U.S. v. Warner, 94-4113

• Citation: 43 F.3d 1335
• Decision Date: 19 December 1994
• Docket Number: No. 94-4113,94-4113
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jesse WARNER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1335

43 F.3d 1335

UNITED STATES of America, Plaintiff-Appellant, v. Jesse WARNER, Defendant-Appellee.

No. 94-4113.

United States Court of Appeals Tenth Circuit.

Dec. 19, 1994.

Wayne T. Dance, Asst. U.S. Atty. (Scott M. Matheson, Jr., U.S. Atty., and Mark K. Vincent, Sp. Asst. U.S. Atty., with him on the briefs), Salt Lake City, UT, for plaintiff-appellant.

Joseph C. Fratto, Jr., Salt Lake City, UT, for defendant-appellee.

Before SEYMOUR, Chief Circuit Judge; MOORE, Circuit Judge; and SAFFELS, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

This is the second time we have considered this case on an appeal from sentencing. After the first remand, the district court held a downward departure was still warranted and sentenced accordingly. Concluding there are no proper grounds for departure, we once again reverse and remand for resentencing within the sentencing guidelines.

Jesse Warner was convicted of the unlawful possession of a machine gun. 18 U.S.C. Sec. 922(o). Originally, the district court sentenced Mr. Warner to six months' confinement at a halfway house, six months' home confinement followed by three years' supervised release, and one hundred hours of community service. In imposing this sentence, the district court departed downward from the sentencing guidelines on the basis of the "sporting and collection" exception found at U.S.S.G. Sec. 2K2.1(b)(2). We reversed and remanded for resentencing holding machine guns are excluded from this exception. United States v. Warner, 5 F.3d 1378 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1090, 127 L.Ed.2d 405 (1994).

On resentencing, the district court reimposed the original sentence, this time departing from the guidelines based on the "lesser harms" provision of U.S.S.G. Sec. 5K2.11, which reads:

Sometimes, a defendant may commit a crime in order to avoid a perceived greater harm. In such instances, a reduced sentence may be appropriate, provided that the circumstances significantly diminish society's interest in punishing the conduct, for example, in the case of a mercy killing. Where the interest in punishment or deterrence is not reduced, a reduction in sentence is not warranted. For example, providing defense secrets to a hostile power should receive no lesser punishment simply because the defendant believed that the government policies were misdirected.

In other instances, conduct may not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue. For example, where a war veteran possessed a machine gun or grenade as a trophy, or a school teacher possessed controlled substances for display in a drug education program, a reduced sentence might be warranted.

To support its sentencing decision, the district court found The court in reviewing all of the facts and circumstances from the totality of the circumstances here including the fact that the gun was not loaded, that it was not fully converted to a machine gun at the time, that any threat was not with reference to the brandishing of a weapon or indeed one that could have been fulfilled because it was an unshootable gun, and there was doubts as to whether the machine gun had actually been converted, and in view of the service of the term as it has been done and all of the other facts and circumstances including basic fairness and the abhorrence of the court to turn around what has been a successfully completed program for rehabilitation in the community and then go backwards into a term of home confinement or particularly I guess perhaps it would have to be community service, I'm going to reiterate the departure of, from level 16 to level 12 and a guidelines range of 10 to 16 months.

The government appeals Mr. Warner's sentence on two grounds. First, it asserts the district court erred in granting downward departure based on U.S.S.G. Sec. 5K2.11. Second, it contends, lacking the authority to do so, the district court improperly considered Mr. Warner's post-sentencing conduct at resentencing.

I.

