Unpublished Disposition, 912 F.2d 470 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 912 F.2d 470 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Lawrence R. HAGEL, Defendant-Appellant.

No. 89-30305.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 8, 1990.* Decided Aug. 28, 1990.

Before RONEY,**  FARRIS and FERNANDEZ, Circuit Judges.


MEMORANDUM*** 

Lawrence Hagel appeals his sentence, following a guilty plea, for possession of a sawed-off shotgun, in violation of 26 U.S.C. §§ 5861(d), 5845(a) and 5841.

BACKGROUND FACTS

On November 10, 1987, Hagel was arrested for his alleged involvement in a murder conspiracy. A protective sweep of Hagel's home was conducted and during the course of the sweep two handguns, a sawed-off shotgun, a rifle, and a crossbow were seized. The shotgun was unregistered.

Hagel was subsequently indicted for and pled guilty to possession of an unregistered sawed-off shotgun. At the sentencing hearing, he argued that he was entitled to a six-point reduction since he used the gun solely for sport. The court refused to grant Hagel a six-point reduction. Hagel appealed.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 28 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

We review the district court's findings of fact for clear error, and its application of the Guidelines de novo. United States v. Howard, 894 F.2d 1085, 1087 (9th Cir. 1990). The defendant has the burden of proving by a preponderance of the evidence that he is entitled to a reduction in offense levels. Id. at 1090.

DISCUSSION

Hagel contends that he is entitled to a six-point reduction in his offense level pursuant to U.S.S.G. Sec. 2K2.2(b) (3). At the time of sentencing, section 2K2.2(b) (3) provided in pertinent part1: "If the defendant obtained or possessed the firearm solely for sport, recreation or collection, decrease by 6 levels."

The district court found that Hagel was not entitled to the reduction in offense level because he did not meet his burden of showing by a preponderance of the evidence that he used the shotgun solely for sport or recreation. Hagel contends that the court erred in so finding.

Application Note 1 to section 2K2.2 outlines several factors to be considered in determining whether a firearm was intended for lawful use. They are:

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 is restricted by local law.

Here the shotgun was one-half inch shorter than the legal limit. However, Hagel presented a great deal of evidence and the court specifically found that sawed-off shotguns are commonly used in Alaska for protection against bears. Hagel also presented evidence that he held a valid "Class 5-A" subsistence fishing license and had held one for three years. In addition, he presented evidence in the form of his own sworn statement that the shotgun had been used "exclusively for bear protection when [he was] hiking or fishing in the wilderness." Finally, his father-in-law testified about an incident in 1983 where Hagel and his wife had been threatened by a bear while they were fishing.2

Nevertheless, Hagel's evidence was properly held insufficient to sustain his burden. The shotgun was found loaded, with ammunition in the chamber, in Hagel's bedroom, at nine o'clock on a Sunday morning, circumstances that might properly be deemed inconsistent with an allegation that the gun is being used solely for protection against bears. Hagel presented no evidence of how often the gun was used in hunting or when the gun had in fact been used for protection against bears. The district court properly found that Hagel failed to prove, by a preponderance of the evidence, that the gun was used solely for sport or recreation.

AFFIRMED.

 *

The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

Honorable Paul H. Roney, Senior Circuit Judge, United States Court of Appeals for the Eleventh Circuit, sitting by designation

 ***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3