Unpublished Disposition, 935 F.2d 277 (9th Cir. 1991)

MEMORANDUM^** 

David Neal Thomas appeals his sentence under the Sentencing Guidelines upon his guilty plea to possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. §§ 5861(d) and 5871. Thomas argues that the district court erred in not reducing his offense level to six pursuant to U.S.S.G. Sec. 2K2.1(b) (1). We affirm.

When Thomas was sentenced, section 2K2.1(b) (1) in pertinent part provided that:

If a defendant obtained or possessed the firearm or ammunition solely for lawful sporting purposes or collection, decrease the offense level ... to level six.

U.S.S.G. Sec. 2K2.1(b) (1) (Nov. 1989).

At sentencing, Thomas contended that he possessed the gun with the intent to dispose of it and that section 2K2.1(b) (1) should be interpreted to require the offense level reduction for this allegedly innocent possession. The district court's rejection of both of Thomas's contentions was not error.

The sentencing court found that Thomas had not possessed the sawed-off shotgun to lawfully dispose of it as he argued at sentencing. We review the factual findings upon which a sentence is based for clear error. United States v. Sanchez, 914 F.2d 1355, 1361 (9th Cir. 1990), cert. denied, 111 S. Ct. 1626 (1991). The district court's finding is amply supported by the record. Immediately before his arrest, Thomas was observed engaged in conversation on a street corner with the gym bag in which the gun was concealed. Thomas was observed opening the bag and thereafter telling a man to stop threatening a friend of Thomas's with what appeared to be a tool handle. Thomas then left the street corner with the friend and another individual. When Thomas was stopped by the police shortly thereafter, he was carrying shotgun shells as well as the gun. He told the officers that he was taking the gun to its owner. Subsequently, Thomas gave varying accounts of his intent: (1) that he had been sold the gun and told that it was legal to possess the gun as long as it was not carried on the street, (2) that the gun was for another individual, and (3) that he had bought the gun two weeks earlier, had just learned it was illegal, and was consequently taking the gun to dispose of it at the time he was stopped.

We review de novo the district court's holding that section 2K2.1(b) (1) would not apply to Thomas even if he had possessed the gun with intent to dispose of it. Sanchez, 914 F.2d at 1361. We agree with the district court's interpretation of the section. The section plainly limits its application to possession for "lawful sporting purposes" and "collection." See United States v. Wilson, 878 F.2d 921 (6th Cir. 1989) (interpreting earlier version of section providing for reduction if obtained or possessed "solely for sport or recreation"). Thomas's argument that the application and background notes to the section indicate that it is to be applied in circumstances other than those named in the section itself is without merit. The commentary cited by Thomas, U.S.S.G. Sec. 2K2.1, comment. (backg'd.) (Nov.1989); id., comment. (n. 2), merely provides guidance on the factors a court should consider in determining whether the firearm or ammunition was possessed for one of the two listed purposes.

Thomas apparently appeals the district court's failure to depart downward from the applicable guidelines range. The district court's holding that there was no basis for discretionary downward departure is not reviewable. United States v. Morales, 898 F.2d 99, 102 (9th Cir. 1990).

AFFIRMED.