U.S. v. Gresso, 93-2095

Citation24 F.3d 879
Decision Date06 May 1994
Docket NumberNo. 93-2095,93-2095
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Richard GRESSO, Jr., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Andrew B. Baker, Jr., Asst. U.S. Atty. (argued), Dyer, IN, for U.S.

Rita Parsons (argued), McLaughlin, Simpson, Eberhard & Hoke, Goshen, IN, for defendant-appellant.

Before PELL, CUDAHY and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

Richard Gresso pleaded guilty to a one-count information charging him with being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g). Gresso appeals his sentence. He argues that the sentencing court should have applied USSG Sec. 2K2.1(b)(2), which allows a reduction in the base offense level if the firearms were possessed solely for lawful sporting purposes or collection.

I.

When a search warrant was executed at the residence of Richard Gresso, agents of the Bureau of Alcohol, Tobacco & Firearms discovered a loaded Raven .25 caliber pistol in an ankle holster on the top of a bookcase in Gresso's living room. Agents also found explosives, five rifles, one shotgun and 1100 rounds of ammunition, mostly .22 caliber. The agents confiscated the firearms and ammunition.

Gresso entered a plea of guilty to a one-count indictment that charged him with being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g). Gresso's prior felony convictions were for theft and illegal storage of explosives; the two convictions resulted from a single arrest in 1974.

Gresso initially stated that the Raven pistol belonged to his father. He claimed that he and his father had been target shooting and that his father had left the pistol in Gresso's truck. Later Gresso explained that the pistol belonged to his father and that his estranged wife, who had moved to Florida three months earlier, had used the pistol for self-protection. He further explained that his wife had left the pistol behind when she moved and that he had forgotten about it. Gresso admitted that he had purchased the rifle without disclosing his status as a convicted felon. He also admitted that he had completed a firearms license in his father's name and subsequently sold approximately twenty-five weapons through his father's business, the Coin & Pinball Gallery. Gresso had signed out one of the shotguns from the store.

The sentencing court determined that the appropriate base offense level was 14 under USSG Sec. 2K2.1(a)(6). The court imposed a two-level increase under Sec. 2K2.1(b)(1)(B) for the number of firearms involved and reduced the offense level by three levels for acceptance of responsibility pursuant to Sec. 3E1.1. With an offense level of 13 and a criminal history category of I, the resulting sentencing range was 12 to 18 months. The court imposed a sentence of twelve months and one day.

Gresso argued for a reduction in the base offense level under Sec. 2K2.1(b)(2) (relating to sporting weapons). The sentencing court refused, finding that the Raven pistol was not a "sporting weapon." The court also found that surrounding circumstances--Gresso's dealing in weapons, an arrest on March 9, 1992, for carrying a handgun without a permit and the amount of ammunition found in his home--did not support a reduction under the sporting exception.

II.

Gresso's sole argument on appeal is that the sentencing court should have reduced the base offense level of his sentence to 6, pursuant to USSG Sec. 2K2.1(b)(2). Gresso believes that he possessed all the weapons solely for lawful purposes and did not unlawfully discharge or use any weapon. Section 2K2.1(b)(2) provides that "[i]f the defendant ... possessed all ammunition and firearms solely for lawful sporting purposes or collection, and did not unlawfully discharge or otherwise unlawfully use such firearms or ammunition, decrease the offense level ... to level 6." USSG Sec. 2K2.1(b)(2) (emphasis added). The defendant bears the burden of proving by a preponderance of the evidence that the firearm was possessed solely for sporting purposes or collection. United States v. Cousens, 942 F.2d 800, 802 (1st Cir.1991); United States v. Wyckoff, 918 F.2d 925, 928 (11th Cir.1990); see United States v. Kissinger, 986 F.2d 1244, 1246 (8th Cir.1993); United States v. Morrison, 983 F.2d 730, 733 (6th Cir.1993). Gresso concedes that he did not possess the pistol for sporting purposes or collection. Nevertheless, he contends that the court should have extended Sec. 2K2.1(b)(2) to apply to his sentence because he possessed the firearms for what he considers the lawful purpose of self-protection and he never unlawfully discharged or used the firearms.

Gresso asserts that, rather than making a determination of whether a firearm was "literally" possessed exclusively for "sporting purposes or collection," the court should examine the circumstances surrounding the possession, as discussed in Application Note 10 1 of Sec. 2K2.1. He argues that "sporting purposes" and "collection" are merely examples of mitigating circumstances deserving of a reduction and urges this court to look beyond the explicit words in the Guidelines and examine the "true basis" for the reduction: lawful and peaceable possession. In effect, Gresso seeks refuge under a provision that allows a reduction for firearms possessed "solely for lawful sporting purposes or collection" while arguing that "the sentencing court's only reason for not allowing the defendant a reduction was that this was not sport, recreation or collection." Appellant's Br. at 9. This is a contradiction that Gresso is unable to dispel.

Although there is no direct Seventh Circuit authority on Sec. 2K2.1(b)(2), other circuits in considering the scope of this provision have demanded strict compliance with the requirements of the guideline. A firearm must have been acquired solely for sporting purposes or collection, and it must be possessed or used solely for sport or collection. The two listed uses, sporting purposes and collection, exhaust this excepted category. The First Circuit has held that, although self-defense is lawful in appropriate circumstances, it is not covered by Sec. 2K2.1(b)(2). Cousens, 942 F.2d at 803. The court suggested that interpreting the Guidelines to allow a self-defense reduction might result in self-defense claims overwhelming the explicit category of sport and collection. Id. In United States v. Wilson, the Sixth Circuit declared that "the only 'intended lawful use' which would support a decrease in the offense level is sport or recreation." 878 F.2d 921, 924 (6th Cir.1989). 2 The...

To continue reading

Request your trial
13 cases
  • U.S. v. Lewitzke
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 12 Mayo 1999
    ...he was charged with possessing was used solely for this purpose. He bears the burden of proof on that point. United States v. Gresso, 24 F.3d 879, 880 (7th Cir.1994). Judge Crabb concluded that the "sporting use" provision did not apply. The judge was not persuaded that two of the weapons s......
  • Woods v. United States
    • United States
    • U.S. District Court — Western District of Virginia
    • 3 Febrero 2012
    ...v. Mazzie, 64 F.3d 664, 1995 WL 478590, at *2 (6th Cir. 1995) (per curiam) (unpublished table decision) (same); United States v. Gresso, 24 F.3d 879, 881 (7th Cir. 1994) (same). Moreover, Woods' argument fails for an even more fundamental reason which Woods himself establishes indirectly in......
  • U.S. v. Miller, 00-5052
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 27 Junio 2000
    ...-- here, the unlawful sale. Each of our sister circuits to have considered the issue have so held. See, e.g., United States v. Gresso, 24 F.3d 879, 881 (7th Cir. 1994) ("The other circuits are in accord: not only must a firearm be of a type that would be acquired for sporting uses or for co......
  • U.S. v. Keller, 03-3789.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 21 Julio 2004
    ...Perez's defense were accepted felon-in-possession laws would as a practical matter not apply to drug dealers. Cf. United States v. Gresso, 24 F.3d 879, 881-82 (7th Cir.1994); United States v. Gometz, 879 F.2d 256, 259-60 (7th The defense of necessity will rarely lie in a felon-in-possession......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT