United States v. Miller

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

8-17-2000

United States v. Miller

Precedential or Non-Precedential:

Docket 00-5052

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Filed August 17, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-5052

UNITED STATES OF AMERICA

v.

JONATHAN MILLER a/k/a "Wacky Jack"

Jonathan Miller,

Appellant

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. No. 98-cr-00009)

District Judge: Honorable Mary Little Cooper

Argued: Tuesday, June 27, 2000

Before: ROTH, GARTH, Circuit Judges

and STANTON, District Judge*

(Filed: August 17, 2000)

Robert J. Haney (Argued)

224 West State Street

Trenton, NJ 08608

Attorney for Appellant

_________________________________________________________________

* Honorable Louis L. Stanton, United States District Judge for the

Southern District of New York, sitting by designation.

Robert J. Cleary

United States Attorney

970 Broad Street

Newark, NJ 07102

Gerard M. McCabe (Argued)

Assistant United States Attorney

United States Post Office and

Courthouse

401 Market Street

Camden, NJ 08101

Attorneys for Appellee

OPINION OF THE COURT

GARTH, Circuit Judge:

In this appeal, we are asked to consider whether an

individual convicted of an unlawful sale of firearms is

entitled to an offense level reduction pursuant to the

"sporting purposes" provision of the United States

Sentencing Guidelines. See U.S.S.G. S 2K2.1(b)(2).

Jonathan Miller ("Miller") pled guilty in the District Court

to one count of selling firearms without a license, in

violation of 18 U.S.C. S 922(a)(1)(A). At sentencing, Miller

argued that because he had possessed the firearms at issue

for "sporting purposes"-- until he chose to sell them

unlawfully -- he was entitled to an offense level reduction

to offense level six. If Miller received such a reduction, he

would be subject to between zero and six months of

incarceration under the Guidelines. The District Court

rejected Miller's argument, and we will affirm, albeit for

reasons different than those provided by the District Court.1

_________________________________________________________________

1. We may affirm a District Court's judgment on grounds other than

those considered by the District Court itself. See, e.g., PAAC v. Rizzo,

502 F.2d 306, 308 n.1 (3d Cir. 1974) ("It is proper for an appellate court

to affirm a correct decision of a lower court even when that decision is

based on an inappropriate ground.").

2

I

On January 9, 1998, a federal grand jury returned afive-

count indictment against Miller, generally charging him

with violations of federal firearms law. In particular, the

indictment charged that on February 6, 1997, Miller had

sold both an Israel Military Industries Desert Eagle model

.44 magnum semi-automatic handgun and a Ruger GP100

model .357 magnum revolver, along with ammunition

consisting of four magazines of hollow point bullets to an

undercover agent of the Drug Enforcement Agency in New

Jersey. On February 21, 1997, Miller sold, to the same

undercover agent -- this time in Pennsylvania-- a German

Luger-style handgun possessing nine millimeter and .30

caliber barrels. Finally, on September 26, 1997, Miller sold

a fourth firearm -- a Thompson target/hunting pistol with

.45, .410, and .223 caliber barrels -- to the same agent in

New Jersey. The indictment specifically charged Miller with

the sale of firearms without a license, in violation of 18

U.S.C. S 922(a)(1)(A), transportation of afirearm in

interstate commerce, in violation of 18 U.S.C. S 922(g), and

possession of ammunition, also in violation of 18 U.S.C.

S 922(g).2

Federal authorities arrested Miller on April 1, 1999.

Pursuant to a plea agreement executed by both Miller and

the government on July 22, 1999, in exchange for the

dismissal of the remaining four counts of the indictment,

on August 19, 1999, Miller pled guilty to count one of the

indictment, which charged him with selling firearms

without a license.

The District Court sentenced Miller on December 13,

1999. Because Miller had been convicted of an offense

_________________________________________________________________

2. Both the transportation and possession charges stem from the fact

that Miller had "been convicted in a[ ] court of[ ] a crime punishable by

imprisonment for a term exceeding one year." 18 U.S.C. S 922(g)(1).

