Unpublished Disposition, 940 F.2d 1536 (9th Cir. 1990)

MEMORANDUM^** 

The United States appeals defendant Donald S. Bullard's 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). Bullard was arrested on April 7, 1990, pled guilty to the offense on September 7, 1990, and was sentenced on November 6, 1990.

The district court allowed a downward adjustment in Bullard's offense level from level 16 to level 6 pursuant to U.S.S.G. Sec. 2K2.1(b) (1) (Guideline Manual November 1, 1989) which allowed such a reduction if the defendant obtained or possessed the firearm solely for lawful sporting purposes. The district court sentenced Bullard to an 18 month term of imprisonment.

We first note that the sentencing guideline applicable to Bullard's offense was amended effective November 1, 1990. The amended guideline increased the base offense level for the offense from 16 to 18. The amended guideline also made Bullard ineligible for the sporting purpose reduction by excepting defendants in possession of firearms described in 26 U.S.C. § 5845(a) from the reduction. Therefore, under the amended version of the guidelines, Bullard's offense level would have been 18 instead of 6.

Ordinarily, a defendant is to be punished according to the guidelines in effect at the time of sentencing. See 18 U.S.C. § 3553(a) (4). However, a criminal law violates the ex post facto clause of the United States Constitution (Art. I, Sec. 9, cl. 3) if it applies retrospectively and disadvantages the defendant affected by it. Miller v. Florida, 482 U.S. 423 (1986). Where the sentencing guidelines have been amended so that a defendant is subject to an enhancement of his sentence under the new guidleine it is an ex post facto violation to sentence him under the amended version. See United States v. Sweeten, 933 F.2d 765, 772 (9th Cir. 1991). Therefore the district court properly sentenced Bullard under the version of the guidelines in effect when he committed the offense.

A defendant who seeks a downward adjustment in his base offense level under section 2K2.1(b) (2) must prove by a preponderance of the evidence that he is entitled to the reduction. United States v. Uzelac, 921 F.2d 204, 205 (9th Cir. 1990). The district court found that Bullard had proved this fact by a preponderance of the evidence. This finding is reviewed for clear error. Id. at 206.

The district court reviewed the testimonial and documentary evidence it relied on in finding that Bullard obtained the gun in order to protect himself from grizzly bears. Bullard testified on his own behalf and had in his possession at the time of arrest various written materials concerning his camping needs and the danger of bears which corroborated his testimony. In light of this evidence we cannot say that the district court erred in finding that Bullard proved that he was entitled to the reduction in his offense level by a preponderance of the evidence.

AFFIRMED.