U.S. v. Morrison

Decision Date12 January 1993
Docket NumberNo. 92-5033,92-5033
Citation983 F.2d 730
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Dana Ray MORRISON, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

John MacCoon, Asst. U.S. Atty. (argued and briefed), Jerry G. Cunningham, U.S. Atty., Chattanooga, TN, for plaintiff-appellee.

R. Dee Hobbs, Chattanooga, TN (argued and briefed), for defendant-appellant.

Before: KEITH, KENNEDY, and JONES, Circuit Judges.

NATHANIEL R. JONES, Circuit Judge.

In this case, Defendant-Appellant Dana Ray Morrison pled guilty to receipt and possession of a firearm by a felon. Sentenced under the federal guidelines, he appeals the disallowance of two mitigating factors, possession of a firearm solely for sport and acceptance of responsibility, that would have reduced the sentence imposed. Though the district court's finding that the firearm was not used solely for sporting purposes is not clearly erroneous, we vacate the sentence and remand for resentencing since the finding that Morrison had not accepted responsibility was based, at least in part, on inappropriate considerations.

I. The Case

Morrison was convicted on August 30, 1988, of two felonies. On November 30, 1990, he was found in possession of a loaded, six-inch, Rossi .357 Magnum revolver that he had purchased on September 1, 1990. On May 14, 1991, he was indicted for receipt and possession of a firearm by a felon in contravention of 18 U.S.C. § 922(g)(1) (1988).

On July 19, 1991, Defendant entered a plea agreement with the government. The United States District Court for the Eastern District of Tennessee accepted this agreement on December 16, 1991, at which time it imposed a sentence of twenty-two months, followed by three years of supervised release, and a fine of $1,800. The prison sentence was within the range established by the United States Sentencing Commission in its Guidelines Manual (Nov. 1991) [hereinafter Guidelines ].

Defendant sought a reduction in sentence on the basis that: (1) the firearm was used solely for lawful sporting purposes, see Guidelines § 2K2.1(b)(2); and (2) he had accepted responsibility for his actions, see Guidelines § 3E1.1. The court rejected Defendant's arguments. Defendant timely appealed, claiming that the court should have granted him the reductions.

II. Standard of Review
A. Generally

Appellate review of sentences under the federal sentencing guidelines is generally governed by 18 U.S.C. § 3742 (1988):

(e) Consideration.--Upon review of the record, the court of appeals shall determine whether the sentence--

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application of the sentencing guidelines (3) is outside the applicable guideline range, and is unreasonable ...

. . . . .

The court of appeals shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous and shall give due deference to the district court's application of the guidelines to the facts.

B. The "Solely for Sporting Purposes" Issue

Determination of whether the .357 Magnum in this case was used solely for sporting purposes is a question of fact and as such is to be reviewed under the clearly erroneous standard. See United States v. Lorenzo, 951 F.2d 350 (6th Cir.1991).

C. The Acceptance of Responsibility Issue

Regarding acceptance of responsibility, the standard of review is discussed in Application Note Five to Guidelines § 3E1.1(a):

The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review.

See United States v. Wilson, 878 F.2d 921, 923 (6th Cir.1989) (accepting and applying this standard). Generally a question of fact, the trial court's determination of whether a defendant has accepted responsibility normally enjoys the protection of the clearly erroneous standard, and will not be overturned unless it is without foundation. See id. (citing and accepting relevant portion of United States v. Thomas, 870 F.2d 174, 176 (5th Cir.1989)); United States v. Lassiter, 929 F.2d 267, 270 (6th Cir.1991); United States v. Christoph, 904 F.2d 1036, 1041 (6th Cir.1990), cert. denied, 498 U.S. 1041, 111 S.Ct. 713, 112 L.Ed.2d 702 (1991).

Questions of law, however, such as the appropriate application of this guideline to a particular set of facts, are subject to de novo review. See United States v. Wilson, 920 F.2d 1290, 1294 (6th Cir.1990); United States v. Brewer, 899 F.2d 503, 506 (6th Cir.1990).

