United States v. Bristow

United States Court of Appeals, Eleventh Circuit.

No. 96-6179.

UNITED STATES of America, Plaintiff-Appellee,

v.

Ephriam BRISTOW, Defendant-Appellant.

April 18, 1997.

Appeal from the United States District Court for the Middle

District of Alabama. (No. cr-95-191-N), W. Harold Albritton, III,

Judge.

Before BIRCH, Circuit Judge, RONEY, Senior Circuit Judge, and

HANCOCK*, Senior District Judge.

PER CURIAM:

In this appeal, we determine whether possession of a firearm

by a convicted felon solely for delivery as collateral for a loan

can be the basis for a downward departure from the applicable

Sentencing Guidelines range for violating 18 U.S.C. § 922(g)(1).

The district court concluded that it did not have the discretion to

depart downward. We affirm.

I. BACKGROUND

In the summer of 1994, defendant-appellant, Ephriam Bristow,

who lived with his parents in their home, was in debt. He needed

money to pay overdue bills and his child support obligations. On

July 22, 1994, Bristow took his father's unloaded and lawfully

owned Smith and Wesson, Model 13-2, .357 Magnum revolver and pawned

it at Quik Pawn Shop in Montgomery, Alabama. On August 3, 1994, in

an attempt to retrieve the handgun that he had pawned, Bristow

completed a gun registration form and represented that he was not

*

Honorable James H. Hancock, Senior U.S. District Judge for

the Northern District of Alabama, sitting by designation.

prohibited from possessing a firearm under federal law because he

had not been convicted of a felony. Bristow was not permitted to

redeem the revolver because, during the waiting period, it was

discovered that he had pled guilty in Montgomery County Circuit

Court to possession of a controlled substance in 1992, for which he

was sentenced to three years of imprisonment.1 On August 29, 1995,

Bristow was indicted in a two-count indictment. Count I of the

indictment charged him with being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). Count II charged

him with making a false statement in connection with the

acquisition of a firearm in violation of 18 U.S.C. § 922(a)(6).

Bristow pled guilty to Count I; Count II was dismissed by the

government.

At his sentencing hearing on February 8, 1996, Bristow

proffered and the district court accepted the following facts: (1)

Bristow possessed only one firearm, a handgun; (2) the firearm

possessed by Bristow was owned lawfully by his father; (3) Bristow

did not possess any ammunition; (4) Bristow possessed the firearm

for the minimal time that it took for him to carry the weapon from

his family home to a neighborhood pawn shop; (5) when Bristow

pawned the firearm, he gave correct information concerning his

identity, his address, and his telephone number; (6) Bristow did

not use or intend to use the firearm for any unlawful purpose; (7)

Bristow did not possess the weapon for self-defense or

self-protection; and (8) Bristow had never been convicted of an

1

This sentence was suspended, and Bristow was released on

probation for two years.

offense involving firearms. Based on these facts purportedly

comprising innocent possession, Bristow requested a downward

departure under U.S.S.G. § 5K2.0, p.s.2 He argued that the use of

a firearm as collateral for a loan was not considered by the

Sentencing Commission in formulating the Sentencing Guidelines and

that the facts of this case warranted a departure.

Based on U.S.S.G. §§ 2K2.1 and 5K2.0, p.s., the district judge

explained his reasons for concluding that he was precluded from

according Bristow a downward departure:

I have given long and serious thought to this and that is

the reason I wanted to take a recess so I could think about

it, look at it, consider it. I have listened to the argument

of counsel. Having done so, I find that I am not able to

reduce this and depart below the Guidelines.

I find that, first, I would have to say that there exists

mitigating circumstances of the kind and to the degree not

adequately taken into consideration by the Sentencing

Commission in formulating the Guidelines. I don't think that

is the case. I think the Sentencing Commission took into

consideration the idea of innocent possession. I think that

they addressed the issue of innocent possession of a firearm

in adopting the provision in 2K2.1 that provides for a

downward departure in the event that the person possesses a

firearm solely for lawful sporting purposes or collection.

And at one time recreation.

....

2

In relevant part, U.S.S.G. § 5K2.0, p.s., provides:

Under 18 U.S.C. § 3553(b) the sentencing court may

impose a sentence outside the range established by the

applicable guideline, if the court finds "that there

exists an aggravating or mitigating circumstance of a

kind, or to a degree, not adequately taken into

consideration by the Sentencing Commission in

formulating the guidelines that should result in a

sentence different from that described."

U.S.S.G. § 5K2.0, p.s. (quoting 18 U.S.C. § 3553(b)); see

U.S.S.G. Ch. 1, Pt.A. (n. 4(b)) (describing how the

sentencing court should conduct the inquiry under 18 U.S.C.

§ 3553(b)).

Therefore, I find that the argument made by the defense,

while certainly a good argument, is not an argument that

allows me to depart from the Guidelines under the rules that

we have.

I can also understand why the Sentencing Commission would

do that. Because to allow the Court to take into

consideration the nature of an innocent use would certainly

make it a fact issue in many, many cases where Congress has

chosen simply to make it a federal criminal offense for a

convicted felon to possess a firearm.

