918 F.2d 925 (11th Cir. 1990), 89-7937, United States v. Wyckoff

Docket Nº:89-7937
Citation:918 F.2d 925
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Willie Frank WYCKOFF, Defendant-Appellant.
Case Date:December 07, 1990
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 925

918 F.2d 925 (11th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,

v.

Willie Frank WYCKOFF, Defendant-Appellant.

No. 89-7937

United States Court of Appeals, Eleventh Circuit

December 7, 1990

Page 926

        Jacob Walker, III, Opelika, Ala., for defendant-appellant.

        James Eldon Wilson, U.S. Atty., Charysse L. Alexander, Kent B. Brunson, Asst. U.S. Attys., Andrew W. Redd, State of Ala., Dept. of Corrections, Harry A. Lyles, Montgomery, Ala., for plaintiff-appellee.

        Appeal from the United States District Court for the Middle District of Alabama.

        Before TJOFLAT, Chief Judge, JOHNSON and CLARK, Circuit Judges.

        PER CURIAM:

        Appellant Wyckoff brings this appeal pursuant to 18 U.S.C. Secs. 3742(a)(1) and 3742(a)(2), contending that the district court incorrectly applied the Sentencing Guidelines and imposed a sentence which fails to meet the criteria of 18 U.S.C. Sec. 3553(a). Specifically, appellant contends that the district court erred (1) by scoring the criminal history factors under U.S.S.G. Secs. 4A1.1(a) and 4A1.1(e) since the prior felony conviction is included in his base offense level for unlawful possession of a firearm by a convicted felon under Sec. 2K2.1; and (2) by declining to reduce his offense level by four pursuant to Sec. 2K2.1(b)(2) for possession of a firearm solely for sport or recreation. We affirm.

        FACTS

        On August 13, 1988, officers with the Tallapoosa County Sheriff's Department responded to a disturbance call. When the officers arrived on the scene, they observed appellant with a high powered hunting rifle in his hand. The officers asked appellant to relinquish the rifle and appellant refused. Three officers then wrestled the rifle from him. The rifle was loaded with six rounds; a box in appellant's vehicle contained another fourteen rounds. On July 26, 1989, appellant pled guilty to a one count indictment for violation of 18 U.S.C. Sec. 922(g)(1). 1 Appellant's qualifying sentence of four years' imprisonment arose from a 1984 conviction for receiving stolen property.

        Pursuant to U.S.S.G. Sec. 2K2.1(a), 2 the probation officer calculated his total offense level to be seven: base offense level of nine minus two for acceptance of responsibility. Pursuant to Secs. 4A1.1(a)-(e), the probation officer calculated appellant's criminal history score to be eight: three points for the sentence imposed for receiving stolen property, (Sec. 4A1.1(a)); two points for carrying a concealed weapon, (Sec. 4A1.1(b)); one point for driving under the influence, (Sec. 4A1.1(c)); and two points for committing the instant offense less than two years after release from imprisonment on a sentence counted under Sec. 4A1.1(a) or (b), (Sec. 4A1.1(e)).

        At the sentencing hearing, appellant's attorney explained that immediately prior to the officers' arrival, appellant got into a scuffle with another party who hit appellant on the head with a bat. His attorney argued that appellant fought with the arresting officers because he was disoriented after being hit. Appellant also maintained that the hunting rifle was a gift for his father...

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