United States v. Kenneth Lewis ( 2001 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 00-2247
    ___________
    United States of America,                 *
    *
    Appellee,     *
    *         Appeal from the United
    v.                           *         States District Court for
    *         the Northern District of
    Kenneth Donald Lewis,                     *         Iowa
    *
    Appellant.    *
    ___________
    Submitted: January 8, 2001
    Filed: May 10, 2001
    ___________
    Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and ALSOP,1
    District Judge.
    ___________
    ALSOP, District Judge.
    Kenneth Donald Lewis appeals the sentence he received after pleading guilty to
    one count of being a felon in possession of a firearm and one count of making a false
    statement in an attempt to acquire a firearm. Because we are unable to ascertain
    1
    The Honorable Donald D. Alsop, United States District Judge for the District
    of Minnesota, sitting by designation.
    whether or not the district court recognized its authority to depart from the guideline
    sentencing range, we vacate the sentence and remand for resentencing.
    The firearm in question is a family heirloom Sears and Roebuck 20-gauge
    shotgun, which Lewis inherited from his father. Lewis never purchased ammunition
    for the gun. Lewis was aware that because of his prior felony convictions he could not
    legally keep his deceased father’s prized gun, therefore, he gave it to his son.
    Facing financial hardship and threatened with immediate disconnection of
    utilities, Lewis obtained possession of the shotgun for the sole purpose of pawning it
    to obtain cash to pay bills. Upon pawning the gun, Lewis received fifty dollars, which
    he used to pay utility bills.
    Because the shotgun was a family heirloom, Lewis returned to the pawn shop a
    few days later to retrieve it. He filled out an ATF form 4473, which must be completed
    before acquiring a firearm from a licensed dealer. On the form, he falsely denied being
    previously convicted of an offense punishable by a prison term exceeding one year. All
    other information he provided was accurate, including his name, social security number,
    and address. The ATF form was submitted for clearance by the National Instant Check
    System. Lewis was denied clearance to reclaim the gun. Lewis and his wife returned
    later that same day and his wife correctly filled out the ATF form, received clearance,
    and regained the gun. The gun was immediately returned to Lewis’s son.
    Lewis was indicted for possession of the firearm, 
    18 U.S.C. § 922
    (g)(1) (1994),
    and making a false statement on the ATF form, 
    18 U.S.C. § 922
    (a)(6) (1994). He pled
    guilty to both counts and was given a three level downward adjustment to his Base
    Offense Level for acceptance of responsibility. Lewis ultimately had a total offense
    level of twenty-one and a criminal history category of VI. The guideline sentencing
    range was seventy-seven to ninety-six months imprisonment.
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    At sentencing, Lewis filed a motion for a U.S.S.G. § 5K2.11 lesser harms
    downward departure claiming that his possession of the firearm and false statement on
    the ATF form were not the kinds of harms that Congress envisioned when it enacted
    the law proscribing those offenses. See U.S. Sentencing Guidelines Manual § 5K2.11
    (1998). The district court denied the motion and sentenced Lewis to two concurrent
    seventy-seven month terms of imprisonment and three years supervised release.
    Lewis appeals the sentence contending that while the district court
    acknowledged it had the authority to depart on the felon in possession count, it
    erroneously believed it did not similarly have the authority to depart on the count of
    making a false statement in connection with the acquisition of a firearm. He argues that
    the court erred because Congressional intent behind both laws was identical. The
    government, on the other hand, argues that the district court fully appreciated its
    authority to depart, yet merely refrained from so doing.
