### 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 Wag goner went pheasant hunting in the fall of 1990, violatin g
a special condition of his probation and the federal statute barring felon s from possessing firea rms, 18 U.S.C. § 922. When this and other probation violati ons 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 c onduct that led to his probation revocation. This appeal raises a sentencin g issue -- whether Waggoner's base offense level for the § 922 violatio n 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.
-2- "possessed the firearm . . . solely for lawful sporting purposes," U.S.S.G

. § 2K2.1 (b)(1) (1989). The district court denied this reduction becaus e 2 hunting in violation of a condition of probation is not a lawful sporting use. Waggoner appeals. We affirm.

I.

In June 1 989, Waggoner pleaded guilty to one count of unlawful sale and barter of migratory birds, a felony, and to one count of unlawfu l possession of migratory birds, a misdemeanor. See 16 U.S.C. §§ 703, 707(a ) and (b). Waggoner, then a federally licensed ta xidermist, committed these offens es by unlawfully killing, mounting, and selling large numbers o f protected migratory birds. The district court sentenced him to one year in prison and three years of probation. The judgment included a special conditionthat Waggoner "is not to participate in hunting activity while
on proba tion." In December 1989, the district court suspended th e remainder of Waggoner 's prison term based upon his commitment to speak to conservati on and hunting groups about the need to protect game and t o comply with game laws. The court ordered Waggon er, during probation, "not to participate in hunting activity" and to perform one hundred hours o f community service.

In March 1990, while speaking to a Ducks Unlimited gathering abou t the importance of obe ying federal game laws, Waggoner illegally purchased two co llector's shotguns by falsely filling out the federal Firearm s TransactionRecord forms. That violated the condition of probation that he obey fe deral and state laws. Waggoner also purchased Iowa huntin g licenses in 1990 and 1991 and successfully hunte d pheasant on at least one occasion i n the fall of 1990, which violated the special condition o f 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.
-3- After a hearing, the court revoked probation because Waggoner's "repeated viol ations of his probation are serious and fundamental." The cour t sentenced Waggoner to six months in prison, exte nded his probation to five years, and imposed additional conditions of probation primarily directed at his continuing alcohol abuse.

II.
In June 1995, Waggoner pleaded guilt y to the § 922 violation here at issue -- being a felon in possession of four collector's guns plus th e shotgun used to hunt pheasants in 1990. The Guidelines in effect whe n 3 Waggoner committed this violation authorized a reduction in determining th e base offense level for a § 922 violation "[i]f the defendant obtained or possessed the firearm or ammunition solely for l awful sporting purposes or collec tion." § 2K2.1(b)(1) (1989). This guideline reflects "th e senten cing commission policy that some types of illegal possessions ar e relativel ybenign by virtue of the use for which such possession i s intended -- use that would be lawful if exercised by one not previousl y convict ed of a felony." United States v. Shell , 972 F.2d 548, 552 (5t h Cir. 1992) (emphasis in original). The 1989 Com mentary confirmed that the inquiry focuses on "i ntended lawful use, as determined by the surrounding circumstances." § 2K2.1, comment. (n.2) (1989). 4

### -4- The issu e before us is narrow. The government concedes, correctl y in our view, that Waggoner cannot be denied the reduction simply because a felon may not lawfu lly possess firearms for hunting or collection. See United States v. Prat or , 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 . .

. col lection," thus warranting a § 2K2.1(b)(1) (1989) reduction. But th e 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."

Wa ggoner argues that he is entitled to the reduction because hi s hunting activity did not violate any state or federal statute or regulatio n -- he held a valid hu nting 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. Se e 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 possesse d "solely for lawful sporting purpose" given Waggo ner'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, th e releva nt facts are undisputed. This is an issue of Guideline s interpretationwe review de novo

. See United States v. Hensley , 36 F.3d 39, 41 (8th Cir. 1994).

The Sentencing Commission did not define "lawful use" i n § 2K2.1(b)(1). Therefore, we look to that phrase's ordinary meaning -- us e that is "conformable to law" or "allowed or permitted by law." Unite d 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 order s 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
re l. Vuitton et Fils S.A. , 481 U.S. 787, 822 (1987) (Scalia, J. , concurring).

