IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-7109

Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL ANTHONY SHELL,

Defendant-Appellant.

Appeal from the United States District Court

For the Northern District of Texas

(September 2, 1992)

Before KING, HIGGINBOTHAM and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Michael Anthony Shell was sentenced within

the guidelines following his conviction on pleas of guilty to one

of two counts of making false written statements in the process of

acquiring a firearm, in violation of 18 U.S.C. § 922(a)(6), and to

one of two counts of unlawful receipt of firearms by a convicted2

fel on, in violation of 18 U.S.C. § 922(g)(1). He was, however,

denied a reduction of six points in his offense level under

U.S.S.G. § 2K2.1(b)(1), the guideline provision for s entence

reduction "[i]f the defendant obtained or possessed the firearm

...

solely for lawful sporting purposes or collection . . . ." Shell

appeals the refusal of the district court to grant the six level

reduction for sporting purposes. Finding no error, we affirm.

I

FACTS AND PROCEEDINGS

On separate occasions Shell purchased a .30 caliber rifle and

a 9 mm. pistol from a licensed firearms dealer. On each occasion

the dealer required Shell to complete a standard ATF form that

included the question whether Shell had been convicted of a crime

punishable by imprisonment for a term exceeding one year. As Shell

had been convicte d of the offense of burglary of a building and

sentenced to three ye ars' imprisonment, his negative response to

that question was false. The investigating ATF agents went to

Sh ell's home and, upon entering, observed the subject rifle and

pistol in plain view. The instant charges ensued.

Pursuant to a plea agreement, Shell pleaded guilty to one

c ount under § 922(a)(6) and one count under § 922(g)( 1). He

subsequently objected to the presentence investigation report

(PSR), claiming that he acquired the guns for lawful, recreational

purposes which entitled him to a "sporting purpose" r eduction of

six points in his offense level, as required under § 2K2.1(b)1. In

support of his contention, Shell testified that he bought the guns3

to use in target practice; that even though he lived in an

apartment in town he had access to "a lot of land out in the

country" where he could go for target practice. He bolstered his

own statements with testimony of his mother that Shell had always

lived in a rural area and owned guns for sporting purposes. Shell

also adduced testimony from his brother that, in the past, both he

and Shell had owned pistols for target practice and long guns for

deer and bird hunting. Shell's brother also testified that their

father had owned guns, and that while growing up they considered

gun ownership and use to be normal.

The district court observed that when the ATF agents entered

Shell's urban apartment they found both guns loaded; that his past

criminal history indicated a possibility that the guns might not be

used solely for a lawful sporting purpose as required by the

guideline; that the nature of the particular 9mm. handgun made it

unlikely that the pistol was acquired solely for a lawful sporting

purposes; and that giving false information to acquire the guns is

in consistent with obtaining firearms solely for lawful sporting

purposes. In consequence of those observations the court found

Shell's evidence "not credible" and, based on the factual finding

that Shell did not acquire the guns solely for lawful sporting

purposes, denied a six-level reduction under the version of

§ 2K2.1(B)(1) that was in effect on the date of the offense.

II

ANALYSIS

F or purposes of the guidelines, the sentencing court's1 United States v. Mourning , 914 F.2d 699, 704 (5th Cir.

1990).

2 United States. v. Keller , 947 F.2d 739, 741 (5th Cir.

1991) (citations omitted); United States v. Alfaro , 919 F.2d 962

(5th Cir. 1990).

3 United States v. Otero , 868 F.2d 1412, 1414 (5th Cir.

1989).

4 findings of fact are reviewed under the "clearly erro neous

standard. 1 A felon "claiming a reduction in the offense level

[under § 2K2.1(B)(2)] bears the burden of establishing entitlement"

by a preponderance of the evidence. 2 Given Shell's burden of proof

and the reasons articulated by the district court, its findings of

fact are not clearly erroneous.

As distinguishe d from findings of fact, application of the

facts to the guidelines is a question of law subject to de novo

review. 3

The guidelines provision in effect at the time here in

question poses some doubt as to the availability of the six-level

reduction for the "false statement" violation of § 922(a)(6).

Moreover, some of the obiter dicta of our earlier opinions on the

"sporting purposes or collection" provision make our

jurisprudential rules on the subject less than lucid. Still, our

de novo review shows the district court's application of the facts

to the guidelines in this case to be free of error.

