United States v. Chester Wayne Santoro

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

________________________ ELEVENTH CIRCUIT

JUNE 15 2007

No. 06-14507 THOMAS K. KAHN

Non-Argument Calendar CLERK

________________________

D. C. Docket No. 06-80033-CR-DMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHESTER WAYNE SANTORO,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(June 15, 2007)

Before DUBINA, BLACK and CARNES, Circuit Judges.

PER CURIAM:

Chester Wayne Santoro appeals his sentence imposed after pleading guilty

to possession of one or more firearms and one or more rounds of ammunition by a

convicted felon, possession of a firearm by a convicted felon, and possession of

one or more firearms and one or more rounds of ammunition, all in violation of 18

U.S.C. § 922(g)(1). Santoro was found in possession of 24 firearms. One of the

firearms, a Cobray Model M10 .45 caliber semi-automatic pistol (Cobray pistol),

had a barrel length of approximately 5 3/4 inches and had an aftermarket nut glued

to its handle. The Cobray pistol was found together in the same case with a

detached shoulder stock, a stock screw, and an allen wrench.1 Santoro contends

the district court clearly erred by classifying the Cobray pistol as a short-barreled

rifle, pursuant to 26 U.S.C. § 5845. Santoro further contends his sentence is

unreasonable. We address each issue in turn.

I.

Santoro asserts, for the first time on appeal, that there was no evidence the

Cobray pistol had a rifled bore, a grooved interior to the gun’s barrel, because a

pistol could have had either a smooth or rifled bore. Santoro contends the

Government failed to meet its burden of proof with regard to the essential element

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The parties stipulated that the Cobray pistol and shoulder stock were found together, but

disassembled, in the same case.

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of showing the Cobray pistol had a rifled bore. Therefore, Santoro argues the

enhanced base offense level under § 2K2.1(a)(4)(B) was improper.

Because Santoro failed to raise any objection in the district court, Santoro’s

claim the Cobray pistol did not have a rifled bore is reviewed only for plain error

to avoid manifest injustice. See United States v. Harness, 180 F.3d 1232, 1234

(11th Cir. 1999). The ATF report stated the Cobray pistol was “designed to use the

energy of an explosive to fire a single projectile through a rifled bore for each

single pull of the trigger.” (Emphasis added). Santoro explicitly stated he had no

objections to the admission of the ATF report because his argument against the

enhancement “[was] clearly a legal argument.” Thus, the record contained

uncontested evidence the Cobray pistol contained a riled bore, and the district court

did not commit error, plain or otherwise, by relying on that evidence to enhance

Santoro’s sentence.

Santoro further contends the Cobray pistol does not qualify as a prohibited

short-barreled rifle, for purposes of 26 U.S.C. § 5845(c), because the shoulder

stock was not attached to the Cobray pistol at the time it was found. Santoro

contends the definition of “rifle” should be read narrowly because, in contrast to

the definition of “machinegun” in § 5845(b), the definition of “rifle” in § 5845(c)

does not contain language equating disassembled parts to a fully-assembled

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weapon. Santoro asserts the district court failed to consider United States v.

Thompson/Center Arms Co., 112 S. Ct. 2102 (1992), and improperly relied on

United States v. Kent, 175 F.3d 870 (11th Cir. 1999), and other circuit court cases

that are distinguishable from this case. Santoro asserts the Cobray pistol is its own

discrete weapon, different than the rifle discussed in Kent, and is completely

operable with or without the shoulder stock.

In Thompson, the Supreme Court determined that a weapon kit produced by

Thompson/Center Arms Company (Thompson/Center) was not taxable as a

“firearm” for purposes of the National Firearms Act (NFA), 26 U.S.C. § 5821. 112

S. Ct. at 2104. The three-justice plurality in Thompson determined

Thompson/Center had not “made” a short-barreled rifle within the meaning of 26

U.S.C. § 5821, because the aggregation of parts within each kit could result in a

dual use of either a non-prohibited firearm or a prohibited firearm. Id. at 2104-05,

2107-10. However, the plurality applied a “utility” test, determining that

packaging a gun together with parts that “would have no use in association with the

gun except to convert it into a firearm” would suffice to “make” a firearm for

purposes of the NFA. Id. at 2106-07. The plurality rejected Thompson/Center’s

argument the definition of “rifle” should be read narrowly and no aggregation of

parts could suffice to make a prohibited rifle. Id. at 2107-09.