The government argues the circumstances cited by the district court are insufficient to justify downward departure and the facts relied upon by the court were clearly erroneous. The government disputes the court's findings the gun had not been fully converted to an automatic weapon and Mr. Warner's threat was not with reference to the brandishing of a weapon. Indeed, our reexamination of the record discloses the evidence at trial established the gun had been fully converted to automatic mode when it was seized. Government agents test-fired the gun and found it operational as a machine gun. Further, the only weapon that Mr. Warner could have been referring to in his threat was the one found in his car. ¹

Mr. Warner argues the district court correctly concluded his situation did not fall within the category of evil which the statute seeks to prevent. In support, he cites United States v. White Buffalo, 10 F.3d 575 (8th Cir.1993), which, he contends, stands for the general proposition if "the basic conduct in a particular case did not cause or intend the harm sought to be prevented by the statute then a departure may be warranted." Ignoring the text in our prior opinion, Mr. Warner reasserts he modified the gun for innocent reasons and not to engage in illegal activity. He reiterates the claim he made at initial sentencing that he is a simple gun enthusiast and a machinist who wanted the professional challenge that such a modification represented. He thus allies himself with the innocent motive the court held dispositive in White Buffalo.

We review the district court's decision to depart downward from the sentencing guidelines using a three-step analysis. First, the court reviews de novo whether the circumstances cited by the district court justify a departure. Second, factual findings are reviewed under the clearly erroneous standard. Third, if the departure is justified, the court reviews the degree of departure to determine if it is reasonable. Warner, 5 F.3d at 1381; United States v. Pena, 930 F.2d 1486, 1494 (10th Cir.1991).

Given the record in this case, the district court erred in holding that downward departure was justified. First, the court's findings are clearly erroneous. In particular, the court's finding the gun was "unshootable" is inconsistent with the trial testimony. ² Moreover, the court's expression of doubt the gun had been fully converted is contrary to the expert testimony and ignores Mr. Warner's own admission made at trial that he had altered the weapon. It was overlooked that an essential part of defendant's avoidance argument at the first sentencing was that Mr. Warner made the conversion but with innocent intent. Warner, 5 F.3d at 1380.

Nonetheless, we do not decide this case solely on the narrow issue that the court made erroneous factual findings because we believe the district court's entire rationale for departure was wrong. First, White Buffalo is easily distinguishable from this case. In White Buffalo, the defendant was convicted of possession of a sawed-off .22 caliber rifle. Mr. White Buffalo testified at his sentencing hearing that he used the gun to shoot skunks, weasels, and raccoons that killed his chickens. He had sawed off the barrel of his rifle because these predators often hid in crawl spaces underneath shacks next to his house, and the shortened barrel made hunting them significantly easier. As described by the Eighth Circuit, at sentencing the district court found:

White Buffalo did not use the gun in a violent or offensive way and that White Buffalo's actions were not the kind of misconduct and danger sought to be prevented by the gun statute. The district court observed that although White Buffalo had the gun in his van, the gun was not loaded and there was no ammunition in the van or in White Buffalo's possession. The district court also noted that there was no evidence that White Buffalo ever brandished the gun or used it in a threatening way, White Buffalo had no criminal record, and White Buffalo's use of the weapon to shoot animals did not pose any quantifiable risk of accidental harm to others because he lived in a remote area of the reservation.

10 F.3d at 576. Mr. Warner's possession of the machine gun, along with three loaded magazines, and his threat to use the gun are all markedly different. Mr. Warner's claimed innocent rationale for possessing the machine gun is simply not objectively reasonable.

Indeed, as we previously noted, if the gun had been found in his machinist's shop, in a workroom at home, or even without ammunition in the trunk of his car, his innocent explanation would have had some credibility. However, it is patent the facts in this case do not objectively compare to those relied upon by the court in White Buffalo to find Sec. 5K2.11 germane.

The lesser harms rationale for departing from the sentencing guidelines should be interpreted narrowly. This general principle holds particular force in cases like this one. The proscription of the possession of machine guns evinces a congressional purpose to prevent the circulation of military-style weapons in the general population. Although the Sentencing Commission suggests a military veteran's innocent possession of a trophy machine gun at home may warrant special dispensation in sentencing, that suggestion cannot be extended to someone who was in possession of a machine gun and ammunition in his car on an interstate highway.

There is simply nothing in this scenario which mitigates the commission of the offense for which Mr. Warner was convicted. Indeed, because of the public interest in keeping machine guns off our streets and highways, the limitation to reducing sentences set forth in Sec. 5K2.11 prevails. In terms of the common interest of the populace, possession of a machine gun on a public highway is the functional equivalent of providing defense secrets to a hostile power. It is simply not to be tolerated,...