Miller's presentence report indicates that he had been arrested in 1983

on state theft charges in Pennsylvania. PSR P 29. In 1983, "theft by

unlawful taking" was a felony of the third degree under Pennsylvania law

if the article stolen was valued at over $2000. See 18 Pa. Cons. Stat.

Ann. S 3903(a) (1983). A felony of the third degree is punishable by a

maximum of seven years imprisonment. See id.S 106(b)(4).

3

concerning a "prohibited transaction involvingfirearms,"

the court was required to sentence Miller in accordance

with section 2K2.1 of the United States Sentencing

Guidelines. Miller's previous felony conviction required that

he be classified as a "prohibited person" under section 2K2.1,3

and the District Court thereupon set his base offense level

at fourteen. See U.S.S.G. S 2K2.1(a)(6).4 The fact that Miller

had sold four different weapons subjected him to a one-

level increase to fifteen, see id. S 2K2.1(b)(1), or nine levels

above that provided by section 2K2.1(b)(2).

Miller argued that he was entitled to a reduction to level

six pursuant to section 2K2.1(b)(2) of the Guidelines

because each of the weapons involved in his offense were

possessed "solely for sporting purposes or collection." The

District Court rejected Miller's argument, holding that

because Miller had sold the firearms at issue in violation of

federal law, he had engaged in an "unlawful use" of the

firearms, and was therefore barred from receiving the

"sporting purposes" reduction. At Miller's sentencing

hearing, the District Court stated, in relevant part, as

follows:

I believe that there is an unclear issue here of law. . .

and I am sufficiently persuaded that this is a question

of first impression, if you will, in this Circuit at least,

that I will simply make a ruling based upon my legal

_________________________________________________________________

3. Application note six to section 2K2.1 defines "prohibited person" as,

inter alia, "anyone who . . . is under indictment for, or has been

convicted of, a `crime punishable by imprisonment for more than one

year,' as defined by 18 U.S.C. S 921(a)(20)." U.S.S.G. S 2K2.1 application

note 6. In pertinent part, 18 U.S.C. S 921(a)(20) provides that "[w]hat

constitutes a conviction of such a crime shall be determined in

accordance with the law of the jurisdiction in which the proceedings

were held." As stated earlier, see supra n.2, Pennsylvania law requires

that a "felony of the third degree" be punishable by a maximum of seven

years of incarceration. Miller, who, as we have noted, had been

previously convicted in Pennsylvania for "theft by unlawful taking," is

therefore deemed a "prohibited person."

4. Section 2K2.1(a)(6) provides a base offense level of fourteen "if the

defendant (A) is a prohibited person; or (B) is convicted under 18 U.S.C.

S 921(a)(30)." U.S.S.G. S 2K2.1(a)(6).

4

interpretation and allow the parties to take their

contentions on appeal.

I hold that the unambiguous language of Section

2K2.1(b)(2) indicates that the scope of this Court's

inquiry should be limited to cases in which possession

has occurred and the defendant did not "unlawfully

discharge or otherwise unlawfully use" the firearm.

Here, where the defendant's offense was that he sold

the firearms in an unlawful transaction, I hold that

that conduct is covered under the term "unlawfully

use" as found in this subsection, and therefore, that he

is not eligible for the six level offense which is afforded

for those who strictly use all ammunition and firearms

solely for lawful sporting purposes or collection.

Sentencing Transcript, at 20-22. The District Court thus

essentially held that a reduction pursuant to section

2K2.1(b)(2) to level six was unavailable, as a matter of law,

to defendants convicted of firearm trafficking offenses.5

After allowing a two-level reduction for acceptance of

responsibility, Miller's sentencing range pursuant to the

Guidelines was between twelve and eighteen months of

imprisonment, and the District Court sentenced him to a

prison term of twelve months and one day. Anticipating

that Miller planned to appeal its determination concerning

his application for a section 2K2.1(b)(2) reduction, and that

our disposition on appeal would likely be rendered

subsequent to Miller's release, the District Court stayed

Miller's sentence on December 22, 1999.

