US v. Michael Nichols
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
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)
November 5, 2009
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 review a sentence for reasonableness under an abuse of discretion standard. ___, 128 S. Ct. of of a 586, both Gall v. United States, 552 U.S. 38, 597 the (2007). This review and at requires
procedural 128 S. Ct.
substantive 597. After
determining whether the district court properly calculated the defendant's whether analyzed the advisory district guideline court range, we the by must then consider factors, and
§ 3553(a) the
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 "taking into account the totality of the
circumstances[.]" (4th Cir. 2007).
United States v. Pauley, 511 F.3d 468, 473
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. commentary to § 2K2.1 states that the The
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." cmt. n.6. USSG § 2K2.1
Nichols contends that the district court erred by the term "solely." The district court's
interpretation of a guideline term is a legal issue reviewed de novo. 2000). Nichols argues that the district court overemphasized the term "solely" by holding that his non-sporting use of one firearm disqualified him from 3 receiving the reduction. He United States v. Souther, 221 F.3d 626, 628 (4th Cir.
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." while not directly equated addressing "solely," the as issue in
In Solomon, here, we
Therefore, we conclude that the district court § 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 court as required under that
Nichols may have believed his conduct was legal, the court did 4
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 rendering and a characteristics sentence, the of the defendant[.]" court the `must "When make an
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. position was not a The court's disagreement error. with Nichols' 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 5
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. oral argument because in the the facts and legal before We dispense with contentions the court are and
argument would not aid the decisional process. AFFIRMED
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