Waggoner nonetheless argues that he is entitled to the reductio n because he obeyed all Iowa hunting laws and regulations and therefor e committed no crime when pheasant hunting in 1990. Even if the wor d "lawful" in § 2K2.1(b)(1) means conformance with the criminal laws (a n issue we need not decide), Waggoner's definition of crime is too narrow. He violated an expres s court order not to engage in "hunting activities,"
an order entered to protect the public from the resumption of his prio r 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 o f disobedien ce 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 th e 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); And erson v. Dunn , 19 U.S. (6 Wheat.) 204, 227-28 (1821). The curren t statute authorizing federal courts to punish for criminal contempt is part of the crimi nal code. See 18 U.S.C. § 401. As the Supreme Court ha s 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 o r imprisonment or both." Bloom v. Illinois , 391 U.S. 194, 201 (1968). Thus , while the punishment imposed on Waggoner for violating these particula r court orders was prob ation revocation, his conduct is properly considered unlawful in the criminal sense of that term.

### -6- Waggo ner also argues that he has been denied the reduction simpl y be cause as a felon he violated § 922 by hunting with a firearm. Bu t Waggoner's special condition of probation was not only that he refrain fro m hunting with a firear m -- that would have been superfluous to the general condition that he obey all laws, including § 922. Rather, Waggoner wa s prohibited from all "hunting activity," which would include activities suc h as hunting with bow a nd arrow, or enlisting friends or customers to shoot migra torybirds that he could then illegally mount and sell. Waggone r violated this special condition. He committed the violation by using a firearm that was in his possession for this unlawful sporting purpose. Fo r that reason, a reason peculiar to Waggoner's § 922 offense, he was properl y denied a § 2K2.1(b)(1) reduction.

The sentence of the district court i s 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 thi s opinion.
BRIGHT, Circuit Judge, dissenting.
I believe Rick Waggoner's hunting wa s 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 incarcer ation 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 "lawfu l sporting purpose." I f the reduction applies, Waggoner falls within a 0-6 month sentencing range. I believe the reduction is appropriate.

### The distric t court made repeated references to the injustice 1 

### of the 10-16 month sentencing range:

It pains me to rule against you. Personally I woul d want to rule in your favor. It's a close enough questio n 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 you r 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 yo u probation. I wouldn't hesitate. ( Id. at 41.)
After sentencing Waggoner to the most lenient sentenc e available, the court observed that "[i]f I could do less tha n 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 th e defendant obtained or possessed the firearm or ammunition solely for lawfu l spor ting purposes or collection, decrease the offense level determine d above to level 6 ." Waggoner hunted with a license during hunting season and obeyed all gaming laws. Accordingly, the Government concedes tha t Waggoner used the gun solely for a sporting purpose (i.e. hunting) and onl y contests the lawfulness of that hunting. The district court reluctantly ag reed that Waggoner hunted unlawfully because a probation conditio n instructed him not to hunt. (Sentencing Tr. at 33.) 1

The ma jority opinion concludes that Waggoner's hunting was no t "lawful" by making two arguments. First, the majority opinion

### -8-

holds that, for purposes of § 2K2.1(b)(1), the t erm "lawful" must be given its "ordinary" meaning. Slip Op. at 4. Second, the majority opinio n 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 o f "lawful" finds no support in the case law, is im plicitly rejected by every court analyzing the reduction, and contradicts a definition of "lawful " utilized in a case quoted approvingly by the majority. Second, th e majority's contempt argument cannot be distinguished from recent Eight h Circuit law.

A.

Whethe r the § 2K2.1(b)(1) reduction applies depends on whethe r Wag goner's hunting was "lawful." The majority opinion, searching for a defini tion of "lawful," observes that "lawful" is not defined withi n § 2K2. 1(b)(1), slip op. at 4, then decides to define "lawful use" b y "look[ing] to that phrase's ordinary meaning . . . ." Id. The majority opinio n concludes that Waggoner's hunting was not within the ordinar y meaning of "lawful" because he violated a condit ion of his probation. Id. at 5.

The majority opinion concedes, however, that "Waggoner cannot b e deni ed the reduction simply because a felon may not lawfully posses s 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 i t "wou ld render . . . [the reduction] a nullity, because the provisio n applies only to the r eceipt, possession, or transportation of firearms by `prohi bited persons,' or persons who could not lawfully possess them. " United States v. Buss , 928 F.2d 150, 152 (5th Cir. 1991).

