USA. v. Solomon, 01-4501
| Decision Date | 30 October 2001 |
| Docket Number | No. 01-4501,01-4501 |
| Citation | 274 F.3d 825 |
| Parties | (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellant, v. WILLIAM CLIFFORD SOLOMON, III, Defendant-Appellee. Argued: |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Gerald Bruce Lee, District Judge. (CR-01-24) COUNSEL ARGUED: Alessandra DeBlasio, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant. Douglas Adrien Steinberg, Alexandria, Virginia, for Appellee. ON BRIEF: Paul J. McNulty, United States Attorney, Vincent L. Gambale, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellant.
Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and Malcolm J. HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation.
Vacated and remanded by published opinion. Judge Motz wrote the opinion, in which Chief Judge Wilkinson and Judge Howard joined.
The Government challenges the district court's determination that William Solomon was entitled to an eight-level reduction in his offense level at sentencing for possessing a firearm "solely for lawful sporting purposes or collection." Because the record is devoid of any factual basis for the reduction, we vacate the sentence and remand the case for resentencing in accordance with this opinion.
On July 25, 2000, William Solomon sought to purchase an Intratec 9mm pistol at Woodbridge Gold & Jewelry, a pawn shop in Woodbridge, Virginia. Before Solomon could buy the weapon, he was required by law to submit to a criminal background check to establish that he could lawfully purchase the weapon. As part of this background check, Solomon had to complete Federal Bureau of Alcohol, Tobacco and Firearms (ATF) Form 4473, which asks whether an applicant has ever been convicted of a misdemeanor crime of domestic violence. Solomon answered "no" to this question, although in 1997 he had been convicted of a domestic violence misdemeanor -battering his live-in girlfriend.
After Solomon completed the Form 4473, Woodbridge Gold & Jewelry contacted the Virginia state police to obtain instant background verification, but the police provided no immediate response. Woodbridge Gold & Jewelry therefore advised Solomon that the law required a three-day wait -if the police had not responded with any disqualifying information by that time, Solomon could buy the pistol.
Four days later, on July 29, when Woodbridge Gold & Jewelry had still received no reply at all to the background inquiry, it sold the pistol to Solomon. Sometime before August 8, however, the Virginia state police completed its background check on Solomon and learned of his prior domestic violence conviction. Solomon attempted two additional firearm purchases during August 20001 but was not permitted to purchase the firearms because police immediately notified these dealers that Solomon had failed the background check. On each Form 4473 that Solomon completed for these later attempts to purchase firearms, Solomon again answered "no" to the question of whether he had been convicted of a misdemeanor crime of domestic violence.
An ATF agent investigated and later interviewed Solomon, and Solomon admitted to providing false information on his July 25 ATF form. Ultimately, Solomon pled guilty to knowingly and unlawfully receiving and possessing the Intratec 9mm pistol, after having been previously convicted of a misdemeanor crime of domestic violence. See 18 U.S.C.A. S 922(g)(9) (1998).
The presentence report (PSR) submitted to the district court identified level 14 as the applicable base offense level for receipt and possession of a firearm by a "prohibited person," that is, a person convicted of a "misdemeanor crime of domestic violence." See U.S. Sentencing Guidelines Manual S 2K2.1(a)(6), S 2k2.1, cmt. n.6 (2000). The PSR also recommended an eight-level reduction to the base offense level, pursuant to S 2K2.1(b)(2), on the ground that the pistol had been possessed "solely for lawful sporting purposes or collection."
The initial PSR neither provided nor identified any evidence to support the conclusion that Solomon possessed the pistol solely for lawful sporting or collection purposes.
Citing this absence of evidence, the Government objected to the PSR's recommendation that Solomon receive the "lawful sporting purposes and collection" reduction. Moreover, the Government proffered testimony from an ATF agent stating that both the kind of pistol in question (which the Government argued was a "Saturday Night Special") and Solomon's pawning of the firearm shortly after purchase were inconsistent with possession solely for lawful sporting or collection purposes.
The probation officer responded to the Government's objection by submitting an addendum to the PSR. The addendum stated that a reduction under S 2K2.1(b)(2) seemed appropriate, notwithstanding the Government's contentions that the pistol was not a "collector's item" or "standard hunting weapon,"...
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...the burden of proving that he was entitled to the sentencing reduction contemplated by U.S.S.G. § 2K2.1(b)(2).10 United States v. Solomon, 274 F.3d 825, 828 n.2(4th Cir. 2001). Woods fails to carry his burden on this point. The fact that someone allegedly purchased a firearm for his son as ......
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