U.S. v. Bayles

• Decision Date: 15 November 2002
• Docket Number: No. 01-4092.,No. 01-4097.,01-4092.,01-4097.
• Parties: UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Randee Lee BAYLES, Defendant-Appellee/Cross-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1302

310 F.3d 1302

UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Randee Lee BAYLES, Defendant-Appellee/Cross-Appellant.

No. 01-4092.

No. 01-4097.

United States Court of Appeals, Tenth Circuit.

November 15, 2002.

Brett Tolman, Assistant United States Attorney, (Paul M. Warner, United States Attorney, and Diana Hagen, Assistant United States Attorney, on the briefs), District of Utah, for the Plaintiff-Appellant/Cross-Appellee.

Ronald J. Yengich, (Bradley P. Rich and Vanessa Ramos-Smith, on the briefs), of Yengich, Rich, and Xaiz, Salt Lake City, UT, for the Defendant-Appellee/Cross-Appellant.

Before HENRY, PORFILIO, and ANDERSON, Circuit Judges.

HENRY, Circuit Judge.

Randee Lee Bayles pleaded guilty to possessing a firearm while subject to a domestic violence protective order, in violation of 18 U.S.C. § 922(g)(8).¹ Because Mr. Bayles was unaware of that statute, the district court granted a seven-level downward departure and imposed a sentence of twenty-four months' probation.

The government now appeals the downward departure. In a cross-appeal, Mr. Bayles argues that his conviction violates the Second Amendment and the Commerce Clause of the United States Constitution. He further contends that the district court made an erroneous factual finding by (1) rejecting his contention that the guns he possessed were used solely for sporting purposes or lawful collection and therefore (2) denying his request for a reduction in the offense level.

We reject Mr. Bayles's challenges to his convictions and sentences. However, as to the government's appeal, we conclude that the district court abused its discretion in granting a downward departure. Because the district court's downward departure is not supported by this record, we vacate Mr. Bayles sentence and remand for resentencing.

BACKGROUND

Mr. Bayles's federal conviction arises out of an August 10, 1999, protective order issued by the District Court for San Juan County, Utah, and affirmed by the Utah Court of Appeals and the Utah Supreme Court. See Bailey v. Bayles, 18 P.3d 1129 (Utah Ct.App.2001), aff'd, 52 P.3d 1158 (Utah 2002). The order is set forth on a preprinted form that contains standard language. See Aplt's App. at 72-76 (Protective Order, dated Aug. 10.1999). The issuing judge initialed particular sections that applied to Mr. Bayles.

The protective order imposes the following conditions on Mr. Bayles: (1) it restrains him from "attempting, committing, or threatening to commit abuse or domestic violence" against his ex-wife (Jeroldene Bailey) or her current husband; (2) it prohibits him from "directly or indirectly contacting, harassing, telephoning, or otherwise communicating with [Ms. Bailey];" and (3) it directs him to stay away from the residence, places of employment, and schools of Ms. Bailey and her family. See id. at 72-73.

The protective order also contains a preprinted paragraph that sets forth the following finding: "The Court having found that Respondent's use or possession of a weapon may pose a serious threat of harm to Petitioner, the Respondent is prohibited from purchasing, using, or possessing a firearm and/or the following weapon(s)." Id. at 73. That paragraph is not initialed or checked by the issuing judge, and thus the protective order does not itself impose restrictions on Mr. Bayles's possession of firearms. See id.

Following the issuance of the protective order, Mr. Bayles received information from several other sources regarding restrictions on his ownership of firearms. In March 2000, the attorney for Mr. Bayles's ex-wife informed Mr. Bayles' attorney (Matthew Hilton) that "[Mr.] Bayles's possession of firearms while subject to a protective order was a violation of federal law." See id. at 106 (affidavit of Rosalie Reilly). In response to Ms. Reilly's communication, Mr. Hilton expressed some doubts about her reading of federal law:

Prior to the time of the filing of the appeal [of the August 10, 1999 protective order], I discussed the nature of federal firearms law with opposing counsel for Jeroldene Bailey. After reviewing the annotated statutory laws cited by opposing counsel, since there was no criminal conviction, it was not clear to me that [Mr.] Bayles could not possess a firearm when the original temporary order and permanent order did not restrict his possession or ownership of a firearm.

Based on the foregoing, and knowing of my disagreement with counsel's statement of Utah law regarding stalking, I called Randee Bayles and advised him over the phone of (1) the position of his ex-wife's counsel, (2) that federal laws may require him to not possess firearms, (3) that out of an abundance of caution I would recommend that he do so, but (4) not being an expert in criminal law or federal laws of this nature, I was not able to provide a definitive opinion on the matter based on either experience or a more detailed examination of the statutes and related matters.