The version of the guidelines applicable to Shell is the one

promulgated effective November 1, 1989. The applicable version of

Section 2K2.1(b)(1) instructed s e ntencing courts that, if the

defendant "obtained or possessed the firearm

... solely for lawful4 871 F.2d 506 (5th Cir. 1989)

5 928 F.2d 150 (5th Cir. 1991)

5 sporting purposes or collection, decrease t he offense level

determined above to level 6." (emphasis added). Although 18

U .S.C. § 922(g) is one of the crimes of conviction li sted in

§ 2K2.1, Unlawful Receipt, Possession, or Transp ortation of

Firearms or Ammunition

, and thus is one for which the offense level

was "determined above," we observe that § 922 (a)(6), proscribing

the making of a false statement, is not among the cri mes of

conviction listed in § 2K2.1. Nevertheless, in the " C ommentary " to

§ 2K2.1, the list of "Statutory P rovisions" does include

§ 922(a)(6). We therefore conclude that then, as now, the

reduction provided in § 2K2.1(b)(1) for obtaining or posse ssing

firearms for lawful sporting purposes or collection was potentially

available to persons who guilty of violating, inter alia,

§§ 922(a)(6) as well as 922(g)(1).

We are constrained here to clarify any perceived murkiness in

our jurisprudence on the six-level reduction provisions of

guidelines § 2K2.1(b). Some confusion might result if dicta in

United States v . Pope

, 4 is read in pari materiae with dicta in

United States v. Buss 5

, both of which are firearms cases involving

defendants who were convicted felons and thus incapable of lawfully

obtaining or possessing firearms. The defendant in Pope was

charged not only with being a convicted felon in possession of an

otherwise lawful firearm, in violation of 18 U.S.C. § 922(g), but

also with possession of a silencer, a device which, if unregistered6 871 F.2d at 508. (emphasis added)

7 Id. at 509.

6 (as in Pope's case), is not susceptible of being lawfully obtained

or possessed without violating 26 U.S.C. § 5861(d), even by a

citizen who is not a convicted felon and therefore not laboring

under the general proscription of felons possessing firearms.

Pope insisted that he was entitled to a decrease in offense

level under the guidelines because he acquired the firearm and the

unregistered silencer for purpose s of adding them to his gun

collection. In rejecting Pope's contention, this court held that

"only a lawful collection of guns can be considered as a mitigating

factor u nder [the applicable guideline section]" 6 ; or, stated

another way, that "as a matter of law only a gun collection that is

not i tself unlawful can be used to reduce an offense level under

[the applicable guideline]." 7

From the fact situation in Pope and those two quotations, it

is clear that the gravamen of the holding is that, irrespective of

the quality of the gun collect er (e.g., a felon vis-a-vis a legally

competent, unconvicted citizen), the fact that the collec tion was

itself unlawful by virtue of the inclusion of the unregistered

silencer prevented Pope from obtaining the 6-level red u ction.

Implicit in the Pope holding is the converse conclusion that if the

collection in question had not itself been an unlawful one, Pope

might have been eligible for the 6-level reduction for obtaining or

possessing the firearm in question as part of the gun collection,

even though as a convicted felon he would still be in eligible to8 Id. at 510 (emphasis added).

9 928 F.2d 150 (5th Cir. 1991).

7 acq uire or possess a collection of guns and thus would still be

guilty of the firearms offense of conviction.

That much is clear. But the possibility that a casual reading

of the Pope opinion might mislead or confuse arises from the

language of t he second sentence in part V. C onclusion : "We

conclude, however, that as a matter of law Pope's accumulation of

guns cannot be used to reduce his offense level under [the

applicable guideline] because it was illegal for him to possess any

guns ." 8 If read out of context, that statement would seem to say

that any time the collect er cannot legally possess firearms, he or

she cannot receive the 6-level reduction. But that cannot be; if

it were, that statement would swallow the reduction guideline

itself.

As the guideline only applies to convicted felons who obtain

or possess firearms and, by definition, convicted felons can never

legally obtain or possess guns, there would be no class of persons

eligible for the 6-level reduction under such a reading. When that

concluding sentence is read in context of the pure holding of the

case, as expressed in the two passages first quoted above, it

becomes clear that the Pope test for the § 2K2.1(b) reduction

hinges on the lawfulness of the gun collection, not the eligibility

of the collector to possess guns.

Subsequent to Pope

, we examined in Buss 9 a virtually identical

4-level reduction under a parallel guideline provisio n, one also10 § 2K2.1(b)(2).

