United States v. Nichols , 359 F. App'x 433 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4233
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL KEITH NICHOLS,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00232-JAB-1)
Submitted: November 5, 2009 Decided: January 4, 2010
Before MOTZ, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John D. Bryson, WYATT EARLY HARRIS & WHEELER, LLP, High Point,
North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Terry M. Meinecke, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Keith Nichols pled guilty to unlawful
possession of a firearm by a convicted felon in violation of 18
U.S.C. § 922(g)(1) (2006), and was sentenced to a term of thirty
months imprisonment. He appeals his sentence, alleging that the
district court erred in failing to make a reduction under U.S.
Sentencing Guidelines Manual § 2K2.1(b)(2) (2008), for firearms
possessed solely for lawful sporting purposes or collection, and
failed to consider properly the 18 U.S.C. § 3553(a) (2006)
factors in imposing sentence. We affirm.
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38,
___, 128 S. Ct. 586, 597 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence. 128 S. Ct. at 597. After
determining whether the district court properly calculated the
defendant’s advisory guideline range, we must then consider
whether the district court considered the § 3553(a) factors,
analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 128 S. Ct.
at 596-97; United States v. Carter, 564 F.3d 325, 330 (4th Cir.
2009). Finally, we review the substantive reasonableness of the
sentence, “taking into account the totality of the
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circumstances[.]” United States v. Pauley, 511 F.3d 468, 473
(4th Cir. 2007).
Nichols first contests the district court’s decision
that the exception in § 2K2.1(b)(2) for lawful sporting purposes
or collection did not apply. Subsection (b)(2) provides that,
“[i]f 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,” the offense level should be reduced to 6. The
commentary to § 2K2.1 states that the “surrounding
circumstances” relevant to the determination 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.” USSG § 2K2.1
cmt. n.6. Nichols contends that the district court erred by
misinterpreting the term “solely.” The district court’s
interpretation of a guideline term is a legal issue reviewed de
novo. United States v. Souther, 221 F.3d 626, 628 (4th Cir.
2000).
Nichols argues that the district court overemphasized
the term “solely” by holding that his non-sporting use of one
firearm disqualified him from receiving the reduction. He
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relies on United States v. Gaines, 276 F. Supp. 2d 570, 573
(N.D. W. Va. 2003) (holding that defendant was not disqualified
simply because he pawned one of two firearms otherwise used only
for hunting). He also argues that this court should “give great
deference to the now constitutionally recognized significance of
protection,” based on the Supreme Court’s decision in District
of Columbia v. Heller, 128 S. Ct. 2783 (2008) (holding that the
Second Amendment guarantees an individual’s right to possess and
carry arms).
Gaines is not binding here, and Heller is inapposite
because it does not deal with violations of § 922(g)(1). We
held in United States v. Solomon, 274 F.3d 825, 828-29 (4th Cir.
2001), that “even a sportsman or collector is not entitled to a
reduction under § 2K2.1(b)(2) unless he possesses a firearm
exclusively for sporting or collection purposes.” In Solomon,
while not directly addressing the issue presented here, we
explicitly equated “solely,” as used in § 2K2.1(b)(2) with
“exclusively.” Therefore, we conclude that the district court
correctly applied § 2K2.1(b)(2) in this case and correctly
denied Nichols the reduction.
Nichols next contends that the district court failed
to consider the nature of his offense as required under
§ 3553(a)(1) because, although the court acknowledged that
Nichols may have believed his conduct was legal, the court did
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not find that factor sufficient to warrant a sentence of
probation. Nichols also asserts that the district court’s
ruling indicated that “it believed that considering the nature
and circumstances of the offense was limited to determining a
sentence within the guideline range.”
In § 3553(a)(1), the district court is directed to
consider “the nature and circumstances of the offense and the
history and characteristics of the defendant[.]” “When
rendering a sentence, the district court ‘must make an
individualized assessment based on the facts presented.’”
Carter, 564 F.3d at 328 (quoting Gall, 128 S. Ct. at 597).
Thus, “‘[t]he sentencing judge should set forth enough to
satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal
decision making authority.’” Id. (quoting Rita v. United
States, 551 U.S. 338, 356 (2007)); see United States v. Moulden,
478 F.3d 652, 658 (4th Cir. 2007).
Here, the court considered the nature of the offense
as required under § 3553(a)(1), as well as Nichols’ history and
characteristics. The court’s disagreement with Nichols’
position was not a procedural error. Moreover, the record
contains nothing that suggests the court believed it could not
impose a sentence below the guideline range. Before imposing
sentence, the district court noted that Nichols may have been
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ignorant of the fact that his conduct was unlawful, that he had
a consistent history of gainful employment, and that he had
accepted responsibility for his offense. The court stated that,
“[t]aking all these matters into account,” a sentence within the
guideline range was appropriate. Although the court did not
discuss all the § 3553(a) factors, it responded to the parties’
arguments and provided an individualized assessment.
Accordingly, we affirm the sentence. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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