Unpublished Disposition, 936 F.2d 580 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 936 F.2d 580 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellant,v.William Bruce HAMMOND, Defendant-Appellee.

No. 90-30333.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 1991.Decided June 11, 1991.

Before EUGENE A. WRIGHT, FARRIS and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM* 

The United States appeals William Hammond's sentence under the Guidelines following his guilty plea to possession of a sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d) and 5871. The government contends that the district court erred in downward adjusting Hammond's base offense level pursuant to U.S.S.G. Sec. 2K2.1(b) (1).

We give due regard to the district court's credibility judgments and factual findings. We must "accept the findings of fact of the district court unless they are clearly erroneous." 18 U.S.C. § 3742(e).

Hammond was sentenced under the November 1, 1989, Sentencing Guidelines. Section 2K2.1(b) (1) of the Guidelines provides that the base offense level for illegal possession of a firearm should be reduced to level six if the court finds that the defendant possessed the firearm "solely for lawful sporting purposes." The Application Notes direct the district court to focus on whether the illegally possessed firearm was "intended for lawful use, as determined by the surrounding circumstances." U.S.S.G. Sec. 2K2.1(b) (1), Application Note 2 (Nov. 1, 1989).

Hammond purchased the shotgun while he was living in a cedar log cabin without electricity in the rural woods of Idaho. Hammond indicated to the district court that he purchased the gun for hunting and had used it to kill a number of grouse for eating. There was no evidence that the gun had been used for unlawful purposes. Hammond had never been involved in an offense involving firearms.

While recognizing that a sawed-off shotgun has few legitimate uses, the district court noted that section 2K2.1(b) (1) was not based upon the type of firearm, but on the intended use of the firearm by the defendant. U.S.S.G. Sec. 2K2.1(b) (1), Background (Nov. 1, 1989). The district court concluded that Hammond possessed the gun solely for hunting purposes.

The government first argues on appeal that a firearm must be lawfully possessed for section 2K2.1(b) (1) to apply. However, section 2K2.1(b) (1) comes into consideration only when it has first been established that a defendant unlawfully possessed a firearm. Thus, the government's position would nullify the provision. Section 2K2.1(b) (1) applies if a firearm which is unlawfully possessed is intended to be used solely for lawful purposes.

The government next contends that a sawed-off shotgun has no lawful uses and cannot, as a matter of law, be possessed for sporting purposes under section 2K2.1(b) (1). Although the Sentencing Guidelines now in effect specifically exclude sawed-off shotguns from the group of firearms for which a section 2K2.1(b) (1) reduction is available, no such exclusion existed in the Guidelines under which Hammond was sentenced. Even accepting the government's allegation that a sawed-off shotgun of the type possessed by Hammond is ineffectual for hunting, the question of whether Hammond intended the gun to be used solely for lawful hunting purposes was a question of fact.

Finally, the government argues that Hammond did not meet the burden of proving by a preponderance of the evidence that he was entitled to the section 2K2.1(b) (1) adjustment. See United States v. Avila, 905 F.2d 295, 295 (9th Cir. 1990). Hammond met his burden. There was sufficient evidence for the district court to find that Hammond intended to use the gun solely for hunting purposes.

The district court's finding was not clearly erroneous. The section 2K2.1(b) (1) reduction was proper.

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3