United States v. Stump ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4279
WILLIAM DARRELL STUMP, II,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4283
WILLIAM DARRELL STUMP, II,
Defendant-Appellant.
Appeals from the United States District Court
for the Western District of Virginia, at Roanoke.
Jackson L. Kiser, Chief District Judge.
(CR-94-109-R)
Submitted: December 10, 1996
Decided: January 21, 1997
Before HALL, WILKINS, and LUTTIG, Circuit Judges.
_________________________________________________________________
No. 96-4279 affirmed and No. 96-4283 vacated and remanded by
unpublished per curiam opinion.
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COUNSEL
William Darrell Stump, II, Appellant Pro Se. Donald Ray Wolthuis,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Vir-
ginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
William Darrell Stump, II, admitted at trial that he fired rifles
equipped with homemade silencers on property owned by his father
in May 1994. Stump was convicted by a jury of two counts of pos-
sessing illegal silencers, 26 U.S.C. § 5861(d), (i) (1994). The impris-
onment range under the Sentencing Guidelines* was calculated to be
twenty-seven to thirty-three months. The district court sentenced
Stump to two months imprisonment. Stump filed a timely appeal
challenging the constitutionality of his convictions (No. 96-4279), and
the Government filed a timely cross-appeal challenging the district
court's downward departure from the Sentencing Guidelines (No. 96-
4283).
Stump argues that his convictions were unconstitutional because
the Constitution does not provide for the existence of federal courts
(other than the Supreme Court) or federal law enforcement agencies.
This argument is without merit, and Stump's convictions are hereby
affirmed.
We find, however, that the district court erred in departing down-
ward from the Sentencing Guidelines. The district court based its rul-
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov. 1,
1995).
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ing on evidence which showed that Stump fired the silenced rifles for
a sporting purpose (i.e., target practice) and only"possessed" the
silencers for a brief amount of time. The district court ruled that the
Sentencing Commission could not have foreseen such a"bare-boned"
violation of the law. We disagree.
A trial judge's decision to depart from the Sentencing Guidelines
in an atypical case is reviewed for an abuse of discretion. Koon v.
United States, ___ U.S. ___, 64 U.S.L.W. 4512 (U.S. June 13, 1996)
(Nos. 94-1664, 94-8842); United States v. Rybicki, ___ F.3d ___,
1996 WL 544463 (4th Cir. Sept. 26, 1996) (Nos. 94-5360, 94-5362).
Applying the standards set forth in Koon and Rybicki, we hold that the
district court abused its discretion in departing downward from the
Sentencing Guidelines. Specifically, we hold that the district court's
finding that Stump possessed the silencers for a sporting purpose to
be a "forbidden" factor under the Sentencing Guidelines. We further
hold that the plain language of the Sentencing Guidelines and the
applicable statutes contradict the district court's imposition of a time
element on the possession of illegal silencers. We believe that Con-
gress intended to prohibit the possession of illegal firearms (including
silencers) without regard to the amount of time they were in the
defendant's possession. See United States v. Ranney, 524 F.2d 830,
833 (7th Cir. 1975), cert. denied, 424 U.S. 922 (1976) (expressly
rejecting the notion that § 5861(i) allows for the possession of illegal
firearms for a "reasonable period").
Accordingly, we affirm Stump's convictions (No. 96-4279), but we
vacate the sentence and remand the case for a new sentencing hearing
in accordance with the Sentencing Guidelines (No. 96-4283). Stump's
motion for oral argument is denied. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
material before the court and argument would not aid the decisional
process.
No. 96-4279 - AFFIRMED
No. 96-4283 - VACATED AND REMANDED
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