    A district court’s application, construction, and interpretation of the terms of the
    relevant guidelines is subject to de novo review. See United States v. O’Kane, 
    155 F.3d 969
    , 971 (8th Cir. 1998). The district court’s decision to depart from the
    guidelines is accorded an abuse-of-discretion review, see Keen v. United States, 
    518 U.S. 81
    , 97-1000, 
    116 S. Ct. 2035
    , 2046-48 (1996); O’Kane, 
    155 F.3d at 971
    , but if
    the district court correctly “understood its authority to depart downward, but declined
    to do so in the circumstances presented, its decision not to exercise its authority is
    unreviewable” on appeal absent an unconstitutional motive. United States v. Saelee,
    
    123 F.3d 1024
    , 1025-26 (8th Cir. 1997). We must, thus, ascertain whether the district
    court recognized its authority to depart or whether it erroneously determined that it did
    not have the authority to depart under U.S.S.G. § 5K2.11 on the count of making a
    false statement in connection with the acquisition of a firearm. Because we cannot
    discern from the record whether the district court erred in its application and
    interpretation of the guidelines or merely exercised its discretion not to depart, we
    remand for resentencing.
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    There is a dearth of lesser harms case law. It has not yet been explicitly decided
    in this Circuit that the “lesser harms” rationale of U.S.S.G. § 5K2.11 permits a
    sentencing court to depart for violations of 
    18 U.S.C. § 922
    (a)(6), making a false
    statement in connection with the acquisition of a firearm. We hold that it does.
    U.S.S.G. § 5K2.11 permits a sentencing court to depart downward from the
    otherwise applicable sentencing guideline range when the defendant’s conduct does not
    “cause or threaten the harm or evil sought to be prevented by the law proscribing the
    offense at issue.” U.S.S.G. § 5K2.11. The guideline itself offers two examples of
    technically unlawful conduct that may receive a reduced sentence because it did not
    threaten the harm Congress sought to prevent when it enacted the statute: a war veteran
    possessing a machine gun or grenade as a trophy and a school teacher possessing
    controlled substances for display in a drug education program. See id.
    In United States v. White Buffalo, we previously held that “the sentencing
    commission must have envisioned departures under § 5K2.11 when an illegal weapon
    is not possessed for an unlawful purpose.” 
    10 F.3d 575
    , 576 (8th Cir. 1993). Although
    such was the issue in White Buffalo, U.S.S.G. § 5K2.11 is not limited in its application
    to departures for violations of gun possession prohibitions. It similarly applies, in the
    sentencing judge’s discretion, to departures when one violates 
    18 U.S.C. § 922
    (a)(6)
    and when the defendant’s conduct does not threaten the harm or evil Congress sought
    to prevent when it enacted that statute.
    The Government argued at sentencing that violating § 922(a)(6) was worse than
    or otherwise different from violating § 922(g)(1) because it showed a desire to cover-up
    illegal firearm possession and because it involved an affirmative misrepresentation to
    the Government. These arguments are in error. The government seemed to advocate
    a type of “strict liability” analysis to the false statement provision of the statute. The
    government’s argument would take this provision out from under the umbrella of
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    situations to which the lesser harms analysis applies. That is because violating this
    section would always entail an affirmative misrepresentation to the Government.
    Nonetheless, the sentencing guidelines allow a lesser harms departure when a person
    violates any statute, when the violation does not threaten the harm or evil sought to be
    prevented by the statute. See U.S.S.G. § 5K2.11.
    The two sections of 
    18 U.S.C. § 922
     to which Lewis pled, §§ 922(a)(6) and
    (g)(1), share the same purpose: to keep firearms out of the hands of people Congress
    has determined to be too dangerous to use firearms safely.2 See United States v.
    Huddleston, 
    415 U.S. 814
    , 824-25, 
    94 S.Ct. 1262
    , 1268-69 (1974); Barrett v. United
    States, 
    423 U.S. 212
    , 218-21, 
    96 S.Ct. 498
    , 502-3 (1976). Congressman Celler, the
    House Manager of the Gun Control Act, which amended § 922(g), stated:
    [W]e are convinced that a strengthened system can significantly
    contribute to reducing the danger of crime in the United States. No one
    can dispute the need to prevent drug addicts, mental incompetents,
    persons with a history of mental disturbances, and persons convicted of
    certain offenses, from buying, owning, or possessing firearms. This bill
    seeks to maximize the possibility of keeping firearms out of the hands of
    such persons.