II

The District Court possessed subject matter jurisdiction

_________________________________________________________________

5. We note that the District Court, as a result of its holding, did not

render any factual finding concerning the reason for which Miller

initially

possessed the firearms; that is, before he engaged in the illegal sale for

which he was convicted. Sentencing Transcript, at 23 ("If such an

inquiry needs to be made, this Court is equipped to do it, but I don't

think it is, and so my ruling is that this section does not apply in the

circumstances of this case . . . as applied to the charge in this case."

(emphasis added)).

5

over this matter pursuant to 18 U.S.C. S 3231. Because

Miller appeals from the District Court's final judgment of

conviction and sentence, and raises an issue concerning

the District Court's calculation of his sentence, our

appellate jurisdiction is grounded in both the final order

doctrine of 28 U.S.C. 1291 and 18 U.S.C. S 3742(a). As

Miller argues that the District Court erred in its

construction of the Sentencing Guidelines, our review is

plenary. See, e.g., United States v. Torres, 209 F.3d 308,

311 (3d Cir. 2000).

III

As its title, "Unlawful Receipt, Possession, or

Transportation of Firearms or Ammunition: Prohibited

Transactions Involving Firearms or Ammunition," suggests,

the Sentencing Commission intended section 2K2.1 of the

Sentencing Guidelines generally to govern the sentencing of

defendants convicted of any number of firearms offenses. In

addition to listing the base offense levels for the various

firearms offenses, section 2K2.1 also provides"specific

offense characteristics"; that is, circumstances particular to

a given defendant's actual conduct that, if established,

would either increase or decrease a particular defendant's

offense level. One such provision is the focus of the instant

appeal, section 2K2.1(b)(2), which is colloquially known as

the "sporting purposes reduction." See Thomas W.

Hutchinson, et al., Federal Sentencing Law and Practice

621 (2000). In full, section 2K2.1(b)(2) reads as follows:

If the defendant, other than a defendant subject to

subsection (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5), possessed

all ammunition and firearms solely for lawful sporting

purposes or collection, and did not unlawfully discharge

or otherwise unlawfully use such firearms or

ammunition, decrease the offense level determined

above to level 6.

U.S.S.G. S 2K2.1(b)(2) (emphasis added).

The terms of section 2K2.1(b)(2) call for the establishment

of three requirements in order to warrant an offense level

reduction: (1) that the defendant is not subject to

6

subsections 2K2.1(a)(1)-(5);6 (2) that the defendant

"possessed all ammunition and firearms solely for lawful

sporting purposes or collection"; and (3) that the defendant

"did not unlawfully discharge or otherwise unlawfully use

such firearms or ammunition." The defendant must

establish each of these elements by a preponderance of the

evidence. See, e.g., United States v. Dudley, 62 F.3d 1275,

1276 (10th Cir. 1995); United States v. Gonzales , 12 F.3d

298, 301 (1st Cir. 1993).

As stated earlier, the District Court recognized that Miller

had satisfied the first requirement, in that he was not

subject to subsections 2K2.1(a)(1)-(a)(5). The District Court

then assumed that Miller could satisfy his burden with

respect to the second requirement, yet held that because

Miller had illegally sold the firearms at issue, he had

"unlawfully used" the firearms, and therefore could not

meet his burden with respect to the third requirement. Our

_________________________________________________________________

6. In full, sections 2K2.1(a)(1)-(a)(5) provide as follows:

(a) Base Offense Level (Apply the Greatest):

(1) 26, if the offense involved a firearm described in 26 U.S.C.

S 5845(a) [definitions of particularfirearms] or 18 U.S.C. S

921(a)(30)

[definition of "semiautomatic assault weapon"], and the defendant

had at least two prior felony convictions of either a crime of

violence

or a controlled substance offense; or

(2) 24, if the defendant had at least two prior felony convictions

of

either a crime of violence or a controlled substance offense; or

(3) 22, if the offense involved a firearm described in 26 U.S.C.

S 5845(a) or 18 U.S.C. S 921(a)(30), and the defendant had one

prior

felony conviction of either a crime of violence or controlled

substance offense; or

(4) 20, if --

(A) the defendant had one prior felony conviction of either a crime

of violence or a controlled substance offense; or

(B) the offense involved a firearm described in 26 U.S.C. S 5845(a)

or 18 U.S.C. S 921(a)(30); and the defendant (i) is a prohibited

person; or (ii) is convicted under 18 U.S.C. S 922(d); or

(5) 18, if the offense involved a firearm described in 26 U.S.C.