So, as much as ... one may feel sympathetic toward this

defendant under the circumstances, I do not believe that I

have the discretion to depart from the Guidelines. Because I

believe that the nature of the use that exists in this case is

within the type of things that were considered by the

Sentencing Commission in formulating the Guidelines.

For purposes of appeal, I would make it clear that I am

not exercising my discretion not to depart downward with the

idea that I could if I wanted to. I am not departing downward

because I do not feel that I have the discretion to.

....

Having said that, I have given this much consideration

and I think I am correct in this; that it is not the type

thing that this Court has authority to depart downward for.

I will, however, take the arguments made by counsel into

consideration in setting the sentence and will sentence this

defendant to the minimum sentence provided in the Guidelines.

Therefore, I overrule the objection filed by the defense

and also deny the request for a downward departure.

R3-28-30.

Although he did not depart downward, the district judge

sentenced Bristow to the minimum sentence of twelve months and a

day of imprisonment under U.S.S.G. § 2K2.1. 3 On appeal, Bristow

argues that the district court erred in concluding that it had no

authority to depart downward based on the factors involved with his

3

The applicable Sentencing Guidelines range was twelve to

eighteen months based on Bristow's base offense level of 12,

reduced two levels for acceptance of responsibility, and his

criminal history category of II.

possessing the firearm for the sole purpose of using it for

collateral.

II. DISCUSSION

We review departure decisions by district courts for abuse of

discretion. Koon v. United States, --- U.S. ----, ----, 116 S.Ct.

2035, 2046, 135 L.Ed.2d 392 (1996); United States v. Taylor, 88

F.3d 938, 945 (11th Cir.1996). In Koon, the Supreme Court

established the analysis for determining whether to depart from an

applicable Guidelines sentence:

"1) What features of this case, potentially, take it outside

the Guidelines' "heartland' and make of it a special, or

unusual, case?

2) Has the Commission forbidden departures based on those

features?

3) If not, has the Commission encouraged departures based on

those features?

4) If not, has the Commission discouraged departures based on

those features?"

Koon, --- U.S. at ----, 116 S.Ct. at 2045 (quoting United States v.

Rivera, 994 F.2d 942, 949 (1st Cir.1993)).4

4

We realize that Koon was decided on June 13, 1996, and that

Bristow was sentenced on February 8, 1996. "The sentencing court

must employ the guidelines in effect at the time the sentencing

hearing is held." United States v. Camacho, 40 F.3d 349, 354

(11th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1810, 131

L.Ed.2d 735 (1995). The United States Sentencing Commission

Guidelines Manual, effective November 1, 1995, is the operative

version for Bristow's sentencing and the one that we use. The

dispositive policy statement in this appeal, U.S.S.G. § 5K2.12,

p.s., became effective on November 1, 1987. Id.; see Williams

v. United States, 503 U.S. 193, 200-01, 112 S.Ct. 1112, 1119, 117

L.Ed.2d 341 (1992) (holding that a Sentencing Guidelines policy

statement is an authoritative interpretive guide to the meaning

of an applicable guideline). We additionally note that the same

version of the United States Sentencing Commission Guidelines

Manual was used by the Supreme Court in Koon and that the

four-part analysis for departure decisions that the Court adopts

therein is from Rivera, a First Circuit case decided on June 4,

Although the facts presented by Bristow at his sentencing to

show that his alleged innocent possession of a handgun as a

convicted felon may constitute superficial arguments for

classifying his case as special or unusual with respect to

heartland cases, clearly the underlying, motivating reason that he

possessed the firearm was for an economic purpose to assist him in

paying his financial obligations.5 Thus, his arguments for

1993. Koon, --- U.S. at ----, 116 S.Ct. at 2045. Therefore,

Koon and its analysis for departure decisions is clarifying

commentary on the Sentencing Guidelines existent at the time of

Bristow's sentencing. See Camacho, 40 F.3d at 354 ("Clarifying

amendments are amendments to the commentary of the sentencing

guidelines, and are considered by this court in interpreting the

guidelines, even when the defendant was sentenced before the

effective date of the amendments.").

5

Confronting the argument that possession of a revolver by a

convicted felon as collateral for a loan constituted aberrant

behavior justifying a downward departure, the Fifth Circuit found

this contention to be unavailing:

Even if [the defendant-appellant] possessed the gun

only as collateral, this suggests a conscious and

deliberate act and not an aberrant or exceptional one.

The Sentencing Commission has explained that

departures are appropriate, "[w]hen a court finds an

atypical case, one to which a particular guideline

linguistically applies but where conduct significantly

differs from the norm...." U.S.S.G. Ch. 1, Pt.

A(4)(b), intro. comment. [The defendant-appellant's]

possession of the firearm is not the type of

exceptional circumstance warranting departure.

