United States v. Ball ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS OCT 15 1999
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-5092
v. (D.C. No. 97-CR-129-K)
(N. Dist. Okla.)
JESSE ALFRED BALL,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See F ED . R. A PP . P. 34(f); 10th Cir. R. 34.1(A)(2). The case is
therefore ordered submitted without oral argument.
Defendant Jessie Alfred Ball, Jr. appeals the district court’s judgment
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
imposing a sixty-four month sentence after he pled guilty to one count of being a
felon in possession of a firearm. We affirm.
Mr. Ball was arrested during a methamphetamine laboratory investigation
conducted by state and federal agents. He consented to a search of his home,
where police found a number of weapons which Mr. Ball claims were part of his
late father’s collection. Because of his status as a convicted felon, 1 Mr. Ball was
charged with violating 18 U.S.C. § 922(g)(1). He pled guilty and was sentenced
to 64 months in prison.
In calculating the sentence under the U.S. Sentencing Guidelines, the
district court applied a four-level increase to Mr. Ball’s offense level based on the
presentence investigation report’s finding that he had fifteen “firearms” in his
possession. U.S. S ENTENCING G UIDELINES M ANUAL § 2K2.1(b)(1)(D) (four level
enhancement for offenses involving 13 to 24 firearms). Mr. Ball did not object in
district court to either the finding of fifteen “firearms” or to the application of the
four-level increase on the basis of that finding.
Mr. Ball now contends the district court erroneously applied the guidelines
to include items that do not meet the definition of “firearms” as set forth in 18
U.S.C. § 921(a)(3). He asserts that at least five of the items the court considered
in computing his sentence were merely combinations of gun components not
1
Mr. Ball committed a murder in 1978, to which he pled guilty in 1985.
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covered under the statute. Because he failed to object to the characterization of
the items as “firearms,” we review the district court’s application of the
guidelines for plain error. See F ED . R. C RIM . P. 52(b); United States v. Ivy, 83
F.3d 1266, 1297 (10th Cir. 1996) (“[I]f a defendant fails to object to his
presentence report, he waives his right to challenge the district court’s reliance on
it, unless the district court’s decision to do so amounts to plain error.”); United
States v. Ciapponi, 77 F.3d 1247, 1252 (10th Cir. 1996).
Under the plain error standard, “[d]efendant must show: (1) an ‘error,’ (2)
that is ‘plain,’ which means ‘clear’ or ‘obvious’ under current law, and (3) that
‘affect[s] substantial rights.’” United States v. Fabiano, 169 F.3d 1299, 1303
(10th Cir. 1999) (quoting Johnson v. United States, 520 U.S. 461 (1997)). See
also United States v. Olano, 507 U.S. 725, 732 (1993). He faces two large
hurdles in making this showing.
First, it is not clear that the district court’s application of the guidelines
was in error. The gun components Mr. Ball claims were incorrectly counted as
“firearms” include: one rifle barrel with receiver assembly, two barrels with
receivers but no stocks, and one shotgun without a stock. The commentary to the
guidelines defines “firearm,” in relevant part, as: “(i) any weapon . . . which will,
or is designed to, or may readily be converted to, expel a projectile by the action
of an explosive; (ii) the frame or receiver of any such weapon; . . . .” See USSG
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§ 2K2.1, commentary (n.1); 18 U.S.C. § 921(a)(3). This court professes little
knowledge of weaponry. We do not know, for instance, whether the component
combinations Mr. Ball possessed are “designed to” or “may readily be converted
to” expel projectiles by the action of explosives. Nor do we know the proper
characterization of “receiver assemblies,” or how the components of “barrels” and
“stocks” relate to the guideline definition of “firearm.”
These are factual disputes, and “when a defendant fails to raise [factual
inaccuracies in the presentence report] below, we have no factual record by which
to review the application of the guidelines.” United States v. Saucedo, 950 F.2d
1508, 1518 (10th Cir. 1991), overruled on other grounds, Stinson v. United
States, 508 U.S. 36 (1993). Morever, we have held on numerous occasions that “a
factual dispute concerning the applicability of a particular guideline, not brought
to the attention of the district court, does not rise to the level of plain error.”
Saucedo, 950 F.2d at 1518. Accord United States v. Richardson, 86 F.3d 1537,
1554 (10th Cir. 1996) (factual dispute regarding presentence report’s calculation
of the type of methamphetamine defendant possessed not plain error); United
States v. Jones, 80 F.3d 436, 438-39 (10th Cir. 1996) (disputes over presentence
report’s conclusions regarding type of methamphetamine, nature of previous
convictions, and acceptance of responsibility were factual and not plain error);
United States v. Windle, 74 F.3d 997, 1001 (10th Cir. 1996) (factual dispute over
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presentence report’s conclusion that gun defendant possessed was stolen not plain
error).
Second, we have been unable to find, and Mr. Ball admits that he is unable
to cite us to, a single case in which this circuit construes the application of the
guideline definition of “firearm.” As such, by definition, any error committed by
the district court could not have been plain, “clear,” or “obvious” under current
law.
Defendant’s Motion for Leave to File a Second Supplemental Opening
Brief is DENIED. The sentence of the district court is AFFIRMED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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