    114 Cong. Rec. 21784 (daily ed. July 17, 1968) (statement of Rep. Celler); see also
    Huddleston, 
    415 U.S. at 828
    , 
    94 S.Ct. at 1270
    ; Barrett, 
    423 U.S. at 220-21
    , 
    96 S.Ct. at 503
    .
    Preventing the acquisition of firearms by punishing false statements on an ATF
    form under § 922(a)(6) is the means to the end of preventing the act of possessing a
    firearm, prohibited by § 922(g)(1). See Huddleston, 
    415 U.S. at 824-25
    , 
    94 S.Ct. at
    2
    Sections 922(a)(6) and (g)(1) were enacted as part of the Omnibus Crime
    Control and Safe Streets Act of 1968, P.L. 90-351 (“Crime Control Act”). The statute,
    specifically § 922(g), was further amended that same year by the Gun Control Act of
    1968, P.L. 90-618 (“Gun Control Act”).
    -5-
    1269. Analyzing Congressional intent behind § 922(a)(6), the Supreme Court
    explained:
    Section 922(a)(6) . . . was enacted as a means of providing adequate and
    truthful information about firearms transactions. Information drawn from
    records kept by dealers was a prime guarantee of the Act’s effectiveness
    in keeping “these lethal weapons out of the hands of criminals, drug
    addicts, mentally disordered persons, juveniles, and other persons whose
    possession of them is too high a price in danger to us all to allow.”
    Id. (quoting 114 Cong. Rec. 13219 (1968) (remarks of Sen. Tydings)).
    Thus, § 922(a)(6) has no purpose independent of § 922(g)(1). By prohibiting
    certain persons from possessing or obtaining firearms, “the ‘harm or evil’ the law seeks
    to prevent is violent crimes and loss of human life.” White Buffalo, 
    10 F.3d at 576-77
    ;
    see also 114 Cong. Rec. 21783-86 (daily ed. July 17, 1968) (statement of Rep. Celler)
    (describing incidents of murders and assaults with deadly weapons as the impetus
    behind the Gun Control Act and stating “[i]t is not only deliberate murder, robbery and
    assault which this legislation seeks to reduce, but also acts of passion and gun
    suicides”); 114 Cong. Rec. 13219 (daily ed. May 14, 1968) (statement of Sen. Tydings)
    (describing the “horrible and stark figures of death and destruction caused by misuse
    of firearms” and the need for laws that will reduce this “tragic toll” as the impetus
    behind the Crime Control Act); H.R. Rep. No. 1577 (1968), reprinted in 1968
    U.S.C.C.A.N. 4410, 4412-13 (general statement regarding the Gun Control Act); S.
    Rep. No. 1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2163-64 (statement
    regarding the firearms control provisions of the Crime Control Act).
    As we noted in White Buffalo, the guidelines authorize reasonable departure for
    an act that is technically unlawful, yet not committed for an unlawful purpose. See
    White Buffalo, 
    10 F.3d at 576-77
    . The lesser harms analysis, thus, may apply to
    situations when a false statement is made on an ATF form when the sought after
    weapon is not sought after for an unlawful purpose. Therefore, if the district court were
    persuaded by Lewis’s proffered motive, the district court certainly could conclude that
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    briefly possessing a firearm in order to pawn it to pay bills and attempting to keep a
    family heirloom in the family were not the types of harms or evil envisioned by
    Congress when it enacted §§ 922(a)(6) and 922(g)(1). Having so found, the district
    court would have the authority to depart downward from the guideline sentencing
    range. However, we leave it to the district court to determine the ultimate facts bearing
    on the application of the lesser harms departure.
    Because the Court cannot determine from the record whether the district court
    denied a lesser harms departure because it thought itself powerless to depart or whether
    it considered the facts and decided that a departure was not warranted, we vacate the
    sentence and remand to the district court for resentencing.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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