United States v. Mason

• Decision Date: 04 September 2012
• Docket Number: Docket No. 11–544.
• Citation: 692 F.3d 178
• Parties: UNITED STATES of America, Appellee, v. Rodney MASON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

692 F.3d 178

UNITED STATES of America, Appellee,

v.Rodney MASON, Defendant–Appellant.

Docket No. 11–544.

United States Court of Appeals, Second Circuit.

Submitted: Jan. 20, 2012.

Decided: Sept. 4, 2012.

Natasha Sen, Assistant Federal Public Defender, Barclay T. Johnson, Research and Writing Attorney, for Michael L. Desautels, Federal Public Defender, District of Vermont, Burlington, VT, for Defendant–Appellant.

Wendy L. Fuller, Gregory L. Waples, Assistant United States Attorneys, for Tristram J. Coffin, United States Attorney for the District of Vermont, Burlington, VT, for Appellee.

Before: WALKER, POOLER, and LIVINGSTON, Circuit Judges.

POOLER, Circuit Judge:

Rodney Mason appeals from a January 4, 2011 judgment of the United States District Court for the District of Vermont (Reiss, C.J.) convicting him, following a guilty plea, of one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sentenced Mason principally to a term of imprisonment of thirty-three months. Mason challenges the sentence, arguing that the district court erred by denying a reduction under the “lawful sporting purposes” provision. Section 2K2.1(b)(2) of the United States Sentencing Guidelines (“U.S.S.G.”), allows a reduction in sentence where a defendant possessed each firearm “solely for lawful sporting purposes or collection.” On appeal, Mason argues principally that the district court misinterpreted Section 2K2.1(b)(2) as requiring Mason to prove that he actually used each firearm for lawful sporting purposes. We write to clarify that the purpose of possession under Section 2K2.1(b)(2) is not synonymous with actual use; the purpose of possession should be determined by considering all relevant surrounding circumstances of possession, including, but not limited to, actual use. SeeU.S.S.G. § 2K2.1(b)(2) & cmt. n.6. We agree with Mason that the district court erred by treating the inquiry into purpose of possession as equivalent to an inquiry into actual use, but we conclude that the error was harmless because the district court would have denied the reduction absent any error. Accordingly, we affirm the judgment of the district court.

BACKGROUND

On July 1, 2010, Mason was indicted on a single count of being a convicted felon who knowingly possessed a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On September 10, 2010, Mason entered a plea of guilty pursuant to a plea agreement in which he stipulated that he was subject to a two-level sentencing enhancement under U.S.S.G. § 2K2.1(b)(1)(A) for having possessed at least three firearms as part of his relevant offense conduct.

In anticipation of sentencing, the United States Probation Office prepared a Presentence Investigation Report (“PSR”). The PSR concluded that Mason had possessed four firearms: a 12 gauge shotgun; a .22 caliber rifle; a 20 gauge shotgun; and a 16 gauge shotgun. The PSR determined that Mason was ineligible for the “lawful sporting purposes” reduction because Masons's prior felony conviction of unlawful restraint in the second degree, seeVt. Stat. Ann. tit. 13, § 2406(a)(1), was a “crime of violence” under the Guidelines, seeU.S.S.G. § 2K2.1(b)(2) (limiting eligibility for the reduction to defendants not subject to certain offense-level enhancements, including an enhancement for a prior felony conviction of a crime of violence). The probation officer supported granting Mason the reduction, however, if the district court were to determine that the prior conviction did not constitute a “crime of violence.”

Before sentencing, Mason briefed the threshold “crime of violence” issue and submitted evidence to demonstrate that he had possessed the firearms solely for lawful sporting purposes. Mason cited the PSR, which had noted that Mason described having hunted and fished as a child. Mason also provided documentation of his annual Vermont state hunting licenses for 2003 and 2009, and combined hunting and fishing licenses for 2004, 2006, and 2007. In addition, Mason relied on the written statements of several witnesses. John Harris provided a sworn statement addressing the 16 gauge shotgun and .22 caliber rifle. Harris averred that he had lent Mason the shotgun, and that Mason used it to hunt birds. He had seen the rifle in Mason's residence and averred that Mason “probably hunt[ed] rabbits with it.” Harris also stated, however, that he had “never seen [Mason] fire guns,” and that Harris had never hunted with Mason. In unsworn letters to the court, Ticona Masson, Mason's first cousin, described Mason as “an avid gardener and hunter-fisherman,” and Penny Strong wrote that Mason “loved to beagle hunt.” Neither Masson nor Strong identified any firearm that Mason had used or described any instance of having seen Mason hunt. Mason asserted in his sentencing memorandum that “[t]he firearms at issue in this case are all shotguns or rifles typically used for hunting,” but did not provide evidence to support that assertion.

