U.S.A v. Mojica

• Decision Date: 30 May 2000
• Docket Number: No. 99-4131,99-4131
• Citation: 214 F.3d 1169
• Parties: (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EFREN RIOS MOJICA, Defendant-Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1169

214 F.3d 1169 (10th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EFREN RIOS MOJICA, Defendant-Appellant.

No. 99-4131

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

May 30, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH(D.C. No. 98-CR-596-W)

Submitted on the briefs:

Paul M. Warner, United States Attorney, and Barbara Bearnson, Assistant United States Attorney, Salt Lake City, Utah, for Plaintiff-Appellee.

Robert L. Booker and Edward W. McBride, Jr., of Booker & Associates, Salt Lake City, Utah, for Defendant-Appellant.

Before KELLY, McKAY, and HENRY, Circuit Judges.

McKAY, Circuit Judge.

Efren Rios Mojica appeals from a twenty-seven month sentence imposed for violation of 18 U.S.C. § 922(g)(9). He contends that the court erred in holding as a matter of law that § 2K2.1(b)(2) of the United States Sentencing Guidelines Manual [hereinafter "U.S.S.G."] does not apply to his crime. Our jurisdiction arises under 28 U.S.C. § 1291, and we reverse.¹

BACKGROUND

Although the government contested Mr. Mojica's version of the circumstances surrounding his conviction, the district court assumed the facts submitted by Mr. Mojica to be true in arriving at its challenged legal conclusion. See R. Vol. II (Tr. of June 21, 1999 sentencing hr'g at 4-6, 15 [hereinafter "Tr."]). Therefore, the underlying factual predicates for Mr. Mojica's sentence are undisputed for purposes of our review. Mr. Mojica was convicted of several crimes associated with a domestic violence charge in the Utah state courts in February 1998. After those convictions, he lived with Robert and Naomi Rios, his brother and niece. In October 1998, Mr. Rios brought home a shotgun he had borrowed to go turkey hunting. On November 1, 1998, Mr. Mojica had an argument with Ms. Rios. In anger, she threatened to turn him in to the police for violation of probation in the domestic violence case because the shotgun was in the house. Mr. Rios was not at home, so Mr. Mojica decided to immediately return the gun to its owner, whom he knew. The police arrested Mr. Mojica in the parking lot of his apartment complex while he was carrying the unloaded shotgun and fifteen rounds of ammunition in the carrying case.

APPLICABLE LAW

In September 1996, § 922(g) was amended to make individuals who had committed certain misdemeanor crimes of domestic violence subject to the restrictions on possession of firearms provided in the Gun Control Act of 1968. See Omnibus Appropriations Act, Pub. L. No. 104-208, 1996 U.S.S.C.A.N. (110 Stat.) 3009-371 to 3009-372. Mr. Mojica pleaded guilty to possession of a firearm by a restricted person under § 922(g)(9). The applicable Sentencing Guidelines were amended effective November 1, 1998, to include this new class of prohibited persons. See U.S.S.G. Supp. to App. C, Amend. 578; U.S.S.G. § 2K2.1, comment. (n.6) (defining "prohibited person" as including those defendants convicted in any court of a misdemeanor domestic violence crime). Mr. Mojica was sentenced at base offense level 12 pursuant to a two-point reduction for acceptance of responsibility. See U.S.S.G. § 2K2.1(a)(6) (providing for application of base level offense 14 for defendant who is a "prohibited person"). The court denied Mr. Mojica's request to apply § 2K2.1(b)(2), which provides for a reduction to base offense level 6 in those situations in which the crime of possession is associated solely with lawful sporting or collection purposes. We review the district court's interpretation and application of the Sentencing Guidelines de novo. See United States v. Henry, 164 F.3d 1304, 1310 (10th Cir.), cert. denied, 119 S. Ct. 2381 (1999).

DISCUSSION

Section 2K2.1(b)(2) provides:

If 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 determined above to level 6.

Mr. Mojica argued unsuccessfully that he was entitled to a reduction in base offense level because the shotgun was obtained solely for lawful hunting purposes and he had not used the shotgun in any other manner or for any other purpose. The district court noted that there was no claim "that the defendant personally and independent of his brother had any interest in using the gun for sporting purposes, [and] that the sole intent of the defendant in returning the gun was simply to transport the gun out of the house and over to [its owner] . . . because of the threats of his niece . . . ." Tr. at 6. Because Mr. Mojica "personally was not going to use the gun either for sporting or collection purposes," the court determined as a matter of law that Mr. Mojica was not entitled to the reduction in sentence provided by § 2K2.1(b)(2). Id. at 7.