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In Kent, this Court held there was sufficient evidence to prove Kent

possessed a prohibited rifle for purposes of § 5845(c), even though the unit was

disassembled, because the pieces “were located in the same, small apartment and

could be connected so quickly and easily, creating an operable short-barreled rifle

with only a minimum of effort.” 175 F.3d at 874. Section 5845(c)’s definition of a

“rifle” does not specify that the weapon must be fully assembled in order to be a

“rifle,” and the “critical factor [was] that the weapon could be readily restored to

operate as a firearm.” Id. at 874-75 (quotations omitted). We discussed Thompson

and determined that, although Thompson “raises more questions than it answers,”

the plurality’s “utility” analysis supported Kent’s conviction because the units

“clearly and easily [could] be used to convert the [rifle] into a ‘firearm’ and [the

units had] no other ostensible purpose aside from making such a conversion.” Id.

at 877.

The district court did not clearly err in finding that, despite being

disassembled, the units found within the single case constituted a prohibited

short-barreled rifle. United States v. Trujillo, 146 F.3d 838, 847 (11th Cir. 1998)

(stating a district court’s factual findings are reviewed for clear error). Consistent

with Kent, the Cobray pistol, together with the shoulder stock and the screw, were

located in close proximity to one another and could be easily restored to operate as

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a short-barreled rifle quickly and with only a minimum of effort. See Kent, 175

F.3d at 874. Furthermore, there was no evidence the combined units had any other

“ostensible purpose” aside from converting the pistol into a prohibited short-

barreled rifle. See id. at 877. The shoulder stock fit easily onto the Cobray pistol,

and the screw found inside the case fit onto the aftermarket nut that was glued to

the handle of the Cobray pistol. Once the pieces were assembled, the Cobray pistol

became a “rifle” with a barrel length of approximately 5 3/4 inches and was

“redesigned . . . to be fired from the shoulder and . . . redesigned to use the energy

of the explosive in a fixed cartridge to fire only a single projectile through a rifled

bore for each single pull of the trigger.” 26 U.S.C. § 5845(a), (c).

III.

Santoro contends that under the circumstances of his case, the imposition of

an advisory Guidelines range sentence was unreasonably harsh. Sentencing

requires two steps. United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005).

The district court must first calculate the correct advisory Guidelines range. Then,

the district court must consider the 18 U.S.C. § 3553(a) factors and to determine a

reasonable sentence. Id. Some of the § 3553(a) factors include the nature and

circumstances of the offense, the history and characteristics of the defendant, the

need for adequate deterrence and protection of the public, the pertinent Sentencing

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Commission policy statements, and the need to avoid unwarranted sentencing

disparities. See 18 U.S.C. § 3553(a)(1)-(6).

Santoro has not met his burden of establishing the sentence imposed was

unreasonable. See Talley, 431 F.3d at 788 (“[T]he party who challenges the

sentence bears the burden of establishing that the sentence is unreasonable in light

of both [the] record and the factors in section 3553(a).”). First, the district court

correctly calculated Santoro’s Guidelines range. Second, the district court

explicitly referenced the § 3553(a) factors, and noted it was aware of the advisory

nature of the Guidelines. The court considered the nature and circumstances of the

offense and the history and characteristics of Santoro, noting it was “very

sympathetic with the medical problems of both [Santoro] and his family, and

[acknowledged there was a] tremendous impact on the family on this sentence.”

Of particular importance to the court, however, was the need for deterrence, which

was heightened in this case because Santoro, a convicted felon, was selling

weapons. The 41-month sentence imposed is at the low end of the Guidelines

range, does not exceed the 10-year statutory maximum, and achieves the purposes

of sentencing stated in § 3553(a). See 18 U.S.C. § 924(a)(2); Talley, 431 F.3d at

787-88 (stating although a sentence within the Guidelines range is not per se

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reasonable, we would ordinarily expect a within-Guidelines sentence to be a

reasonable one).

IV.

The district court did not clearly err by classifying the Cobray pistol as a

short-barreled rifle pursuant to 26 U.S.C. § 5845. Additionally, Santoro’s sentence

is reasonable. Thus, we affirm his sentence.

AFFIRMED.

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