US v. Michael Nichols

Filing 920100104

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4233 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL KEITH NICHOLS, Defendant -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) Submitted: November 5, 2009 Decided: 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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 affirm. 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 consideration reasonableness procedural 128 S. Ct. substantive 597. After sentence. 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 considered presented 3553(a) the the arguments parties, 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 sentence, 2 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 "surrounding 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 misinterpreting 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 presented explicitly used 2K2.1(b)(2) with "exclusively." correctly Therefore, we conclude that the district court 2K2.1(b)(2) in this case and correctly applied denied Nichols the reduction. Nichols next contends that the district court failed to consider the nature of his offense court as required under that 3553(a)(1) because, although the acknowledged Nichols may have believed his conduct was legal, the court did 4 not find that factor sufficient asserts to warrant the a sentence of probation. Nichols also that district court's 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 district on individualized assessment based facts presented.'" 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 procedural Moreover, the 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 adequately presented materials argument would not aid the decisional process. AFFIRMED 6

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