S 5845(a) or 18 U.S.C. S 921(a)(3) . . ..

7

analysis, however, differs from that of the District Court

inasmuch as we hold that Miller did not satisfy the second

requirement of the guideline; because Miller sold the

firearms, he did not possess them "solely for a lawful

sporting purposes or collection."

A

The government concedes that Miller was not subject to

subsections (a)(1)-(a)(5) of section 2K2.1(b)(2). Instead,

Miller is a "prohibited person" by virtue of his 1983

Pennsylvania conviction. Accordingly, Miller was properly

assigned a base offense level of fourteen pursuant to

section 2K2.1(a)(6), which the District Court increased to

fifteen as a result of Miller's multi-firearm transaction.

B

As stated above, the second requirement of a claim for a

section 2K2.1(b)(2) reduction mandates that the defendant

establish that he "possessed all ammunition andfirearms

[at issue] for lawful sporting purposes or collection." We

held in United States v. Wong, 3 F.3d 667 (3d Cir. 1993),

that "the plain and unambiguous language of the

Sentencing Guidelines affords the best recourse for their

proper interpretation." Id. at 670; see also 2A Norman J.

Singer, Statutes and Statutory ConstructionS 46.01, at 53

(West Supp. 1999). In our view, the plain language of

section 2K2.1(b)(2) excludes trafficking offenses from the

offense level reduction provided by the provision.

As an initial matter, we note that section 2K2.1(b)(2)

stipulates that the firearms in question must have been

"possessed . . . solely for lawful sporting purposes or

collection." U.S.S.G. S 2K2.1(b)(2) (emphasis added). More

importantly, the relevant Guidelines provision does not use

the terms "traffic," "sell," or "transfer" to describe conduct

connected with a sporting or collective purpose that would

entitle a particular defendant to an offense level reduction.

The Commission did use such language, however, in

other subsections to section 2K2.1, thereby emphasizing

the omission of these terms in the "sporting purposes"

8

guideline. For example, section 2K2.1(b)(5) generally

provides a four level increase to a defendant's base offense

level

[i]f the defendant used or possessed any firearm or

ammunition in connection with another felony offense;

or possessed or transferred any firearm or ammunition

with knowledge, intent, or reason to believe that it

would be used or possessed in connection with another

felony offense.

Id. S 2K2.1(b)(5) (emphasis added). The fact that the

Sentencing Commission included language within certain

provisions of section 2K2.1 that would clearly include

trafficking, sale, or transfer offenses, but chose not to

include such language within the terms of section

2K2.1(b)(2), is sufficient to conclude that the Commission

did not intend for section 2K2.1(b)(2) to apply to those

defendants convicted of trafficking, sale, or transfer

offenses. See Russello v. United States, 464 U.S. 16, 23

(1983) (" `[W]here Congress includes particular language in

one section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or

exclusion.' " (quoting United States v. Wong Kim Bo, 472

F.2d 720, 722 (5th Cir. 1972) (per curiam))); see also United

States v. Tham, 118 F.3d 1501, 1506 (11th Cir. 1997)

(applying the principle established in Russello to a

construction of the Sentencing Guidelines); United States v.

Olivares, 905 F.2d 623, 629-30 (2d Cir. 1990) (per curiam)

(same).

As stated earlier, the District Court convicted Miller of

selling firearms without a license. Because the specific

characteristics of Miller's offense therefore establish that

Miller did not merely possess the firearms in question, but

rather sold them, the plain meaning of the Sentencing

Guidelines bars Miller from obtaining an offense level

reduction pursuant to section 2K2.1(b)(2). Miller's brief,

however, raises a number of arguments, to which we now

turn.7

_________________________________________________________________

7. Although Miller does not specify the arguments discussed in Section

IV of this opinion in his "Statement of the Issues," we have gleaned from

the discussion in his brief that he relies upon the arguments we catalog

in Section IV.