Id. at 129-130 (affidavit of Matthew Hilton) (emphasis added).

In July 2000, an FBI agent received information that Mr. Bayles possessed handguns, shotguns, rifles, sawed-off shotguns, and fully automatic weapons. Based on that information, federal agents began an undercover investigation. On August 9, 2000, Mr. Bayles admitted to an undercover agent that he owned "approximately one hundred rifles and between seventy-five and eighty-five handguns." Id. at 12. According to the agent:

[Mr.] Bayles also admitted that due to an order that his ex-wife had obtained from the courts, he had moved most of his guns to a location away from his house, but that he still had a few guns in his house that he could use for hunting. [Mr.] Bayles also stated that he keeps two handguns in his truck.

Throughout the meeting, Bayles continued to provide information about firearms and how to use them. Just prior to the conclusion of the meeting, while discussing which types of guns are suitable for hunting [Mr.] Bayles retrieved two loaded handguns fro[m] his Ford truck. [Mr.] Bayles retrieved a Colt, Python .357 magnum revolver and a Beretta 9 mm. pistol.

Id.

On August 23, 2000, the agent conducted a second undercover meeting with Mr. Bayles. In response to the agent's queries about obtaining weapons, Mr. Bayles explained that he "got rid of [his] guns ... [b]ecause of the ex parte [protective order] and stuff...." Id. at 223. Mr. Bayles added, "I don't think I'm illegal. My attorney [d]oesn't think I'm illegal but he says that somebody [might] misinterpret[] the law and decide[] they want to [c]ome after my weapons...." Id.

Agents arrested Mr. Bayles shortly after he made that statement. On September 13, 2000, a grand jury returned an indictment charging Mr. Bayles with one count of possessing firearms while subject to a protective order, a violation of 18 U.S.C. § 922(g)(8). The indictment alleged that between August 9 and August 23, 2000, Mr. Bayles possessed nineteen firearms (fifteen rifles, two shotguns, a revolver, and a pistol) and that he did so while subject to the August 10, 1999, protective order.

Mr. Bayles filed a motion to dismiss the indictment on the grounds that § 922(g)(8) violated his constitutional rights. In particular, he argued that the statute deprived him of his Second Amendment right to keep and bear arms and that application of the statute exceeded Congress's power under the Commerce Clause because his possession of the firearms did not substantially affect interstate commerce. After the district court denied his motion to dismiss, see United States v. Bayles, 151 F.Supp.2d 1318 (D.Utah 2000), Mr. Bayles pleaded guilty to the indictment on the condition that he could appeal that ruling.

Based on an offense level of fifteen and a criminal history category of I, the presentence report found the Guideline range to be eighteen to twenty-four months. See Aplt's Sealed App. at 12, ¶ 42. The report did note the possibility of a downward departure based upon aberrant behavior.

In response, Mr. Bayles argued that the firearms that he possessed were "solely for lawful sporting purposes or collection," see USSG 2K2.1(b)(2) and that, as a result, the court should reduce the offense level to six. Mr. Bayles further contended that the district court should depart downward because the state court protective order did not expressly prohibit the possession of firearms.

The district court denied Mr. Bayles's request for a reduction in the offense level based on his alleged use of the weapons for sporting or collection purposes. However, the court ruled in favor of Mr. Bayles on his motion for a downward departure, stating:

I disagree with the government both on aberrant behavior and on outside the heartland. I think it's a very unusual case where you get bad legal advice and you also—I know at some point he started to know things, but you get bad legal advice. The box isn't checked. It's really an unclear kind of thing. I'm not here to tell State Judges how to do their jobs, but people ought to ... have every chance to know, as soon as they can, about what they can and can't do. So I think those are somewhat unique circumstances.

Aplt's App. at 252-53. The court added that "this seems to me to meet all the criteria of aberrant behavior to me under 5K2.20 and I also think a departure is warranted under 5K2.0." Id. at 253. As a result the court departed downward to an offense level of eight and imposed a sentence of twenty-four months probation, a fine of $1,000, and a special assessment of $100.

DISCUSSION

Because two of the issues Mr. Bayles raises in his cross-appeal challenge the validity of his conviction, we begin with those contentions. Concluding that Mr. Bayles's § 922(g)(8) conviction is valid, we then proceed to the issues surrounding Mr. Bayles's sentence.

I. Alleged Second Amendment Violation

Mr. Bayles argues that § 922(g)(8) violates the Second Amendment because it infringes his right to bear arms. As a result,...