United States v. Fredman , 61 F. App'x 82 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4622
LUKE R. FREDMAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Harrisonburg.
James H. Michael, Jr., Senior District Judge.
(CR-01-81)
Submitted: March 12, 2003
Decided: March 28, 2003
Before MICHAEL, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
H. David O’Donnell, Harrisonburg, Virginia, for Appellant. John L.
Brownlee, United States Attorney, Nancy S. Healey, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. FREDMAN
OPINION
PER CURIAM:
Luke R. Fredman appeals his conviction and sentence on a guilty
plea of possession of a firearm by a prohibited person, in violation of
18 U.S.C. § 922(g)(9) (2000). Specifically, Fredman asserts the dis-
trict court clearly erred in finding that he was not eligible for an
adjustment under U.S. Sentencing Guidelines Manual § 2K2.1(b)(2)
(2001), and further clearly erred in adjusting his offense level upward
by two levels pursuant to USSG § 2K2.1(b)(1)(A), on the basis that
his offense involved three firearms. For the reasons set forth below,
we find Fredman’s claims on appeal to be without merit.
According to the underlying facts of this case, Fredman pawned
three shotguns, each on a different date, in October and November
1999. Two of the firearms were stolen, and Fredman entered pleas of
guilty to grand larceny of a firearm for the two firearms in the Circuit
Court of Shenandoah County. In the present case, Fredman was
charged in connection with his possession of the firearm which was
not stolen, based upon his previous conviction of a misdemeanor
crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9)
(2000).
Fredman faced an imprisonment sentence between thirty-seven and
forty-six months, based upon total offense level of fifteen and a crimi-
nal history category of V. At the sentencing hearing, Fredman testi-
fied that he was a long-time hunter, that he never discharged the
firearms unlawfully, that he never hunted out-of-season, and that he
never threatened anyone with the three guns. He admitted he pawned
all three firearms, that two of the firearms were not his, and that he
received money for them.
The district judge declined to give Fredman the benefit of USSG
§ 2K2.1(b)(2), finding that Fredman had pawned three firearms,
including the two that were stolen, and then adjusted Fredman’s
offense level upward by two levels pursuant to USSG
§ 2K2.1(b)(1)(A). The district court sentenced Fredman to thirty-
seven months’ imprisonment, to be followed by thirty-six months of
supervised release.
UNITED STATES v. FREDMAN 3
This court reviews the district court’s application of the Sentencing
Guidelines under a due deference standard. We review the factual
findings of the district court in relation to the application of sentenc-
ing guidelines under a clearly erroneous standard, and the district
court’s legal conclusions as to the application of the guidelines de
novo. United States v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir.
1989).
The applicability of USSG § 2K2.1(b)(2) to this appeal centers
around the issue of whether Fredman possessed all three firearms
"solely" for lawful sporting purposes or collection. Fredman asserts
that the act of pawning the firearms, standing alone, is not sufficient
to exclude him from eligibility for the reduction. The Government
counters by claiming that Fredman’s act in pawning the firearms con-
stituted a use other than lawful sporting purposes or collection.
We find, without difficulty, that the plain language of
§ 2K2.1(b)(2), as well as the vast majority of the existing case law,
support the district court’s decision that Fredman is not eligible for
the § 2K2.1(b)(2), reduction because he pawned the firearms. See,
e.g., United States v. Solomon, 274 F.3d 825, 829 (4th Cir. 2001); see
also United States v. Clingan, 254 F.3d 624, 625 (6th Cir. 2001);
United States v. Miller, 224 F.3d 247, 251 (3d Cir. 2000); United
States v. Gresso, 24 F.3d 879, 881 (7th Cir. 1994). We reject Fred-
man’s attempts to invoke the rule of lenity, the intentions of the Sen-
tencing Commission, and Application Note 10 in the Commentary to
§ 2K2.1(b)(2), to support his position. Even though he may be a
sportsman, Fredman is not entitled to a reduction under
§ 2K2.1(b)(2), because he did not possess the firearms exclusively for
sporting or collection purposes.
In addition to the basis on which the district court denied Fredman
the benefit of the § 2K2.1(b)(2) reduction, we note that a second basis
exists to support the district court’s denial of Fredman’s request for
a § 2K2.1(b)(2) reduction. Specifically, to qualify for the reduction,
not only must Fredman have demonstrated that he used the firearms
solely for hunting or collection purposes, he must also have demon-
strated that he did not "otherwise unlawfully use" such firearms.
§ 2K2.1(b)(1)(2).* Because Fredman’s two criminal convictions in
*USSG § 2K2.1(b)(2) provides for a reduction "[i]f the defendant . . .
possessed all ammunition and firearms solely for lawful sporting pur-
4 UNITED STATES v. FREDMAN
state court for possession of a stolen firearm establish "unlawful use"
of those two firearms under the language of § 2K2.1(b)(2), Fredman
is precluded from the reduction.
Under either section of the guideline provision, Fredman has not
established eligibility for the USSG § 2K2.1(b)(2) reduction. The dis-
trict court did not clearly err in finding that Fredman’s act of pawning
three firearms, two of which were stolen, rendered him ineligible for
the USSG § 2K2.1(b)(2) reduction.
Fredman’s second and final claim on appeal is that the district
court clearly erred in finding that his offense involved three firearms,
and in increasing his offense level by two points under USSG
§ 2K2.1(b)(1)(A), based upon that finding. Application Note 9 to the
Commentary for § 2K2.1(b)(1)(A) provides, in pertinent part, that the
court should count those firearms unlawfully possessed for purposes
of calculating the number of firearms under subsection (b)(1). Fur-
ther, for the purposes of enhancement under § 2K2.1(b)(1), courts
evaluate "relevant conduct" to assess the number of firearms that
properly are included. See, e.g., United States v. Santoro, 159 F.3d
318, 321 (7th Cir. 1998); see also USSG § 1B1.1, comment. n.1(l).
Here, Fredman does not contest the fact that he possessed the three
firearms during the same general time period. Because he was a pro-
hibited person during the time of his possession of each of the three
firearms, we find proper the district court’s increase in Fredman’s
offense level under § 2K2.1(b)(1)(A). Fredman’s claim on appeal that
the fact that one of the firearms he pawned was not stolen is not rele-
vant to the district court’s assessment of the § 2K2.1(b)(1)(A)
enhancement.
Accordingly, we affirm Fredman’s conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
poses or collection, and did not unlawfully discharge or otherwise
unlawfully use such firearms or ammunition." (Emphasis added).