9

IV

A

Miller first argues that the Commission intended the

word "possessed" in section 2K2.1(b)(2) to refer to a

defendant's use of the firearms in question only up until the

date of the conduct giving rise to his conviction-- in this

case, the sale of the firearms. In other words, Miller asserts

that he is entitled to a reduction pursuant to section

2K2.1(b)(2) if he had possessed the firearms in question for

lawful sporting purposes up until the date he illegally sold

the same. Initially, we note that the plain language of

section 2K2.1(b)(2) does not in any way limit its provisions

in a temporal fashion. Even if we were to harbor doubt

concerning Miller's argument, however, application note 10

to section 2K2.1, referring to section 2K2.1(b)(2), provided

by the Sentencing Commission itself, states that

[u]nder subsection(b)(2), "lawful sporting purposes or

collection" as determined by the surrounding

circumstances, provides for a reduction to an offense

level of 6. Relevant surrounding circumstances include

the number and type of firearms, the amount and type

of ammunition, the location and circumstances of

possession and actual use, the nature of the

defendant's criminal history . . . and the extent to

which possession was restricted by local law.

Id. S 2K2.1 application note 10 (emphasis added).8 In our

view, by authorizing the courts to inquire into the"actual

use" to which the defendant put the firearms in question,

_________________________________________________________________

8. Analogizing the commentary in the Guidelines (e.g., the application

notes) to "legislative rules," the Supreme Court has held that "provided

an agency's interpretation of its own regulations does not violate the

Constitution or a federal statute, it must be given`controlling weight

unless it is plainly erroneous or inconsistent with the regulation.' "

Stinson v. United States, 508 U.S. 36, 45 (quoting Bowles v. Seminole

Rock & Sand Co., 325 U.S. 410, 414 (1945)); see also U.S.S.G. S 1B1.7

("Failure to follow such commentary could constitute an incorrect

application of the guidelines, subjecting the sentence to possible

reversal

on appeal."). As such, we are bound by any interpretive guidance

provided by the Sentencing Commission through the application notes.

10

the Sentencing Commission has evinced its intent to extend

the relevant inquiry (i.e., whether the defendant possessed

all firearms for lawful sporting purposes) to the conduct

giving rise to the instant conviction -- here, the unlawful

sale. Each of our sister circuits to have considered the

issue have so held. See, e.g., United States v. Gresso, 24

F.3d 879, 881 (7th Cir. 1994) ("The other circuits are in

accord: not only must a firearm be of a type that would be

acquired for sporting uses or for collection, but it must also

be possessed or used solely for those purposes."); United

States v. Shell, 972 F.2d 548, 553 (5th Cir. 1992) ("[I]s is

not sufficient that one among several intended uses might

be lawful recreation or collection; one of those must be the

sole intended use."); United States v. Smeathers, 884 F.2d

363, 364 (8th Cir. 1989) (per curiam) ("In our view, the

commentary makes clear that application of the reduction

depends on both intended and actual use.").9

B

Miller next argues that an interpretation preventing all

defendants convicted of the unlawful sale of firearms from

receiving an offense level reduction pursuant to section

2K2.1(b)(2) would nullify the application of this provision to

those defendants, like Miller, whose initial offense level was

provided by section 2K2.1(a)(6). The District Court set

Miller's initial offense level, pursuant to section 2K2.1(a)(6),

at fourteen because he was a "prohibited person"; that is,

an individual who, inter alia, "has been convicted of[ ] a

_________________________________________________________________

9. Indeed, the Eighth Circuit has confronted and rejected virtually the

same argument that Miller makes in the present matter. In United States

v. Smeathers, 884 F.2d 363 (8th Cir. 1989), the defendant (a previously-

convicted felon) had purchased a rifle for hunting purposes, but was

convicted of unlawful possession after he fired the gun in his home

during an argument with his wife. See id. at 364. Like Miller, the

defendant argued that he was entitled to a section 2K2.1(b)(2) reduction

because he had possessed the rifle for sporting purposes up until the

moment of the conduct that led to his conviction. The Eighth Circuit,

however, rejected the defendant's argument, holding that the conduct

that led to the underlying conviction was relevant to the district court's

determination as to whether the defendant possessed the firearm in

question solely for sporting purposes. See id. at 364-65.

