Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-17-2000

United States v. Miller
Precedential or Non-Precedential:

Docket 00-5052




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Filed August 17, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-5052

UNITED STATES OF AMERICA

v.

JONATHAN MILLER a/k/a "Wacky Jack"

       Jonathan Miller,
       Appellant

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 98-cr-00009)
District Judge: Honorable Mary Little Cooper

Argued: Tuesday, June 27, 2000

Before: ROTH, GARTH, Circuit Judges
and STANTON, District Judge*

(Filed: August 17, 2000)

       Robert J. Haney (Argued)
       224 West State Street
       Trenton, NJ 08608

Attorney for Appellant



_________________________________________________________________
* Honorable Louis L. Stanton, United States District Judge for the
Southern District of New York, sitting by designation.
       Robert J. Cleary
       United States Attorney
       970 Broad Street
       Newark, NJ 07102

       Gerard M. McCabe (Argued)
       Assistant United States Attorney
       United States Post Office and
       Courthouse
       401 Market Street
       Camden, NJ 08101

       Attorneys for Appellee

OPINION OF THE COURT

GARTH, Circuit Judge:

In this appeal, we are asked to consider whether an
individual convicted of an unlawful sale of firearms is
entitled to an offense level reduction pursuant to the
"sporting purposes" provision of the United States
Sentencing Guidelines. See U.S.S.G. S 2K2.1(b)(2).

Jonathan Miller ("Miller") pled guilty in the District Court
to one count of selling firearms without a license, in
violation of 18 U.S.C. S 922(a)(1)(A). At sentencing, Miller
argued that because he had possessed the firearms at issue
for "sporting purposes"-- until he chose to sell them
unlawfully -- he was entitled to an offense level reduction
to offense level six. If Miller received such a reduction, he
would be subject to between zero and six months of
incarceration under the Guidelines. The District Court
rejected Miller's argument, and we will affirm, albeit for
reasons different than those provided by the District Court.1
_________________________________________________________________

1. We may affirm a District Court's judgment on grounds other than
those considered by the District Court itself. See, e.g., PAAC v. Rizzo,

, 308 n.1 (3d Cir. 1974) ("It is proper for an appellate court
to affirm a correct decision of a lower court even when that decision is
based on an inappropriate ground.").

                                2
I

On January 9, 1998, a federal grand jury returned afive-
count indictment against Miller, generally charging him
with violations of federal firearms law. In particular, the
indictment charged that on February 6, 1997, Miller had
sold both an Israel Military Industries Desert Eagle model
.44 magnum semi-automatic handgun and a Ruger GP100
model .357 magnum revolver, along with ammunition
consisting of four magazines of hollow point bullets to an
undercover agent of the Drug Enforcement Agency in New
Jersey. On February 21, 1997, Miller sold, to the same
undercover agent -- this time in Pennsylvania-- a German
Luger-style handgun possessing nine millimeter and .30
caliber barrels. Finally, on September 26, 1997, Miller sold
a fourth firearm -- a Thompson target/hunting pistol with
.45, .410, and .223 caliber barrels -- to the same agent in
New Jersey. The indictment specifically charged Miller with
the sale of firearms without a license, in violation of 18
U.S.C. S 922(a)(1)(A), transportation of afirearm in
interstate commerce, in violation of 18 U.S.C. S 922(g), and
possession of ammunition, also in violation of 18 U.S.C.
S 922(g).2

Federal authorities arrested Miller on April 1, 1999.
Pursuant to a plea agreement executed by both Miller and
the government on July 22, 1999, in exchange for the
dismissal of the remaining four counts of the indictment,
on August 19, 1999, Miller pled guilty to count one of the
indictment, which charged him with selling firearms
without a license.

The District Court sentenced Miller on December 13,
1999. Because Miller had been convicted of an offense
_________________________________________________________________

2. Both the transportation and possession charges stem from the fact
that Miller had "been convicted in a[ ] court of[ ] a crime punishable by
imprisonment for a term exceeding one year." 18 U.S.C. S 922(g)(1).
Miller's presentence report indicates that he had been arrested in 1983
on state theft charges in Pennsylvania. PSR P 29. In 1983, "theft by
unlawful taking" was a felony of the third degree under Pennsylvania law
if the article stolen was valued at over $2000. See 18 Pa. Cons. Stat.
Ann. S 3903(a) (1983). A felony of the third degree is punishable by a
maximum of seven years imprisonment. See id.S 106(b)(4).