### -9- Felons ar e not the only individuals who receive the benefits o f § 2K2.1(b)(1) despite their unlawful use. For example, fugitives fro m ju stice, illegal aliens, those dishonorably dismissed from the Arme d Forces, and individuals who renounce their citizenship are all forbidden frompossessing firearms, 18 U.S.C. § 922(g), and the application of a n "ordinary" definitionof "lawful" would preclude them from the reduction. Of course, the reduction does apply to these ind ividuals, United States v. Prator , 9 39 F.2d 844, 846-47 (9th Cir. 1991), because the courts do no t adopt the "ordinary" definition of "lawful" for § 2K2.1(b)(1).

In fact, the Sentencing Commission intended to sentence felons i n possession who use guns in a manner not involving criminal activity or wit h the potent ial to harm other people less severely than other felons i n 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 lim it the reduction to those who hold a weapon for lawful sporting o r collection purposes. Neither of those purposes encompasses the killing or maiming of human beings, but personal protectionsurely does."); Buss , 928 F.2d at 152 ("[A] for mer felon who possesses a firearm for use in hunting does not raise the same concerns as one who poss esses a firearm for use in future crimes."). This policy is also consistent with the commentary note s to § 2K2.1(b)(1). Prator , 939 F.2d at 846 ("The commentary to sectio n 2K2.1(b)(1) fully supports our view that the Sentencing Commission intende d to reduce the punishment if the illegally possessed firearm was no t 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 an y citizen free of all l egal disabilities. United States v. Shell , 972 F.2d 548, 552-53 (5th Cir. 1992). This definition is consistent with th e language and purpose of the reduction.

### -10- The majority quotes Shell regarding the policy underlying th e § 2K2.1(b )(1) reduction, slip op. at 3, but fails to mention a detaile d discus sion in the following paragraph of Shell which contradicts th e argument that Waggoner's hunting was unlawful:
[T]he reduction provisions . . . for felons in possession d o not t urn on the axiomatic truism that a felon can neve r lawfully possess a firearm. The entire reduction w ould clearly be subsumed in such a proposition. Rather, the ava ilability of the reduction turns on the purpose or usefor which the firearm is acquired or possessed and the lawfulness of such use if it were to b e exercised by a citizen not under any lega l disability --lawful hunting, lawful target practice, or lawful gun collecting.

Id. at 552 (emphasis added).

Shell then clarified an earlier deci sion, United States v. Pope , 871 F.2d 506 (5th Cir. 1989), which suggested that a felon could never lawfull y possess a gun collection under § 2K2.1(b)(1). T he majority opinion quotes Shell a second time without mentioning that the sentences immediatel y preceding and following the quoted phrase, when read in the context of the entire opinion, appear to contradict the holdingof the majority. I quote the three sentences in their entirety, with the phrase quoted by th e majority underlined:

The unavailability of the reduction in Pope stemmed not fro m the fact that felons cannot possess guns in a collection, but fromth e unlawful nature of the gun collection--one whic h included an unregisteredsilencer-- because even a citizen free of all [legal] disabilities could not lawfully possess such a collection . The same wo uld be true, for example, if the felon possessed a shotgun for the purpose of hunting wildturkey, but did so ou t of season, in an illegally baited area . As tha t wou ld be an unlawful sporting possession by any citizen , th e spo rting purpose reduction would be unavailable to th e convicted felon.

Id. at 552-53 (emphasis added).

### -11- In Shell , the Fifth Circuit makes explicit what was implicit in the
case law by emphasizing the lawfulness of the activity from the perspectiv e of a citizen who is "not under any legal disability." Id. at 552 (emphasi s added). Indeed, the analysis of the lawfulness of the hunting under the reduction " turns " on this analysis. Id. (emphasis added). Thus, we do no t 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 mat ter, what constitutes a "lawful sporting purpose." Of course, unde r this view of § 2K2.1(b)(1), Waggoner is entitledto the reduction because, if a citizen, not under the legal disabilities of Waggoner's probatio n condit ions, engaged in the hunting actually performed by Waggoner, tha t hunting would be lawful.

