United States v. Ricky Fines ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-1069 & 08-1089
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L EROY F. M ILLER and R ICKY L. F INES,
Defendants-Appellants.
Appeals from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:04-cr-138—Robert L. Miller, Jr., Chief Judge, and
Allen Sharp, Judge.
A RGUED S EPTEMBER 23, 2008—D ECIDED O CTOBER 27, 2008
Before E ASTERBROOK, Chief Judge, and K ANNE and
T INDER, Circuit Judges.
E ASTERBROOK, Chief Judge. Leroy Miller took in Ricky
Fines as a boarder at his farm. Both Miller and Fines are
interested in guns. They bought, refurbished, and sold
many weapons while Fines lived in Miller’s house. Both
men cleaned guns on the same workbench—whether as
a joint venture, or each working on individually owned
weapons, is disputed but not important. When federal
2 Nos. 08-1069 & 08-1089
agents conducted a search in April 2004, they found three
weapons in the house and 31 in a shed nearby. The guns
in the shed had been wiped clean of fingerprints and
wrapped in blankets; the jury was entitled to infer
that Fines and Miller had moved the guns to the shed
in anticipation of a search. And why should they fear a
search? Because Fines had a felony conviction, and
Miller (whose own record was clean) knew it. A jury
convicted Fines of possessing weapons despite his con-
viction, in violation of 18 U.S.C. §922(g)(1), and Miller of
aiding and abetting Fines’s illegal possession. See 18 U.S.C.
§2. Fines was sentenced to 48 months’ imprisonment
and Miller to 10 months.
Miller contends that he is innocent, because he did not
learn of Fines’s criminal history until shortly before the
search, and that after learning of Fines’s conviction he
did not allow Fines to handle guns—indeed, that the
guns had been moved from the house to the shed before
Fines became a boarder. In an interview with federal
agents, however, Miller admitted that he learned of
Fines’s conviction in November 2002, give or take a few
months. Evidence about the weapons’ condition allowed
the jury to infer that they had not entered the shed until
the spring of 2004. (The shed was leaky and dirty, yet
the weapons were in pristine condition.) Three guns
were in the farmhouse when federal agents arrived. A
sensible jury could find that Miller permitted Fines to
work on guns with Miller’s tools after November 2002.
This is enough evidence to support the conviction for
aiding and abetting; the record has additional evidence,
but we need not canvass everything.
Nos. 08-1069 & 08-1089 3
The evidence is also quite sufficient to sup-
port Fines’s conviction. He maintains that the district
judge should not have admitted two pictures of him,
saluting, while sitting in a chair under a gun rack, or a
folder of receipts showing that Fines had ordered and
paid for gun parts. He argues that the pictures do not
depict the condition of the room when the agents
searched it, but that’s beside the point. Fines is guilty if
he possessed guns any time during five years (the
period of limitations) before the indictment. The pictures
are relevant because they show that guns and Fines
were in the room together, which supports an inference
that he possessed them. The receipts were hearsay if
offered for the truth of the sellers’ (implied) assertions
that the parts had been delivered as ordered, but to the
extent they embodied Fines’s statements they were ad-
missible under Fed. R. Evid. 801(d)(2) as admissions, and
to the extent that they reflected the sellers’ business
records they were admissible under Fed. R. Evid. 803(6).
They were admissible, moreover, simply to show that
Fines (in whose room the documents were found) paid
for components of weapons. This undermined his
defense that only Miller had anything to do with the
guns. See United States v. Serrano, 434 F.3d 1003 (7th Cir.
2006).
Miller’s sentence is the final subject in dispute. He
maintains that the sentence should be reduced under
U.S.S.G. §2K2.1(b)(2):
If the defendant . . . possessed all ammunition and
firearms solely for lawful sporting purposes or
4 Nos. 08-1069 & 08-1089
collection, and did not unlawfully discharge or
otherwise unlawfully use such firearms or ammu-
nition, decrease the offense level determined above
to level 6.
Miller describes himself as a collector and his guns as
“entry-level collectables”. The district court held that
Miller could not be treated as a collector because he
refurbished some of the guns, sold them, and used the
proceeds to buy others. The judge stated that once
Miller sold a gun, “even if he did so as a step toward
improving the collection, he no longer possessed it for
collection. I don’t think that the guideline reduction
contemplates sales for collection, as distinct from acquisi-
tion, or simple continued possession.”
The sale of a single weapon does not inevitably prevent
a person from being a collector under §2K2.1(b)(2). Collec-
tors—whether of coins, stamps, baseball cards, comic
books, paintings, or guns—regularly buy and sell in
order to shed duplicates or less desirable items and
acquire replacements that they value more highly. The
text of §2K2.1(b)(2) does not exclude from its coverage
collectors who sell some holdings as a means of im-
proving the collection as a whole, any more than it ex-
cludes those who buy or barter with that goal in view.
Collectors who use markets are still collectors. Cf. United
States v. Collins, 313 F.3d 1251, 1255 (10th Cir. 2002) (same
proposition with respect to guns used for sporting).
Application Note 6 to §2K2.1 says that “lawful sporting
purposes or collection” must be ascertained from the
surrounding circumstances and that
Nos. 08-1069 & 08-1089 5
[r]elevant 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 defen-
dant’s criminal history (e.g., prior convictions for
offenses involving firearms), and the extent to
which possession was restricted by local law.
The note does not identify the use of market transactions
as a circumstance disqualifying persons from the benefit
of §2K2.1(b)(2). Nor does any appellate decision hold
that selling to improve a collection makes §2K2.1(b)(2)
inapplicable. We conclude that a person who sells weapons
can remain a collector, unless the sales are so extensive
that the defendant becomes a dealer (a person who
trades for profit) rather than a collector (a person who
trades for betterment of his holdings). See United States
v. Clingan, 254 F.3d 624 (6th Cir. 2001). Being an
unlicensed dealer is an aggravating rather than a mitigat-
ing circumstance.
The United States contends that Miller refurbished and
sold guns for income, and that what he calls a collection is
better understood as inventory. The district court did not
make findings on questions that would be pertinent to
this distinction, such as whether Miller continually im-
proved the scope and quality of his holdings or instead
replaced the weapons he sold with similar ones in order
to meet demand. Nor did the judge make findings perti-
nent to the prosecutor’s argument that bona fide
collectors do not keep their prizes in leaky sheds. It is
unnecessary to remand for findings on these topics,
6 Nos. 08-1069 & 08-1089
because §2K2.1(b)(2) applies only when “all” of the fire-
arms were used for sporting or collection.
Agents found three operational weapons in the house.
One of these, a loaded Mossberg shotgun, was in the
downstairs corridor, immediately outside Fines’s door.
Miller concedes that he kept the shotgun for security
against intruders, rather than as part of a collection.
It follows that §2K2.1(b)(2) does not reduce Miller’s
offense level. See United States v. Hanson, 534 F.3d 1315(10th Cir. 2008); United States v. Bertling, 510 F.3d 804, 811
(8th Cir. 2007); United States v. Shell, 972 F.2d 548 (5th
Cir. 1992).
A FFIRMED
10-27-08