11

`crime punishable by imprisonment for more than one year,'

as defined by 18 U.S.C. S 921(a)(20)." U.S.S.G. S 2K2.1

application note 6; see also supra nn. 3-4. As we stated

earlier, Miller is not automatically disqualified from

receiving a section 2K2.1(b)(2) reduction as a result of being

sentenced pursuant to section 2K2.1(a)(6). Rather, as an

individual whose base offense level was determined under

section 2K2.1(a)(6), he is eligible for a section 2K2.1(b)(2)

reduction if he meets that section's requirements.

Our holding that section 2K2.1(b)(2) does not extend to

those defendants convicted of trafficking offenses, however,

does not render the provision a nullity; to the contrary,

defendants who are considered "prohibited persons" under

section 2K2.1(a)(6) could have been defendants who have

been convicted for the illegal possession of a firearm.10 As

such, certain defendants who are classified as"prohibited

persons" are eligible for a reduction pursuant to section

2K2.1(b)(2). It is therefore not inconsistent to allow those

defendants whose initial offense levels were obtained

through section 2K2.1(a)(6) to be eligible for a section

2K2.1(b)(2) reduction, but then to limit such a reduction to

only those defendants convicted of illegally possessing a

firearm, when such a firearm has solely been used for

sporting purposes or collection.

C

Miller also argues that the history surrounding the

present-day version of section 2K2.1 evinces an intent to

allow defendants convicted of trafficking offenses to benefit

from the reduction provided by section 2K2.1(b)(2). Prior to

November 1, 1991, what is presently section 2K2.1 was

actually three separate guidelines; to wit, sections 2K2.1,

2K2.2 (now deleted), and 2K2.3 (now deleted). Each of the

three sections separately and respectively dealt with the

sentencing of defendants convicted of possession offenses,

trafficking offenses, and transportation offenses with intent

_________________________________________________________________

10. Federal statute renders it a crime for an individual "who has been

convicted in any court of, a crime punishable by imprisonment for a

term exceeding one year" to possess a firearm. 18 U.S.C. S 922(g)(1).

12

or knowledge that the firearms would be used in future

crimes.

The "sporting purposes reduction" (former section

2K2.1(b)(1)) was exclusively located within the guideline

concerning possession offenses, and there was no

comparable provision within either sections 2K2.2

(trafficking) or 2K2.3 (transportation). In 1991, however, the

Sentencing Commission consolidated all three sections into

one, the present-day section 2K2.1. Miller argues that this

consolidation manifests an intent on the part of the

Sentencing Commission to allow any defendant convicted of

a firearms offense to obtain an offense level reduction

pursuant to section 2K2.1(b)(2), even when the defendant

fails to meet the requirements of the possessory"sporting

purposes" reduction of section 2K2.1(b)(2).

The mere consolidation of all firearms offenses into a

single guideline, without more, however, is insufficient to

contradict the plain meaning of section 2K2.1(b)(2). Indeed,

the Sentencing Commission, if it desired, could have

provided that upon consolidation, the "sporting purposes"

reduction applied to all firearms offenses, including sale,

transfer, or trafficking. It did not do so.

D

Miller's final argument centers around application note 8

to section 2K2.1. In full, application note 8 states as

follows:

Subsection (a)(7) includes the interstate transportation

or interstate distribution of firearms, which is

frequently committed in violation of state, local, or

other federal law restricting the possession offirearms,

or for some other underlying unlawful purpose. In the

unusual case in which it is established that neither

avoidance of state, local, or other federal firearms law,

nor any other underlying unlawful purpose was

involved, a reduction in the base offense level to no

lower than level 6 may be warranted to reflect the less

serious nature of the violation.

Id. S 2K2.1 application note 8. Miller essentially argues that

because section 2K2.1(b)(2) does not specifically disqualify

13

defendants whose initial offense level is obtained pursuant

to section 2K2.1(a)(7), and application note 8 specifically

indicates that a district court may reduce the offense level

of a defendant convicted of a trafficking offense to level six,

the Sentencing Commission intended for all such

defendants to receive the benefit of a section 2K2.1(b)(2)

reduction.

