US v. Lovell, Crim. No. 88-20171-TU.

Citation715 F. Supp. 854
Decision Date07 July 1989
Docket NumberCrim. No. 88-20171-TU.
PartiesUNITED STATES of America, Plaintiff, v. Stephen Clyde LOVELL, Defendant.
CourtU.S. District Court — Western District of Tennessee

Timothy R. DiScenza, Asst. U.S. Atty., Memphis, Tenn., for plaintiff.

Leslie I. Ballin, Memphis, Tenn., for defendant.

ORDER ON SENTENCING BURDENS

TURNER, District Judge.

Stephen Clyde Lovell entered a plea of guilty to Count One of the indictment against him in this case which charged that he willfully and knowingly possessed a firearm, that is, a Colt AR-15 .223 caliber machinegun, serial number SP191228, which had not been registered to him in the National Firearms Registration and Transfer Record as required by Chapter 53, Title 26, United States Code, in violation of Title 26, United States Code, §§ 5861(d) and 5871.

A portion of the plea agreement in this case was that the government would move to dismiss Counts Two and Three of the indictment. Count Three charged that on or about October 9, 1987, the defendant had willfully and knowingly possessed four firearms, that is, four Sten MK-II machineguns, which had not been registered to him in the National Firearms Registration and Transfer Record as required by federal law. At the initial hearing set for sentencing in this matter, pursuant to information earlier conveyed to the United States Probation Office, the defendant vigorously asserts that he is entitled to a two offense level reduction under Guideline § 3E1.1 "Acceptance of Responsibility" which requires a determination that the "defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for the offense of conviction."1

The defendant did not, however, dispute the facts relied upon by the United States Probation Office in determining that the defendant was not entitled to a two point offense level reduction for acceptance of responsibility. These facts include that on July 20, 1988, while under indictment for the present offense, the defendant purchased a Browning .22 caliber rifle and, in order to purchase that rifle, made a false statement on the Alcohol, Tobacco and Firearms Form, Firearms Transaction Record. The presentence report reveals the undisputed fact that the defendant stated that he was not under indictment for a crime punishable by imprisonment for a term exceeding one year at the time he filled out that ATF form, but that he knew when he was completing the ATF form that he indeed was under indictment for this particular charge.

In addition to the question concerning acceptance of responsibility, the defendant has disputed the Probation Office's determination that the defendant is not entitled to a 6 point offense level reduction under § 2K2.2(b)(3) of the Guidelines. This particular Section provides that: "If the defendant obtained or possessed the firearm solely for sport, recreation or collection, decrease by 6 levels." Among other facts submitted by the government in a hearing on this issue, it was proved that, as charged in Count Three, the defendant possessed the parts for four Sten MK-II machineguns which could, utilizing parts in defendant's possession, be converted to fully automatic use. The government also put on proof that the defendant was in possession of a large number of other guns, but there was no proof that the possession of those guns was illegal or otherwise wrongful. The defendant himself has come forward with substantial proof that he enjoys guns and has possessed guns as a collector and recreational user for most of his life. This, he asserts, was the reason for the possession of the Sten guns.

During the course of this hearing, the issue was raised as to which party has the burden of proof concerning adjustments to the base offense level which results in a reduction of the base offense level. In this case, both instances of argued adjustment to the base offense level arise by virtue of the defendant's dispute with the application of facts contained in the presentence report or presented by the government during the sentencing hearing.

This court has had the benefit of the opinions of Chief Judge Allen Sharp of the United States District Court for the Northern District of Indiana in United States v. Clark, No. SCR 88-60(1) (N.D.Ind. May 10, 1989) (LEXIS, Genfed, Dist file), and Judge R. Allan Edgar of the United States District Court for the Eastern District of Tennessee in United States v. Dolan, 701 F.Supp. 138 (E.D.Tenn.1988). Judge Edgar held that the government has the burden of proof when it challenged presentence report recommendations of downward adjustment for acceptance of responsibility. Judge Sharp, on the other hand, concluded "that the burden should shift depending on the disputed factor at issue. It is clear to this court that the government should bear the burden of proof when showing that the defendant's base offense level should be increased." Clark, No. SCR 88-60(1), supra at 5. On the other hand,

having the government carry the burden of proof in the context of decreasing the base offense level seems inappropriate. ... The defendant's base offense level cannot be reduced under the Guidelines without proof that a factor exists which warrants such a reduction, e.g., acceptance of responsibility.... Surely, the government need not carry the burden of proving that the defendant's base offense level should not be decreased if there is no proof in the record warranting such a decrease. If evidence is submitted by the defendant warranting a decrease ... the government can then go forward with evidence disputing the same. But first there must be evidence warranting
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3 cases
  • U.S. v. Carroll
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • January 9, 1990
    ...required by the guidelines "have generally agreed that a preponderance standard is the proper measure." See, e.g., United States v. Lovell, 715 F.Supp. 854 (W.D.Tenn.1989); United States v. Dolan, 701 F.Supp. 138, 140 (E.D.Tenn.1988); United States v. Silverman, 692 F.Supp. 788, 791 (S.D.Oh......
  • U.S. v. Kirk
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 22, 1990
    ...States v. McGhee, 882 F.2d 1095 (6th Cir.1989); United States v. Restrepo, 884 F.2d 1294 (9th Cir.1989). In United States v. Lovell, 715 F.Supp. 854, 857 (W.D.Tenn.1989), the court took a slightly different approach to the burden of proof in a case involving reductions for acceptance of res......
  • US v. Ligon, Crim. No. CR 88-00013-01-P.
    • United States
    • U.S. District Court — Western District of Kentucky
    • August 14, 1989
    ...not ruled on this issue yet. However, two recent district court cases arrived at a contrary conclusion. See United States v. Lovell, 715 F.Supp. 854 (W.D.Tenn.1989); and United States v. Dolan, 701 F.Supp. 138 (E.D. Tenn.1988). As Urrego-Linares is the only case which has been rendered by a......

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