B.

The majority's second argument is that Waggoner's hunting wa s unl awful because, by violating a condition of probation, Waggone r theoreticallycould 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 en try after deportation for a felony in violation of 8 U.S.C

. § 1326(a) and being an illegal alien in possession of a firearm i n violation of 18 U.S.C . § 922(g)(5). Id. at 97. Mendoza-Alvarez asserted he s hould receive a § 2K2.1(b)(2) reduction because he possessed th e fir earmsolely for hunting, but the district court denied the reductio n because Mendoza-Alvar ez violated Iowa law by operating his vehicle with a loa ded rifle. Id. This court reversed and remanded, holding tha t "tran sporting a firearm in violation of auto safety laws does no t constitute, per se , an `otherwise unlawful use' of a firearm . . . ." Id. at 98.

### -12- Under the majority's reasoning in this case, however, Mendoza

Alvar ez's hunting would not constitute a "lawful sporting purpose. " Presumably, the district court order deporting Mendoza-Alvarez directed hi m not to return to this country. Thus, Mendoza-Alvarez could be held i n criminal contempt for reentering and, therefore, his hunting could not be "lawful." In addition, Mendoza-Alvarez committed another crime, beyon d unlawf ul possession of a firearm, by illegally reentering the country

. Finally, Mendoza-Alvarez could not "lawfully" hunt in Iowa because he coul d not lawfully hunt anywhere in the country.

A unanimous Mendoza-Alvarez court, h owever, engaged in no discussion whatsoever of the "lawfulness" of Mendoza-Alvare z's hunting in relation to the fact that he coul d not, by definition, hunt lawfully in this country. Nor did the court consider whether Mendoza-Alvarez could be in contempt fo r violating a court order by reentering. The court did not explore thes e issues because they are irrelevant for a determination of the lawfulness of the hunting.

It is instructive, however, to observe the facts which this cou rt did find indicative of "lawful" hunting. For example, this court noted that Mendoza-Alvarez presented evidence that he possessed the firearm solely fo r 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 reas onable 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 re asoning, virtually no individual
on probation can receive a § 2K2.1(b)(1) reduction because probation order s include boilerplate conditions that the probationer obey all federal and local laws. A probationer who carries a gun, for example, violates federa l law. Thus, every

### -13-

probat ioner who hunts violates a condition of probation and coul d theoreticallybe held in contempt. Of course, no court holds that th e reduction is inapplic able for probationers because such a result violates the pu rpose of the reduction. In short, the potential of a contemp t conviction fails to illuminate whether the hunting itself was lawful.

II.
When the above analysis is framed by an examination of the Sent encing 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), int ended lawful use, as determined by the surrounding circumstances, provides a decrease in the offense level. Relevant circumstances include, among others, th e number and type of firearms (sawed-off shotguns, for example, have few legitimate uses) and ammunition, the location an d circumstances of possession, the nature of the defendant' s cr iminal history ( e.g. , whether involving firearms), and th e 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 shotgu n, not a sawed-off shotgun or otherwise illegal gun, and his ammunition consisted of field loads for pheasants; (2) Waggone r hunted safely and in an appropriate location; (3) Waggoner had no prio r conviction involving the illegal use of guns; and (4) local law permitted Waggoner to hunt during hunting season and with a license.

I fin d no case which considers, as a relevant factor under th e commentary notes to § 2K2.1(b)(1), the probation ary 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))).

-14- 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 ) reduc tion and is faithful to the commentary notes which focus upon th e lawfulness of the hun ting itself, not whether the defendant was under any sort of legal disability.
Finally , the above analysis of "lawful sporting purpose" i s consi stent with the Sentencing Guidelines treatment of probatio n violations. The Guidelines define a violation o f 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 vio lations of probation. Id. This provision of the Guidelines indicates the Sentencing Commission' s recogn itionof a distinction between breach of trust and unlawfu l behavior. 2

### -15- CONCLUSION
Waggoner's actions fit squarely within the behavior envisioned by the Sentencing Commission when it formulated the reduction for "lawful sportin g purposes." Accordingly, I would reverse the judgment of the district cour t and remand for resentencing.

A true copy.

Attest:

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