United States v. Dewitt , 439 F. App'x 761 ( 2011 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    October 25, 2011
    UNITED STATES COURT OF APPEALS
    Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    __________________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    No. 11-6057
    v.                                            (D.Ct. No. 5:10-CR-00192-M-1)
    (W.D. Okla.)
    PAMELA JOYCE DEWITT,
    Defendant-Appellant.
    ______________________________
    ORDER AND JUDGMENT *
    Before ANDERSON, Circuit Judge, and BARRETT and BRORBY, Senior
    Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination
    of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    Appellant Pamela Joyce Dewitt appeals her thirty-month sentence, arguing
    *
    This order and judgment is not binding precedent except under the
    doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    the district court erred when it determined she did not qualify for a reduction in
    her sentence under United States Sentencing Guidelines (“Guidelines” or
    “U.S.S.G.”) § 2K2.1(b)(2), known as the “sporting purpose exception,” for her
    possession as a felon of a firearm. We exercise our jurisdiction pursuant to 
    18 U.S.C. § 3742
    (a) and 
    28 U.S.C. § 1291
    , and affirm Ms. Dewitt’s sentence.
    I. Factual Background
    On October 30, 2009, at approximately 11:00 p.m., two Oklahoma game
    wardens on night patrol in a rural area saw a small pickup truck with a bright
    spotlight shining through the driver’s side window into fields and the tree line.
    The wardens watched the pickup travel one-half mile, with the spotlight
    continuing to illuminate fields and trees, before it stopped and the driver, Mr.
    Vaught, exited. When one of the wardens asked if he had guns, Mr. Vaught
    informed them the pickup contained a loaded gun. The other warden then
    approached the passenger, Ms. Dewitt, who remained in the vehicle, and ordered
    her to exit. She hesitated and refused the warden’s multiple requests to show her
    hands, which were under a coat laid across her lap; her hands were also
    “fidgeting” underneath the coat. When she did attempt to leave the vehicle, the
    warden saw a lever-action .22 magnum caliber Winchester rifle on her lap under
    the coat. The rifle contained a live round of ammunition. Later, when searching
    the vehicle, wardens also found a Vector 1,000,000 candle-power spotlight and
    -2-
    thirty-five rounds of .22 WMR jacketed hollow-point ammunition.
    On questioning, Ms. Dewitt used her sister’s name to identify herself and
    failed to produce any other identification. After the wardens checked the name of
    Ms. Dewitt’s sister and determined her record was clear, they issued Ms. Dewitt
    citations in her sister’s name for illegal “headlighting” and hunting by aid of
    motorized vehicle and released her. However, the wardens arrested Mr. Vaught
    on discovering the Oklahoma Department of Corrections had issued a warrant for
    his arrest for violation of his parole and for possession of a firearm by a felon.
    A few days later, on November 2, 2009, one of the game wardens received
    information on Ms. Dewitt’s true identity, after which he verified she had
    outstanding warrants in Cleveland County, Oklahoma, and discovered her status
    as a fugitive whom the United States Marshal Service had spent numerous hours
    trying to find. On November 4, 2009, deputies with the United States Marshal
    Service found Ms. Dewitt and arrested her on the outstanding warrants.
    II. Procedural Background
    Thereafter, a federal grand jury indicted Ms. Dewitt for being a felon in
    illegal possession of a firearm in violation of 
    18 U.S.C. § 922
    (g)(1). After Ms.
    Dewitt pled guilty and the district court accepted her plea, a probation officer
    -3-
    prepared a presentence report, calculating her sentence under the applicable 2010
    Guidelines. The probation officer set Ms. Dewitt’s base offense level at 14
    pursuant to U.S.S.G. § 2K2.1(a)(6)(A) for possession of a firearm by a felon. The
    probation officer also recommended a two-level offense reduction for acceptance
    of responsibility, for a total offense level of twelve. A total offense level of
    twelve, together with Ms. Dewitt’s criminal history category of VI, resulted in a
    recommended advisory Guidelines range of thirty to thirty-seven months
    imprisonment. The probation officer also found no factors warranting a departure
    from the Guidelines calculations or a variance under 
    18 U.S.C. § 3553
    (a).
