United States v. DiIorio ( 1995 )

USCA1 Opinion

          November 22, 1995     [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT







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        No. 95-1138



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                 DENNIS JOHN DiIORIO,



                                Defendant, Appellant.





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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF RHODE ISLAND





                     [Hon. Ernest C. Torres, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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            Orlando A. Andreoni on brief for appellant.
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            Sheldon Whitehouse,  United States  Attorney, Stephanie S.  Browne
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        and  Craig N. Moore, Assistant  United States Attorneys,  on brief for
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        appellee.





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                      Per  Curiam.  Defendant-appellant Dennis J. DiIorio
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            pled guilty to a three-count indictment, including possession



            of  a firearm  by a  convicted felon.   He  appeals from  his



            sentence  on the sole ground that the district court erred in



            denying  a reduction  in his  base offense  level because  he



            "possessed  all ammunition  and  firearms  solely for  lawful



            sporting purposes  or  collection.  . .  ."    United  States



            Sentencing   Guidelines,  2K2.1(b)(2) (1994).   The burden is



            on  the defendant to prove by a preponderance of the evidence



            that  he  is entitled  to the  reduction.   United  States v.
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            Cousens, 942 F.2d  800, 802 (1st Cir. 1991).   "We review for
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            clear error the district court's factual findings with regard



            to  the intended  purposes of  purchasing and  possessing the



            firearms at issue." Id.
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                      Having carefully reviewed the record, including the



            transcript from  the sentencing hearing, we  conclude that it



            was  not  clear error  for the  district  court to  find that



            appellant failed  to prove by a preponderance of the evidence



            that he possessed the gun and  ammunition solely for sporting



            or collection purposes.   The sentencing court's decision not



            to  accept DiIorio's  version  of the  relevant  facts was  a



            credibility determination best  made by  the district  court,



            rather than by this court.  See United States v. Wheelwright,
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            918 F.2d 226, 228 (1st Cir. 1990).   Accordingly, appellant's



            sentence is affirmed.  See Loc. R. 27.1.
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