                                3
concerning a "prohibited transaction involvingfirearms,"
the court was required to sentence Miller in accordance
with section 2K2.1 of the United States Sentencing
Guidelines. Miller's previous felony conviction required that
he be classified as a "prohibited person" under section 2K2.1,3
and the District Court thereupon set his base offense level
at fourteen. See U.S.S.G. S 2K2.1(a)(6).4 The fact that Miller
had sold four different weapons subjected him to a one-
level increase to fifteen, see 

or nine levels
above that provided by section 2K2.1(b)(2).

Miller argued that he was entitled to a reduction to level
six pursuant to section 2K2.1(b)(2) of the Guidelines
because each of the weapons involved in his offense were
possessed "solely for sporting purposes or collection." The
District Court rejected Miller's argument, holding that
because Miller had sold the firearms at issue in violation of
federal law, he had engaged in an "unlawful use" of the
firearms, and was therefore barred from receiving the
"sporting purposes" reduction. At Miller's sentencing
hearing, the District Court stated, in relevant part, as
follows:

       I believe that there is an unclear issue here of law. . .
       and I am sufficiently persuaded that this is a question
       of first impression, if you will, in this Circuit at least,
       that I will simply make a ruling based upon my legal
_________________________________________________________________

3. Application note six to section 2K2.1 defines "prohibited person" as,
inter alia, "anyone who . . . is under indictment for, or has been
convicted of, a `crime punishable by imprisonment for more than one
year,' as defined by 18 U.S.C. S 921(a)(20)." U.S.S.G. S 2K2.1 application
note 6. In pertinent part, 18 U.S.C. S 921(a)(20) provides that "[w]hat
constitutes a conviction of such a crime shall be determined in
accordance with the law of the jurisdiction in which the proceedings
were held." As stated earlier, 

n.2, Pennsylvania law requires
that a "felony of the third degree" be punishable by a maximum of seven
years of incarceration. Miller, who, as we have noted, had been
previously convicted in Pennsylvania for "theft by unlawful taking," is
therefore deemed a "prohibited person."

4. Section 2K2.1(a)(6) provides a base offense level of fourteen "if the
defendant (A) is a prohibited person; or (B) is convicted under 18 U.S.C.
S 921(a)(30)." U.S.S.G. S 2K2.1(a)(6).

                               4
       interpretation and allow the parties to take their
       contentions on appeal.

       I hold that the unambiguous language of Section
       2K2.1(b)(2) indicates that the scope of this Court's
       inquiry should be limited to cases in which possession
       has occurred and the defendant did not "unlawfully
       discharge or otherwise unlawfully use" the firearm.
       Here, where the defendant's offense was that he sold
       the firearms in an unlawful transaction, I hold that
       that conduct is covered under the term "unlawfully
       use" as found in this subsection, and therefore, that he
       is not eligible for the six level offense which is afforded
       for those who strictly use all ammunition and firearms
       solely for lawful sporting purposes or collection.

Sentencing Transcript, at 20-22. The District Court thus
essentially held that a reduction pursuant to section
2K2.1(b)(2) to level six was unavailable, as a matter of law,
to defendants convicted of firearm trafficking offenses.5

After allowing a two-level reduction for acceptance of
responsibility, Miller's sentencing range pursuant to the
Guidelines was between twelve and eighteen months of
imprisonment, and the District Court sentenced him to a
prison term of twelve months and one day. Anticipating
that Miller planned to appeal its determination concerning
his application for a section 2K2.1(b)(2) reduction, and that
our disposition on appeal would likely be rendered
subsequent to Miller's release, the District Court stayed
Miller's sentence on December 22, 1999.

II

The District Court possessed subject matter jurisdiction
_________________________________________________________________

5. We note that the District Court, as a result of its holding, did not
render any factual finding concerning the reason for which Miller
initially
possessed the firearms; that is, before he engaged in the illegal sale for
which he was convicted. Sentencing Transcript, at 23 ("If such an
inquiry needs to be made, this Court is equipped to do it, but I don't
think it is, and so my ruling is that this section does not apply in the
circumstances of this case . . . as applied to the charge in this case."
(emphasis added)).

                               5
over this matter pursuant to 18 U.S.C. S 3231. Because
Miller appeals from the District Court's final judgment of
conviction and sentence, and raises an issue concerning
the District Court's calculation of his sentence, our
appellate jurisdiction is grounded in both the final order
doctrine of 28 U.S.C. 1291 and 18 U.S.C. S 3742(a). As
Miller argues that the District Court erred in its
construction of the Sentencing Guidelines, our review is
plenary. See, e.g., United States v. Torres, 

,
311 (3d Cir. 2000).

