United States v. Gifford ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 15, 2008
No. 05-41322
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ROBERT LEROY GIFFORD
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:04-CR-115-1
Before JOLLY, PRADO and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Robert Leroy Gifford appeals the 27-month sentence he received following
his conviction on seven counts of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g). He argues that the district court erred in
refusing to award him an offense-level reduction, pursuant to U.S.S.G.
§ 2K2.1(b)(2).
We note that Gifford has served his term of imprisonment and has been
released from federal custody. Nevertheless, because he is currently serving a
*
Pursuant to 5TH CIR. 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should not be published and is not precedent except under the limited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 5TH CIR. R. 47.5.4.
No. 05-41322
three-year term of supervised release, which could be reduced on resentencing,
the instant appeal is not moot. Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir.
2006).
Gifford asserts that he was entitled to the § 2K2.1(b)(2) reduction because
his father lawfully collected the firearms he possessed, and his possession was
simply as caretaker for his family, holding the firearms for transfer to his
mother. He contends that the district court erred in concluding that he was
required to show that he personally used the firearms for collection or hunting.
Gifford urges that his “[m]omentary exploitation of a rifle’s inherent monetary
value . . . should not, ipso facto, preclude application of the provision . . . .”
Because the district court accepted that Gifford’s actual possession
consisted of his pawning firearms that had been collected by his father, whether
Gifford was entitled to the reduction involves “application of the facts to the
guidelines,” which “is a question of law subject to de novo review.” United States
v. Leleaux, 240 Fed. App’x 666, 668 (5th Cir. 2007); see United States v. Villegas,
404 F.3d 355, 359 (5th Cir. 2005). The district court did not err in determining
that Gifford had not demonstrated an entitlement to the § 2K2.1(b)(2) offense-
level reduction. See United States v. Shell, 972 F.2d 548, 550 (5th Cir. 1992); see
also Leleaux, 240 Fed. App’x at 669-70. Gifford inherited his father’s firearms
collection, then pawned numerous firearms over the course of several months,
an act inconsistent with his stated goal of serving only as caretaker for the
collection until it could be transferred to his mother. Moreover, as Gifford
admitted, his pawning was done for the purpose of obtaining money, which is not
for use in sporting or collection. Although Gifford’s criminal past did not include
firearms offenses, the PSR noted he had difficulty managing his anger and a
lengthy history of substance abuse. Thus, the reduction was unwarranted. See
§ 2K2.1(b)(2) & comment. (n.6); see also Shell, 972 F.2d at 552; Leleaux, 240 Fed.
App’x at 669-70.
AFFIRMED.
2