The district court thus limited application of the statutory reduction to those situations in which the defendant possesses the firearm only for his own lawful sporting or collection purposes by inserting "defendant's" before "lawful sporting or collection purposes" in the guideline. The narrow question before this court is whether, under the facts that: (1) Mr. Mojica's constructive possession began with his brother obtaining and using the shotgun for lawful sporting purposes; (2) Mr. Mojica never used or intended to use the shotgun for any purpose; and (3) Mr. Mojica's only actual possession of the firearm was in attempting to take it back to its owner, may the court review the totality of the circumstances in determining whether to apply § 2K2.1(b)(2), or is the court barred from applying § 2K2.1(b)(2) by the sole fact that Mr. Mojica never intended to use the shotgun for sporting purposes.

The guidelines, as criminal statutes, are "given their fair meaning in accord with the manifest intent of the lawmakers," United States v. Moore, 423 U.S. 122, 145 (1975) (quotation omitted), without adding or subtracting words from the statutory language, see 62 Cases, More or Less, Each Containing Six Jars of Jam v. United States, 340 U.S. 593, 596 (1951). We first observe that the language of § 2K2.1(b)(2) does not expressly limit reduction of a defendant's base level offense to those situations in which possession or transport is related only to the defendant's own lawful sporting purposes. Therefore, we endeavor to determine the Sentencing Commission's manifest intent in promulgating the guideline.

The intent of the Sentencing Commission is demonstrated in part through its commentary. District courts are obliged to follow the explanatory application notes unless they are plainly erroneous, inconsistent with the guidelines, or violative of the Constitution or a federal statute. See Stinson v. United States, 508 U.S. 36, 42-43 (1993). The relevant application note provides that

"lawful sporting purposes or collection" [are] determined by the surrounding circumstances. . . . Relevant surrounding circumstances include the number and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of the defendant's criminal history . . . and the extent to which possession was restricted by local law.

U.S.S.G. § 2K2.1, comment. (n.10). Although this note does not clarify whose sporting purpose is relevant to the inquiry, it also does not expressly require that the defendant have transported or possessed the firearm for his own sporting purposes. It also does not limit "[r]elevant surrounding circumstances" to only those facts involving the defendant. Instead, the application note requires the court to examine the totality of the surrounding circumstances, including the specific circumstances of possession and actual use, rather than relying on a single factor to preclude application of the guideline.

The purpose of the "specific offense characteristics" guidelines in § 2K2.1(b) is to make punishment proportional to the specific illegal conduct of a particular defendant, i.e. to punish more benign behavior less drastically on the basis of the defendant's "real offense elements" or actual conduct as opposed to only the "charged offense elements." See U.S.S.G. Ch. 1, Pt. A (introduction and general application principles). The background notes contained in earlier versions of this particular guideline explained that, before the guidelines were codified, sentencing variations for gun possession crimes were attributable to the wide variety of circumstances under which the offenses occurred, and that, "[a]part from the nature of the defendant's criminal history, his actual or intended use of the firearm was probably the most important factor in determining the sentence." U.S.S.G. § 2K2.1, comment. (backg'd) (1990). As the Eleventh Circuit has noted, "[t]his background note shows that the Sentencing Commission recognized that there are a wide variety of circumstances under which the instant offense may occur and considered the mitigating circumstances of intended lawful use in formulating the Guidelines." United States v. Godfrey, 22 F.3d 1048, 1055 n.8 (11th Cir. 1994).

In providing for adjustments based on the specific offense characteristics, the Commission acted consistently with the principle that "[i]t has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and punishment to ensue." Koon v. United States, 518 U.S. 81, 113 (1996). Thus, "the relevant guideline clearly intended to punish innocent possession and use of a firearm less severely, and improper use more severely." United States v. Jones, 158 F.3d 492, 501 (10th Cir. 1998). We do not translate this broad purpose to mean, however, that § 2K2.1(b)(2) is a "catchall" guideline applicable to all innocent purposes for possessing a firearm. Clearly, in order to fall...