoner's transgression consistent with this view

because the court stated in its revocation of probation that

Waggoner "has proven by his conduct to be unworthy of the trust a

probationary sentence is based upon." (Appellee's Add. at 29.) 

Viewing a probation violation as a "breach of trust" is logical

because "[i]n order to justify a revocation order `all that is

required is enough evidence, within a sound judicial discretion,

to satisfy the district judge that the conduct of the probationer

has not met the conditions of probation.'" United States v.

Goeller, 807 F.2d 749, 751 (8th Cir. 1986) (quoting United States

v. Burkhalter, 588 F.2d 604, 606 (8th Cir. 1978) (quoting United

States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973))). 

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view, we should adopt the reasoning of the Fifth Circuit in Shell because

it offers a standard consistent with the purpose of the § 2K2.1(b)(1)

reduction and is faithful to the commentary notes which focus upon the

lawfulness of the hunting itself, not whether the defendant was under any

sort of legal disability.

Finally, the above analysis of "lawful sporting purpose" is

consistent with the Sentencing Guidelines treatment of probation

violations. The Guidelines define a violation of a condition of probation

as a "breach of trust," U.S.S.G. Ch. 7, Pt. A, intro. comment. 3(b) (Nov.

1995), and reached this conclusion only after a careful consideration of

two competing theories regarding sanctioning violations of probation. Id.

This provision of the Guidelines indicates the Sentencing Commission's

recognition of a distinction between breach of trust and unlawful

behavior. 

2
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CONCLUSION

Waggoner's actions fit squarely within the behavior envisioned by the

Sentencing Commission when it formulated the reduction for "lawful sporting

purposes." Accordingly, I would reverse the judgment of the district court

and remand for resentencing.

A true copy.

Attest:

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