III. The "Solely for Sporting Purposes" Reduction

In support of his claim that the firearm was used solely for sporting purposes, Defendant presents the following facts. First, before purchasing the handgun, Defendant allegedly had a discussion with Joe Castle, who issued Defendant a hunting license, concerning what type of handgun could be used for hunting. Defendant claims that he followed Castle's suggestion in purchasing a .357 revolver. Second, he was found in possession of the gun shortly after an alleged hunting trip (during deer hunting season) with Marcus Vanhooser. Defendant asserts that about forty to forty-five minutes after their hunting expedition, they stopped at a car wash to clean the truck owned by Vanhooser. Police stopped the truck because Vanhooser was driving with a suspended license. A pat-down search for weapons of the two individuals revealed the .357 revolver in question on the Defendant's person.

The government counters with the following facts. First, the handgun had no scope. Second, the gun was found loaded in a concealed shoulder holster. Third, according to the police report, the stop of the truck and the arrest of Defendant took place at 10:00 p.m., about four to five hours after nightfall. Fourth, at the time of the arrest, Defendant claimed not to have been hunting, but to have been working on the truck just prior to the arrest. Fifth, no hunting paraphernalia was ever found in the truck or on Defendant's person. Sixth, Vanhooser, the purported hunting companion, was not in possession of any firearm.

The trial court's determination that Defendant did not possess the .357 revolver solely for sporting (hunting) purposes is not clearly erroneous. As a preliminary matter, Defendant has the burden of proving, by a preponderance of the evidence, that a reduction in the guidelines offense level is warranted. United States v. Rodriguez, 896 F.2d 1031, 1033 (6th Cir.1990); United States v. Potter, 956 F.2d 1164 (6th Cir.1992). Thus, the government need not prove that the revolver was used for illegal purposes. Rather, Defendant must prove that the firearm was used solely for sporting purposes.

In making the factual determination whether the gun was used solely for sporting purposes, Application Note 10 under Guidelines § 2K2.1(b)(2) directs the trial court to look to the surrounding circumstances, which include: "the number and type of firearms, the amount and type of ammunition, [and] the location and circumstances of possession and actual use...." In this case, it was reasonable for the trial court to conclude that a Rossi .357 Magnum, without a scope, carried in concealed fashion in a shoulder holster, is not possessed "solely for lawful sporting purposes or collection." Guidelines § 2K2.1(b)(2). Though Defendant maintained he would not have even used the weapon in self-defense, the trial court could properly weigh the credibility of Defendant's contentions against him in reaching the factual conclusion from the surrounding circumstances that the gun was not possessed solely for the purposes of hunting. See 18 U.S.C. § 3742(e) (1988).

Furthermore, it is not clearly erroneous to assume that Defendant was not hunting immediately prior to his arrest. Defendant's credibility on this issue was called into question when he stated that he was arrested about forty to forty-five minutes after he and Vanhooser finished hunting. The police report puts the time of arrest at about 10:00 p.m.--four to five hours after sunset. This fact puts an obvious strain on Defendant's story, unless he possessed an infrared scope, which he did not. It is not unreasonable to believe the police report over and above Defendant's testimony, particularly since no hunting equipment was found in the truck or on Defendant's person, and since Vanhooser, his hunting partner, did not have a gun at the time of the arrest.

The fact that no evidence was presented to refute the allegation that Defendant only used the .357 Magnum for hunting purposes does not upset the trial court's conclusion. In weighing Defendant's credibility against reasonable inferences from the facts presented, the trial court reached a conclusion that is not clearly erroneous.

IV. The Acceptance of Responsibility Reduction

Regarding Defendant's claim that he accepted responsibility for his actions, he asserts that he was candid about his actions, was cooperative with the authorities, and pleaded guilty.

The government responds with the fact that, subsequent to Defendant's release on a $10,000 property bond in this case, he was arrested for attempting to steal a pickup truck. Furthermore, a probation officer found him in constructive possession of other firearms. The weapons were found in plain view at Defendant's mother's house, which was Defendant's residence. Lastly, Defendant tested positive for the controlled substance, benzodiazepine.

The trial court has the responsibility to determine whether a defendant has met his or her burden of showing acceptance of responsibility by a preponderance of the evidence. See Lassiter, 929 F.2d at 270; Rodriguez, 896 F.2d at 1032. The Guidelines list "voluntary termination or withdrawal from criminal conduct or associations" as a factor to be considered in determining whether a defendant...

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