11 928 F.2d at 152. (emphasis in original)

12 Id.

8 implicating sporting purposes and gun collections. 10 In B uss

, the

court considered a convicted felon's contention that the sentencing

court erred in accepting the probation officer's recommendation to

deny the 4-level reduction under the sporting purpo se exception

"because Buss could not lawfully possess firearms. . . ." Citing

Pope

, the government argued that, as Buss was a convicted felon, he

could not lawfull y possess guns and therefore was ineligible for

the 4-level reduction. Consistent with the foregoing analysis of

Pop e , however, the B uss panel rejected the government's

interpretation, holding that it "would render [ ] § 2K2.1(b)(2) a

nullity, because the provision applies o nly to the receipt,

possession, or transportation of firearms by `prohibited persons,'

or persons who could not lawfully possess them. . . . [T]he

drafters of t he provision contemplated the lawfulness of the

intended use as a factor separate from the lawfulness of the

possession itself." 11 Had the B uss opinion stoppe d there, the

potential for confusion with Pope would have never arisen. But,

albeit in dic ta, the P ope opinion continued its efforts to

distinguish Buss from Pope on grounds that Pope implica ted

"unregistered firearms." 12 The B uss opinion first states clearly--

and correctly--that the guideline provision in question authorized

the reduction in level not only for use in sport or recreation but

also for use in a gun collection. Perhaps unfortunately, however,9

the Buss opinion conclude by stating that gun collecting is little

m ore than "possession," implying that collecting is not a u se

separat e and apart from p ossession

, while hunting and other

recreational shooting are uses distinct from possession.

In addition to being dictum, that distinction appears to

conflict with the guideline provisions it purports to explain,

§§ 2K2.1(b)(2) and (3). Both of those provisions direct that

reductions be granted in sentence levels for those felons who, in

contravention of the law, possess the firearms. Clearly, those

level reductions are not based on the lawfulness of possession

because there can be no lawful possession of a gun by a convicted

felon. Rather, the reductions are grounded on the sentencing

commission policy that some types of illegal p ossessions are

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

int ended

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

previously convicted of a felony.

Both of the subject guideline pro visions recognize that

possession of a firearm is a physical fact and is always illegal if

the possessor is a felon; but that in addition to the physical fact

of possession there is the subjective quality of the possession,

determine d by the use intended by the possessor. This is better

understood by recognizing that the sentencing levels established in

the guidelines presume that when the person physically possessing

the firearm is a felon the purpose or intended use is nefarious

whether it be for armed robbery, aggravated assault, facilitating

a drug transa ction,or the like. The guidelines nevertheless10

recognize the possibility that ev en a felon's acquisition or

possession of a firearm can be benign when the intended use of the

gun is "solely" for one of two purposes that would be lawful were

the possessor not a felon: either (1) sporting or recreational

use, such as hunting, target practice or competition; or (2) gun

collecting--like hunting or target practice, a specialized use of

a gun legitimately acquired or possessed.

The point of this verbose analysis is to make clear that the

reduction provisions of the guidelines for felons in possession do

not turn on the axiomatic truism that a felon can never lawfully

possess a firearm. The entire reduction provision would clearly be

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

reduction turns on the purpose or u se 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 dis ability-- l awful

hunting, lawful target practice, or lawful gun collect ing. 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 collec tion--one which included an

unregistered silencer--be cause even a citizen free of all

disabilities could not lawfully possess such a col lection. 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 u nlawful sporting

possession by any citizen, the sporting purpose reduction would be

unavailable to the convicted felon. Likewise, if a felon11

possessing a target rifle were apprehended while shooting out

street lights within the city limits, the reduction would not be

available because his shooting would not be lawful target practice

even if the shooter were not a convicted felon.

Under such an analysis, it becomes even clearer that Shell, as

a convicted felon, was properly denied the 6-level reduction. Even

though under certain circumstances his .30 caliber rifle and a 9mm.

pistol could be possessed solely for lawful sporting purposes, the

facts found by the district court reflect that such was not the

case here. None but the most negligent of target shooters would

keep legitimate sporting firearms loaded in the home. Moreover, it

is not sufficient that one among several intended uses might be

lawful recreation or collection; one of those must be the sole

intended uses. The district court did not credit Shell's

contention that he falsified the ATF form to purchase the guns and

thereafter kept them loaded in his house, solely for lawful

recreation purposes. Particularly in light of Shell's criminal

history, we are loathe to label the findings of the sentencing

court clearly erroneous.

AFFIRMED.