United States v. Burleson, 22 F.3d 93, 94 (5th Cir.) (per

curiam), cert. denied, --- U.S. ----, 115 S.Ct. 283, 130

L.Ed.2d 199 (1994). Under a former version of the

Sentencing Guidelines, the Sixth Circuit concluded that

possession of a firearm by a convicted felon as collateral

for payment owed him did not qualify for departure as

"innocent possession" under U.S.S.G. § 2K2.1(b)(2), which

then excepted only sport or recreation possession, evidenced

by the limiting modifier "solely." United States v. Wilson,

878 F.2d 921, 924-95 (6th Cir.1989); accord United States

v. Wyckoff, 918 F.2d 925, 928 (11th Cir.1990) (per curiam).

All of these cases, however, are pre-Koon analyses.

downward departure fail under the second consideration of the Koon

analysis because "[t]he Commission considered the relevance of

economic hardship and determined that personal financial

difficulties and economic pressures upon a trade or business do not

6

warrant a decrease in sentence." U.S.S.G. § 5K2.12, p.s.; see 18

We also distinguish this case from the cases in our

circuit involving violation of the National Firearms Act, 26

U.S.C. § 5861(d), for possession of unregistered, sawed-off

shotguns, an offense separate from possession of any firearm

by a convicted felon in violation of 18 U.S.C. § 922(g)(1),

implicated in this case. See United States v. Godfrey, 22

F.3d 1048 (11th Cir.1994); United States v. Hadaway, 998

F.2d 917 (11th Cir.1993). In the former cases, the object

of the possession, the unregistered, sawed-off shotgun,

causes the possession to be unlawful. In this case, the

classification of the possessor as a convicted felon causes

the possession to be unlawful.

Section 922(g) targets a specific class of

individuals—convicted felons. It provides that they

shall not possess any firearm, regardless of the status

of the firearm.

....

Congress promulgated 18 U.S.C. § 922(g) on the

premise that convicted felons have a greater propensity

to commit crimes using firearms. It therefore

categorically sought to remove firearms from their

hands.

United States v. Mobley, 956 F.2d 450, 454 (3d Cir.1992);

see also United States v. Elder, 16 F.3d 733, 738 (7th

Cir.1994) ("We have found no case that has allowed a

defendant ... to claim as a defense that he, as a convicted

felon, took possession of an illegal weapon for the innocent

purpose of turning it over to the proper authorities.").

Significantly, Bristow has never contended that he did not

violate 18 U.S.C. § 922(g)(1) in possessing a firearm as a

convicted felon. Furthermore, he purposely lied when he

represented on the registration form that he had not been

convicted of a crime that would preclude him from obtaining

a firearm.

6

The Supreme Court has explained the relation between

guidelines and policy statements:

Construing the plain language of the Guidelines Manual

U.S.C. § 3553(a)(5) (requiring the district court when determining

a particular sentence to consider "any pertinent policy statement

issued by the Sentencing Commission ... that is in effect on the

date the defendant is sentenced" (emphasis added)). "If the

special factor is a forbidden factor, the sentencing court cannot

use it as a basis for departure." Koon, --- U.S. at ----, 116

S.Ct. at 2045; Taylor, 88 F.3d at 945. The district judge

correctly determined that he was without discretion to grant

Bristow a downward departure, although he did not base his decision

on section 5K2.12, p.s., where the Sentencing Commission

specifically states that "economic hardship" and "personal

7

financial difficulties" do not warrant a downward departure.

..., we conclude that it is an incorrect application of

the Guidelines for a district court to depart from the

applicable sentencing range based on a factor that the

Commission has already fully considered in establishing

the guideline range or, as in this case, on a factor

that the Commission has expressly rejected as an

appropriate ground for departure.

....

[T]o say that guidelines are distinct from policy

statements is not to say that their meaning is

unaffected by policy statements. Where, as here, a

policy statement prohibits a district court from taking

a specified action, the statement is an authoritative

guide to the meaning of the applicable Guideline. An

error in interpreting such a policy statement could

lead to an incorrect determination that a departure was

appropriate.

Williams, 503 U.S. at 200-01, 112 S.Ct. at 1119 (emphasis

added).

7

Although Bristow and the government presented arguments on

the issue of whether any innocent possession of a firearm by a

convicted felon, other than for collection or sporting purposes,

can ever provide the basis for a downward departure, the district

court did not reach that issue.

U.S.S.G. § 5K2.12, p.s. When a convicted felon, who is in debt

with overdue bills and child support obligations, uses a relative's

firearm as collateral for a loan, that firearm possession is

related directly to "personal financial difficulties" and clearly

is based on the type of "economic" motivation addressed in section

5K2.12, p.s. Id. Therefore, departure was precluded under the

Sentencing Guidelines and the Koon analysis.

III. CONCLUSION

On appeal, Bristow argues that the district judge should have

accorded him a downward departure in his sentence for possessing a

firearm as a convicted felon because he contends that his

possession was innocent, since he pawned the revolver as collateral

so that he could pay his debts. As we have explained, the district

judge lacked authority to depart downward because the Sentencing

Guidelines specifically forbid a downward departure for economic

reasons. Accordingly, Bristow's sentence is AFFIRMED.