III

As its title, "Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition: Prohibited
Transactions Involving Firearms or Ammunition," suggests,
the Sentencing Commission intended section 2K2.1 of the
Sentencing Guidelines generally to govern the sentencing of
defendants convicted of any number of firearms offenses. In
addition to listing the base offense levels for the various
firearms offenses, section 2K2.1 also provides"specific
offense characteristics"; that is, circumstances particular to
a given defendant's actual conduct that, if established,
would either increase or decrease a particular defendant's
offense level. One such provision is the focus of the instant
appeal, section 2K2.1(b)(2), which is colloquially known as
the "sporting purposes reduction." See Thomas W.
Hutchinson, et al., Federal Sentencing Law and Practice
621 (2000). In full, section 2K2.1(b)(2) reads as follows:

       If the defendant, other than a defendant subject to
       subsection (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5), 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, decrease the offense level determined
       above to level 6.

U.S.S.G. S 2K2.1(b)(2) (emphasis added).

The terms of section 2K2.1(b)(2) call for the establishment
of three requirements in order to warrant an offense level
reduction: (1) that the defendant is not subject to

                                6
subsections 2K2.1(a)(1)-(5);6 (2) that the defendant
"possessed all ammunition and firearms solely for lawful
sporting purposes or collection"; and (3) that the defendant
"did not unlawfully discharge or otherwise unlawfully use
such firearms or ammunition." The defendant must
establish each of these elements by a preponderance of the
evidence. See, e.g., United States v. Dudley, 

,
1276 (10th Cir. 1995); United States v. Gonzales , 

, 301 (1st Cir. 1993).

As stated earlier, the District Court recognized that Miller
had satisfied the first requirement, in that he was not
subject to subsections 2K2.1(a)(1)-(a)(5). The District Court
then assumed that Miller could satisfy his burden with
respect to the second requirement, yet held that because
Miller had illegally sold the firearms at issue, he had
"unlawfully used" the firearms, and therefore could not
meet his burden with respect to the third requirement. Our
_________________________________________________________________

6. In full, sections 2K2.1(a)(1)-(a)(5) provide as follows:

(a) Base Offense Level (Apply the Greatest):

       (1) 26, if the offense involved a firearm described    in 26 U.S.C.
       S 5845(a) [definitions of particularfirearms] or 18    U.S.C. S
921(a)(30)
       [definition of "semiautomatic assault weapon"], and    the defendant
       had at least two prior felony convictions of either    a crime of
violence
       or a controlled substance offense; or

        (2) 24, if the defendant had at least two prior felony convictions
of
        either a crime of violence or a controlled substance offense; or

        (3) 22, if the offense involved a firearm described in 26 U.S.C.
        S 5845(a) or 18 U.S.C. S 921(a)(30), and the defendant had one
prior
        felony conviction of either a crime of violence or controlled
        substance offense; or

        (4) 20, if --

        (A) the defendant had one prior felony conviction of either a crime
        of violence or a controlled substance offense; or

        (B) the offense involved a firearm described in 26 U.S.C. S 5845(a)
        or 18 U.S.C. S 921(a)(30); and the defendant (i) is a prohibited
        person; or (ii) is convicted under 18 U.S.C. S 922(d); or

        (5) 18, if the offense involved a firearm described in 26 U.S.C.
S 5845(a) or 18 U.S.C. S 921(a)(3) . . ..

                        7
analysis, however, differs from that of the District Court
inasmuch as we hold that Miller did not satisfy the second
requirement of the guideline; because Miller sold the
firearms, he did not possess them "solely for a lawful
sporting purposes or collection."

A

The government concedes that Miller was not subject to
subsections (a)(1)-(a)(5) of section 2K2.1(b)(2). Instead,
Miller is a "prohibited person" by virtue of his 1983
Pennsylvania conviction. Accordingly, Miller was properly
assigned a base offense level of fourteen pursuant to
section 2K2.1(a)(6), which the District Court increased to
fifteen as a result of Miller's multi-firearm transaction.

B

As stated above, the second requirement of a claim for a
section 2K2.1(b)(2) reduction mandates that the defendant
establish that he "possessed all ammunition andfirearms
[at issue] for lawful sporting purposes or collection." We
held in United States v. Wong, 

(3d Cir. 1993),
that "the plain and unambiguous language of the
Sentencing Guidelines affords the best recourse for their
proper interpretation." 

see also 2A Norman J.
Singer, Statutes and Statutory ConstructionS 46.01, at 53
(West Supp. 1999). In our view, the plain language of
section 2K2.1(b)(2) excludes trafficking offenses from the
offense level reduction provided by the provision.

As an initial matter, we note that section 2K2.1(b)(2)
stipulates that the firearms in question must have been
"possessed . . . solely for lawful sporting purposes or
collection." U.S.S.G. S 2K2.1(b)(2) (emphasis added). More
importantly, the relevant Guidelines provision does not use
the terms "traffic," "sell," or "transfer" to describe conduct
connected with a sporting or collective purpose that would
entitle a particular defendant to an offense level reduction.