    Ms. Dewitt filed formal objections to the presentence report, including an
    objection to the probation officer’s failure to apply a reduction in her offense
    level based on the “sporting purpose exception” under U.S.S.G. § 2K2.1(b)(2). In
    support, she argued she did not discharge or otherwise unlawfully use a firearm or
    ammunition, Mr. Vaught had retrieved the hunting rifle from someone who had
    borrowed it and he did not intend to use it to hunt that evening, and Mr. Vaught
    used the spotlight only to show her raccoons along the side of the road.
    At sentencing, Ms. Dewitt renewed her request for the § 2K2.1(b)(2)
    sporting purpose exception, testifying Mr. Vaught used the spotlight “[j]ust to
    show [her] the coons”; neither she nor Mr. Vaught intended to use the loaded rifle
    -4-
    that evening; and she was aware Mr. Vaught hunted raccoons and was a member
    of a “coon club” comprised of hunters, suggesting he owned the rifle for lawful
    hunting purposes. In response, the government offered the testimony of one of
    the wardens, who explained the use of a bright light and possession of a loaded
    firearm is prima facie evidence in Oklahoma of illegal “headlighting” and that
    hunting with the aid of a motorized vehicle is also illegal in Oklahoma, including
    hunting for raccoons from a vehicle. He also explained that even though it is
    lawful in Oklahoma to hunt raccoons on foot, it was not raccoon hunting season at
    the time they stopped Mr. Vaught and Ms. Dewitt. While the warden testified he
    did not hear a firearm discharge from the vehicle, he verified Ms. Dewitt had the
    fully-loaded rifle concealed on her lap.
    After considering the evidence presented and hearing the parties’
    arguments, the district court found a reduction under § 2K2.1(b)(2) inapplicable
    to the facts presented, stating it found Ms. Dewitt had “not shown that she
    possessed the firearm at issue solely for lawful sporting purposes and did not
    otherwise unlawfully use the firearm.” It then sentenced Ms. Dewitt to thirty
    months imprisonment.
    III. Discussion
    On appeal, Ms. Dewitt presents the following issue: “Did the district court
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    commit legal and factual error by denying Ms. Dewitt’s request for a reduction in
    the advisory sentencing Guideline[s] offense level calculation based on the
    codefendant’s possession of the firearm for lawful sporting purposes?” With
    respect to the district court’s alleged “factual error,” Ms. Dewitt contends it was
    reasonable for her to associate the .22-caliber Winchester rifle with hunting and
    conclude Mr. Vaught would transport such a firearm in his vehicle for lawful
    hunting or sporting purposes, given his history as a hunter and his association
    with a hunting club. She also renews her contention Mr. Vaught used the
    spotlight to show her raccoons along the road and never observed him using or
    attempting to use the firearm for hunting that night, as bolstered by the warden’s
    testimony he never heard a firearm discharge. She also argues she was unfamiliar
    with the details of Mr. Vaught’s criminal history but the fact he was a felon in
    possession should not diminish her assertion he possessed the rifle solely for
    sport.
    Because the facts establish Mr. Vaught possessed the firearm for lawful
    sporting purposes, she contends, the district court committed legal error in not
    applying a six-level reduction under U.S.S.G. § 2K2.1(b)(2) to her offense level,
    which would result in a Guidelines range of twelve to eighteen months
    incarceration. Relying on United States v. Mojica, 
    214 F.3d 1169
     (10th Cir.
    2000), she also argues “[t]he district court erred by finding [she] had to show her
    -6-
    possession of the firearm was for lawful sporting purposes and she did not
    unlawfully discharge or unlawfully use the firearm.” She contends that because
    Mr. Vaught, the owner of the rifle, possessed it for a sporting purpose, she does
    not need to prove she also possessed it for a lawful sporting purpose in order to
    receive the reduction.