In opposition, the government introduced a federal agent's summary of a statement by witness Amber Lamare, who described having seen Mason at her home with a long gun, and described him as having been drunk, acting “crazy, cursing, and [threatening] to sho[o]t trees and animals.”

At the sentencing hearing on December 30, 2010, Mason did not call any witnesses, but relied on the documents described above, which the court received into evidence. Following oral argument, the district court denied the lawful sporting purposes reduction. The court decided the threshold eligibility issue in Mason's favor, concluding that Mason's prior conviction did not constitute a crime of violence.¹ The court went on to determine that Mason had nonetheless failed to satisfy his burden of demonstrating eligibility for the reduction because there was “insufficient evidence that each of those [four] guns was used for a lawful sporting ... purpose, and that is what is required by the Defendant to establish in order to have the six level reduction.” The district court based this decision on the absence of eyewitness observers of Mason's hunting, Mason's failure to use a gun closet, Mason's statements as reported by witness Lamare, the court's conclusion that Mason possessed more firearms than were necessary for hunting, and the fact that Mason possessed firearms owned by other people. The court reasoned in relevant part:

Mr. Mason has produced evidence of hunting and fishing licenses, but there isn't a single person in the evidence before the Court that indicates that they have been present with Mr. Mason while he has been hunting. I understand letters from the family that are not sworn may indicate that, but the evidence before the Court certainly does not, and ... Mr. Harris states he has never seen Mr. Mason fire a gun and he has never gone hunting with him.

The district court otherwise adopted the factual findings in the PSR. The court imposed a sentence of thirty-three months' imprisonment, the minimum term of imprisonment under the applicable advisory Guidelines range. Had the district court granted Mason the lawful sporting purposes reduction, the applicable Guidelines range would have been nine to fifteen months' imprisonment.

DISCUSSION

I.

We review sentences for procedural and substantive reasonableness under an abuse of discretion standard. United States v. Cavera, 550 F.3d 180, 189 (2d Cir.2008) (en banc). Procedural errors include “treating the Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). In reviewing for substantive reasonableness, we consider “the totality of the circumstances,” id., and reverse “only in exceptional cases where the trial court's decision cannot be located within the range of permissible decisions,” Cavera, 550 F.3d at 189 (internal quotation marks omitted).

Mason bore the burden of proving, by a preponderance of the evidence, that he was entitled to the lawful sporting purposes reduction. See United States v. Halpin, 139 F.3d 310, 311 (2d Cir.1996). “We review the district court's findings of fact [at sentencing] for clear error and accord deference to the court's application of the Guidelines to the facts.” United States v. Kerley, 544 F.3d 172, 179 (2d Cir.2008). “When a defendant challenges the district court's interpretation of a Guidelines provision, we review this interpretation of the Guidelines—just as we would review the interpretation of any law— de novo.” United States v. Hasan, 586 F.3d 161, 168 (2d Cir.2009) (emphasis omitted). Since Mason challenges the district court's interpretation of Section 2K2.1(b)(2), we review that interpretation de novo.

II.

Mason principally argues that the district court erred in requiring that Mason prove that “all of the firearms were used for lawful sporting purposes,” instead of focusing more broadly on the purpose of Mason's possession. Sentencing Tr. 64 (emphasis added). We have construed the lawful sporting purposes reduction in only one prior published decision, Halpin, where we held that possession of a firearm for purposes of self defense does not qualify a defendant for the reduction. 139 F.3d at 311. We have not previously addressed the question presented here, whether a defendant must prove that he has actually used each firearm for a lawful sporting purpose in order to qualify for the reduction.

When construing the Guidelines, “we employ basic rules of statutory construction and give all terms in the Guidelines their ordinary meanings unless there are persuasive reasons not to do so.” United States v. Roberts, 442 F.3d 128, 129 (2d Cir.2006). “[W]e construe the guideline and its commentary together.” United States v. Pedragh, 225 F.3d 240, 245 (2d Cir.2000); see United...