United States v. Hunn , 344 F. App'x 920 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 17, 2009
No. 08-41169
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RICHARD ERIC HUNN,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:07-CR-232-ALL
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
A jury convicted Richard Eric Hunn of possessing an unregistered firearm
in violation of 26 U.S.C. § 5861(d) and possessing a firearm not identified by a
serial number in violation of § 5861(i). Without objection, the district court
sentenced Hunn within the advisory sentencing guidelines range to a 108-month
term of imprisonment with 12 months sentence credit for time already served on
state charges.
*
Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
No. 08-41169
Hunn argues on appeal that the evidence fails to show that the homemade
pipe bomb he possessed was a “destructive device” that is a firearm within the
meaning of § 5861. Because Hunn moved for a judgment of acquittal at the close
of the Government’s evidence, we review his challenge to the sufficiency of the
evidence de novo. See United States v. Williams, 507 F.3d 905, 908 (5th Cir.
2007), cert. denied, 128 S. Ct. 2074 (2008). We must determine whether a
reasonable jury could have found that the evidence establishes Hunn’s guilt
beyond a reasonable doubt. See United States v. Lewis, 476 F.3d 369, 377 (5th
Cir. 2007).
The National Firearms Act, 26 U.S.C. § 5841, et. seq., defines the term
“firearm” to include, inter alia, a “destructive device.” 26 U.S.C. § 5845(a)(8).
“[A]ny explosive, incendiary, or poison gas . . . bomb” is a “destructive device.”
§ 5845(f)(1)(A). A “destructive device” also includes “any combination of parts
either designed or intended for use in converting any device into a destructive
device . . . and from which a destructive device may be readily assembled.”
§ 5845(f)(3). A homemade explosive device is a prohibited destructive device
under § 5845(f) even if all of its individual components may be possessed legally.
United States v. Price, 877 F.2d 334, 337 (5th Cir. 1989). “Moreover,
unassembled components fit within the definition of a destructive device if the
defendant possesses every essential part necessary to construct an explosive
device, and if those parts may be assembled readily.” Id.; see also United States
v. Wilson, 546 F.2d 1175, 1177 (5th Cir. 1977). The record demonstrates that
Hunn’s device was designed to be a weapon, contained explosives, could ignite,
did ignite, and was a bomb. Our review of the evidence supports the jury’s
determination that Hunn possessed a “destructive device” within the meaning
of the National Firearms Act. See Lewis, 476 F.3d at 377.
Hunn also contends that his sentence is unreasonable because the district
court relied too heavily on the Sentencing Guidelines and failed to consider
2
No. 08-41169
potential mitigating factors; however, Hunn does not identify any factors that
might have warranted a lower sentence.
A defendant must object to a sentence as unreasonable in the district court
in order to preserve a substantive reasonableness challenge. United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008).
Hunn did not object to his sentence as unreasonable in the district court.
Accordingly, his argument is reviewed for plain error. Id. To show plain error,
the appellant must show an error that is clear or obvious and that affects his
substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008),
cert. denied, 129 S. Ct. 962 (2009). If the appellant makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.When the district court imposes a sentence within a properly calculated
guidelines range and gives proper weight to the Guidelines and the 18 U.S.C.
§ 3553(a) factors, this court gives “great deference to that sentence and will infer
that the judge has considered all the factors for a fair sentence set forth in the
Guidelines in light of the sentencing considerations set out in § 3553(a).” United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.) (internal quotation
marks and citation omitted), cert. denied, 129 S. Ct. 328 (2008). “A discretionary
sentence imposed within a properly calculated guidelines range is presumptively
reasonable.” Id.The district court was authorized by statute to sentence Hunn to terms of
120 months of imprisonment on each count. See 26 U.S.C. § 5871. The court
based Hunn’s sentence on the facts that this was his second conviction for an
offense involving the manufacture of a dangerous weapon; Hunn fled from the
police and engaged in a stand-off; and his conduct endangered himself, the
police, and the community. The court ordered that Hunn participate in a mental
health treatment program while in prison. As the sentencing court considered
the 18 U.S.C. § 3553(a) factors and based Hunn’s sentence on the seriousness of
3
No. 08-41169
the offense, the need to protect the public, and Hunn’s need for mental health
treatment, Hunn has not shown that the court imposed an unreasonable
sentence or that the sentence was plainly erroneous. See Baker, 538 F.3d at 332;
Campos-Maldonado, 531 F.3d at 338.
AFFIRMED.
4