    We review sentences under a reasonableness standard, which encompasses
    both the reasonableness of the length of the sentence as well as the method by
    which the sentence was calculated – the latter of which Ms. Dewitt appeals. See
    United States v. Kristl, 
    437 F.3d 1050
    , 1053-55 (10th Cir. 2006). As she asserts,
    a sentence is unreasonable if it is based on an improper determination of the
    Guidelines range. See 
    id. at 1055
    . In determining if her Guidelines range was
    correctly calculated, “we review factual findings for clear error and legal
    determinations de novo.” United States v. Sanders, 
    449 F.3d 1087
    , 1090 (10th
    Cir. 2006) (quotation marks omitted). In so doing, we give due deference to the
    district court’s application of the Guidelines to the facts. See United States v.
    Maestas, 
    642 F.3d 1315
    , 1319 (10th Cir. 2011). “ A finding of fact is clearly
    erroneous only if it is without factual support in the record or if the appellate
    court, after reviewing all of the evidence, is left with a definite and firm
    conviction that a mistake has been made.” 
    Id.
     (quotation marks omitted). In
    addition, we will not review on appeal a district court’s credibility determinations
    -7-
    for sentencing purposes. See United States v. Hanson, 
    534 F.3d 1315
    , 1319 (10th
    Cir. 2008).
    Here, the contested Guidelines sporting purpose exception states: “If the
    defendant ... possessed all ammunition and firearms solely for lawful sporting
    purposes or collection, and did not unlawfully discharge or otherwise unlawfully
    use such firearms or ammunition, decrease the offense level determined ... to
    level 6.” U.S.S.G. § 2K2.1(b)(2). Based on this provision, we have said a
    defendant must show two things for the Guideline to apply: (1) she possessed all
    ammunition and firearms solely for lawful sporting purposes or collection, and (2)
    she did not unlawfully discharge or otherwise unlawfully use such firearms or
    ammunition. See Sanders, 
    449 F.3d at 1090
    . These elements are conjunctive, and
    therefore, the burden is on the defendant to show both by a preponderance of the
    evidence. See United States v. Dudley, 
    62 F.3d 1275
    , 1276 (10th Cir. 1995).
    In addition, commentary to § 2K2.1 provides:
    Under subsection (b)(2), ‘lawful sporting purposes or collection’ as
    determined by the surrounding circumstances, provides for a
    reduction to an offense level of 6. Relevant surrounding
    circumstances include the number and type of firearms, the amount
    and type of ammunition, the location and circumstances of
    possession and actual use, the nature of the defendant’s criminal
    history (e.g., prior convictions for offenses involving firearms), and
    the extent to which possession was restricted by local law.
    -8-
    U.S.S.G. § 2K2.1, cmt. n.6.
    Here, the record supports the district court’s determination Ms. Dewitt failed to
    carry her burden in showing she possessed the firearm at issue solely for a lawful
    sporting purpose. To begin, it is clear the district court considered the
    circumstances presented, including the fact Mr. Vaught and Ms. Dewitt were
    observed in a pickup late at night using a 1,000,000 candle-power spotlight out of
    the window to search fields and the treeline in a rural area while Ms. Dewitt held
    a loaded rifle on her lap and the vehicle contained thirty-five rounds of .22 WMR
    jacketed hollow-point ammunition. While Ms. Dewitt claims Mr. Vaught merely
    retrieved the gun from someone who borrowed it from him and they were not
    hunting at that time, she fails to explain why she held the rifle on her lap, why the
    rifle was loaded, and why the vehicle contained such a large number of rounds of
    ammunition. In addition, it is evident the district court found incredible Ms.
    Dewitt’s testimony that they only used the spotlight to look for raccoons and
    credited the warden’s testimony that use of a bright light and possession of a
    loaded firearm is considered prima facie evidence of illegal “headlighting.” We
    will not review such credibility determinations on appeal. Because the district
    court’s finding Ms. Dewitt and Mr. Vaught were hunting has factual support in
    the record, we cannot say it is clearly erroneous nor are we left with a definite
    and firm conviction a mistake has been made.