We disagree. As an initial matter, application note 8

tellingly lacks any reference whatsoever to section

2K2.1(b)(2). Moreover, application note 8 does not specify

that a defendant must prove that the firearms possessed

were solely for "lawful sporting purposes or collection," as

required by section 2K2.1(b)(2). Hence, application note 8

has no relationship to the "sporting purposes" reduction of

section 2K2.1(b)(2). Inasmuch as the sole issue before us is

whether Miller is entitled to a reduction to offense level six

pursuant to the "sporting purposes" provision of section

2K2.1(b)(2), and not whether Miller is entitled to a

reduction to offense level six provided for other purposes in

some other section of the Sentencing Guidelines, we reject

Miller's argument. Indeed, our review of the record

indicates that Miller failed even to mention application note

8 to the District Court, let alone seek an offense level

reduction pursuant to its terms. Because we believe that

the reduction to which application note 8 refers does not

concern the specific characteristics of Miller's offense and

has no connection with the with the specific reduction

provided by section 2K2.1(b)(2) for firearms possessed solely

for lawful sporting purposes or collection, Miller's argument

fails.

E

Because Miller cannot establish that he possessed the

firearms at issue in the instant matter "solely for lawful

sporting purposes," we need not entertain nor address the

argument concerning whether Miller's unauthorized sale of

the firearms constituted an "unlawful use"-- the third

requirement of a claim for a section 2K2.1(b)(2) reduction.

14

V

For the foregoing reasons, we will affirm the District

Court's order of December 15, 1999, sentencing Miller to a

term of incarceration spanning twelve months and one day.11

_________________________________________________________________

11. The District Court, in its December 22, 1999 order, among other

things, provided for Miller's surrender to the custody of the United

States

Marshal for the District of New Jersey in the event that the judgment

Miller appealed was affirmed. In light of our affirmance, we assume that

the stay of sentence imposed by the District Court will be discharged

and the sentence carried out.United States v. Miller, No. 00-5052.

15

Stanton, J., dissenting:

Standing alone, S 2K2.1(b)(2) could be read (as the

majority does) not to apply to unlawful sales, but only to

unlawful possession.

But subsection (b)(2) does not stand alone. It must be

read in connection with Application Note 8.

Reading both together is not only natural; as the

Government urges, it is a necessity. Quite correctly, the

Government points out that "the base offense level

reduction to level 6 referred to in Application Note 8 can

only be understood to mean the reduction to level 6

provided by S 2K2.1(b)(2)." Appellee's br. 12, n. 9. As the

Government explains, "Otherwise, Application Note 8 would

be meaningless because there is no other operative base

level reduction provision within the rubric of S 2K2.1." Id.

Integrally, Application Note 8 ties subsection (b)(2)'s

reduction to sales, even though it may be unusual that a

particular sale will qualify:

Subsection (a)(7) includes the interstate transportation

or interstate distribution of firearms, which is

frequently committed in violation of state, local, or

other federal law restricting the possession offirearms,

or from some other underlying unlawful purpose. In

the unusual case in which it is established that neither

avoidance of state, local, or other federal firearms law,

nor any other underlying unlawful purpose was

involved, a reduction in the base offense level to no

lower than level 6 may be warranted to reflect the less

serious nature of the violation.

U.S.S.G. S 2K2.1, Commentary, Application Note 8.

Thus, subsection (b)(2)'s sentence reduction, and

Application Note 8's application of it to sales, are

harmonious rather than in conflict.

The question whether the sale is a "use" which bars the

reduction in subsection (b)(2) will be decided by whether

the sale satisfied Note 8's requirements, and the seller's

pre-sale possession complied with (b)(2).

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The case should be remanded for determination whether

Mr. Miller's pre-sale possession was of the peaceable

character required by subsection (b)(2), and whether his

sales met the requirements of Application Note 8. If both

qualify, his base level should be reduced to level 6.

The majority affirms a sentence imposed by a Judge who

believed the law prevented her from even considering such

matters. Respectfully, I dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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