United States v. Dennis Santomauro ( 1996 )

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No. 95-2888
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa
Dennis L. Santomauro, *
* [UNPUBLISHED]
Appellant. *
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Submitted: March 28, 1996
Filed: April 24, 1996
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Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.
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PER CURIAM.
Dennis L. Santomauro appeals from the final judgment entered in the
District Court1 for the Northern District of Iowa upon his guilty plea to
being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g). The district court sentenced appellant to 63 months
imprisonment. For reversal appellant argues the district court erred in
calculating his offense level. For the reasons discussed below, we affirm
the judgment of the district court.
As part of his plea agreement Santomauro stipulated that he sold a
government witness nine firearms, including an M-14 rifle. The presentence
report (PSR) catalogued an additional twenty-three
1
The Honorable Michael J. Melloy, Chief Judge, United States
District Court for the Northern District of Iowa.
firearms that Santomauro and Richard Reuter had received from Jerry Ryan
in return for performing construction work. Except for the M-14, these
firearms were stored at the home of Reuter, who possessed a federal
firearms license.
The PSR recommended assessing a five-level increase under U.S.S.G.
§ 2K2.1(b)(1)(E), because between twenty-five and forty-nine firearms were
involved, and a two-level increase under U.S.S.G. § 2K2.1(b)(4), because
one of the firearms was stolen. Conceding that he possessed the M-14, but
contending that he did not possess the other firearms, Santomauro objected.
The district court overruled the objection. Given Santomauro's involvement
in transferring the firearms from Ryan's to Reuter's home, in arranging and
negotiating the sale, and in delivering the firearms to the government's
witness, the district court concluded that Santomauro and Reuter jointly
possessed at least thirty firearms.
For purposes of Guidelines § 2K2.1(b)(1), "[o]ffense" includes the
offense of conviction and all relevant conduct under U.S.S.G. § 1B1.3.
U.S.S.G. § 1B1.1, comment. (n.1(l)); see United States v. Dennis, 926 F.2d
768, 769 (8th Cir. 1991) (per curiam) (permitting use of relevant conduct
for calculating offense levels under U.S.S.G. § 2K2.2 (since deleted and
consolidated with § 2K2.1)). "[R]elevant conduct" includes, inter alia,
all acts which were part of the same course of conduct as the offense of
conviction; "same course of conduct" refers to offenses that are
"sufficiently connected or related . . . to warrant the conclusion that
they are part of a single episode, spree, or ongoing series of offenses."
U.S.S.G. § 1B1.3(a)(2) & comment. (n.9(B)). In determining the number of
firearms involved, the district court is to count those firearms
"unlawfully possessed." U.S.S.G. § 2K2.1, comment. (n.9).
That Ryan may have owned, and Reuter physically possessed, the
firearms is of no consequence, because a § 922(g) conviction may be based
on joint or constructive possession. See United States v.
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Boykin, 986 F.2d 270, 274 (8th Cir.), cert. denied, 114 S. Ct. 241 (1993).
Santomauro's contention that he was not authorized to sell the firearms is
belied by the evidence of his involvement in the transaction. Nor can
Santomauro successfully argue that the transaction involving the guns at
Reuter's home was not part of the same course of conduct as his crime of
conviction and thus did not constitute relevant conduct, because his
actions were part of a single episode or ongoing series of offenses.
We conclude the district court did not clearly err in finding
Santomauro jointly possessed with Reuter between twenty-five and forty-nine
firearms. See United States v. Miscellaneous Firearms & Ammunition, 945
F.2d 239, 240 (8th Cir. 1991) (per curiam) (standard of review). In any
event, it is clear that Santomauro constructively possessed between twenty-
five and forty-nine firearms. See Boykin, 986 F.2d at 274 (defining
constructive possession). Thus, we conclude the district court properly
assessed the Guidelines § 2K2.1 increases, based on the number of firearms
involved and because Santomauro did not contest that one of the firearms
was stolen. See United States v. Partington, 21 F.3d 714, 717 (6th Cir.
1994) (reviewing de novo whether facts found by district court warranted
application of § 2K2.1).
Accordingly, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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