    -9-
    Having concluded the district court did not err in finding Ms. Dewitt and
    Mr. Vaught were hunting, we further conclude, as did the district court, that they
    were hunting illegally in violation of Oklahoma’s prohibition against
    “headlighting,” 29 Okla. Stat. § 5-203.1(A), and hunting by aid of motorized
    vehicle, 29 Okla. Stat. § 5-203.1(D), as evidenced by the citations issued to Ms.
    Dewitt – albeit in another name. To the extent Mr. Vaught and Ms. Dewitt were
    hunting for the very raccoons Ms. Dewitt claims they were looking for, they were
    also illegally hunting out-of-season, as explained by the warden who testified at
    the sentencing hearing.
    Having determined Ms. Dewitt and Mr. Vaught were hunting illegally, and
    giving due deference to the district court’s application of the Guidelines to the
    facts, we conclude the district court did not err in determining § 2K2.1(b)(2) did
    not apply for the purpose of giving Ms. Dewitt an offense-level reduction.
    Instead, the district court reasonably concluded such a reduction applies only
    when a defendant possesses ammunition and firearms solely for lawful sporting
    purposes. See U.S.S.G. § 2K2.1(b)(2). Given Ms. Dewitt and Mr. Vaught
    possessed the rifle for an unlawful sporting purpose at the time the wardens
    spotted them, not only does § 2K2.1(b)(2) not apply, but it is irrelevant under the
    circumstances presented whether Mr. Vaught belonged to a coon hunting club or
    previously possessed or used the rifle for the purpose of lawfully hunting
    -10-
    raccoons and other animals. Accordingly, we reject Ms. Dewitt’s contention Mr.
    Vaught possessed the rifle at the time of his arrest for a lawful sporting purpose
    and that she does not need to prove she possessed it for a lawful sporting purpose
    in order to receive a reduction.
    We also reject Ms. Dewitt’s contention our holding in Mojica applies here.
    In that case, we assumed, as did the district court, that the defendant-felon was
    returning an unloaded shotgun and ammunition to their owner after use by his
    brother for a lawful sporting purpose. Id. at 1172-73. Under those circumstances,
    we held the constructive and benign possession of a firearm used solely for
    another’s lawful sporting purpose may be a mitigating factor when considering a
    reduction and remanded the case to the district court for such consideration. Id.
    at 1173-74. Here, it is clear Ms. Dewitt possessed the loaded rifle on her lap at
    the time in question for the purpose of illegally hunting, and therefore, the
    circumstances presented are unlike those in Mojica.
    While Ms. Dewitt claims she did not know Mr. Vaught was a felon, such a
    claim is also irrelevant because Ms. Dewitt herself was a felon who was
    prohibited from possessing a firearm except for a lawful sporting purpose. She
    clearly possessed the firearm when she had it on her lap, and the illegality of her
    activities is demonstrated, not only by the facts previously cited, but by her
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    compulsion to conceal the weapon and her hesitation when ordered to exit the
    vehicle – regardless of whether her companion, Mr. Vaught, was more
    forthcoming in admitting the vehicle contained a loaded gun.
    Because Ms. Dewitt failed to prove by a preponderance of the evidence the
    first conjunctive element required for a § 2K2.1(b)(2) reduction, i.e., possession
    of all ammunition and firearms solely for lawful sporting purposes or collection,
    we need not consider the other conjunctive element required for application of
    § 2K2.1(b)(2), i.e., whether she carried her burden in showing she did not
    unlawfully discharge or otherwise unlawfully use such firearms or ammunition.
    See Sanders, 
    449 F.3d at 1090
    . For these reasons, the district court did not err in
    failing to apply such a reduction, and Ms. Dewitt’s thirty-month sentence is not
    procedurally unreasonable.
    IV. Conclusion
    Accordingly, we AFFIRM Ms. Dewitt’s sentence.
    Entered by the Court:
    WADE BRORBY
    United States Circuit Judge
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Document Info

Docket Number: 11-6057

Citation Numbers: 439 F. App'x 761

Judges: Anderson, Barrett, Brorby

Filed Date: 10/25/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024