The Commission did use such language, however, in
other subsections to section 2K2.1, thereby emphasizing
the omission of these terms in the "sporting purposes"

                                8
guideline. For example, section 2K2.1(b)(5) generally
provides a four level increase to a defendant's base offense
level

       [i]f the defendant used or possessed any firearm or
       ammunition in connection with another felony offense;
       or possessed or transferred any firearm or ammunition
       with knowledge, intent, or reason to believe that it
       would be used or possessed in connection with another
       felony offense.

(emphasis added). The fact that the
Sentencing Commission included language within certain
provisions of section 2K2.1 that would clearly include
trafficking, sale, or transfer offenses, but chose not to
include such language within the terms of section
2K2.1(b)(2), is sufficient to conclude that the Commission
did not intend for section 2K2.1(b)(2) to apply to those
defendants convicted of trafficking, sale, or transfer
offenses. See Russello v. United States, 

, 23
(1983) (" `[W]here Congress includes particular language in
one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.' " (quoting United States v. Wong Kim Bo, 

, 722 (5th Cir. 1972) (per curiam))); see also United
States v. Tham, 

, 1506 (11th Cir. 1997)
(applying the principle established in Russello to a
construction of the Sentencing Guidelines); United States v.
Olivares, 

, 629-30 (2d Cir. 1990) (per curiam)
(same).

As stated earlier, the District Court convicted Miller of
selling firearms without a license. Because the specific
characteristics of Miller's offense therefore establish that
Miller did not merely possess the firearms in question, but
rather sold them, the plain meaning of the Sentencing
Guidelines bars Miller from obtaining an offense level
reduction pursuant to section 2K2.1(b)(2). Miller's brief,
however, raises a number of arguments, to which we now
turn.7
_________________________________________________________________

7. Although Miller does not specify the arguments discussed in Section
IV of this opinion in his "Statement of the Issues," we have gleaned from
the discussion in his brief that he relies upon the arguments we catalog
in Section IV.

                               9
IV

A

Miller first argues that the Commission intended the
word "possessed" in section 2K2.1(b)(2) to refer to a
defendant's use of the firearms in question only up until the
date of the conduct giving rise to his conviction-- in this
case, the sale of the firearms. In other words, Miller asserts
that he is entitled to a reduction pursuant to section
2K2.1(b)(2) if he had possessed the firearms in question for
lawful sporting purposes up until the date he illegally sold
the same. Initially, we note that the plain language of
section 2K2.1(b)(2) does not in any way limit its provisions
in a temporal fashion. Even if we were to harbor doubt
concerning Miller's argument, however, application note 10
to section 2K2.1, referring to section 2K2.1(b)(2), provided
by the Sentencing Commission itself, states that

       [u]nder subsection(b)(2), "lawful sporting purposes or
       collection" as determined by the surrounding
       circumstances, provides for a reduction to an offense
       level of 6. Relevant 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
       defendant's criminal history . . . and the extent to
       which possession was restricted by local law.

application note 10 (emphasis added).8 In our
view, by authorizing the courts to inquire into the"actual
use" to which the defendant put the firearms in question,
_________________________________________________________________

8. Analogizing the commentary in the Guidelines (e.g., the application
notes) to "legislative rules," the Supreme Court has held that "provided
an agency's interpretation of its own regulations does not violate the
Constitution or a federal statute, it must be given`controlling weight
unless it is plainly erroneous or inconsistent with the regulation.' "
Stinson v. United States, 

, 45 (quoting Bowles v. Seminole
Rock & Sand Co., 

, 414 (1945)); see also U.S.S.G. S 1B1.7
("Failure to follow such commentary could constitute an incorrect
application of the guidelines, subjecting the sentence to possible
reversal
on appeal."). As such, we are bound by any interpretive guidance
provided by the Sentencing Commission through the application notes.

                               10
the Sentencing Commission has evinced its intent to extend
the relevant inquiry (i.e., whether the defendant possessed
all firearms for lawful sporting purposes) to the conduct
giving rise to the instant conviction -- here, the unlawful
sale. Each of our sister circuits to have considered the
issue have so held. See, e.g., United States v. Gresso, 

, 881 (7th Cir. 1994) ("The other circuits are in
accord: not only must a firearm be of a type that would be
acquired for sporting uses or for collection, but it must also
be possessed or used solely for those purposes."); United
States v. Shell, 

, 553 (5th Cir. 1992) ("[I]s is
not sufficient that one among several intended uses might
be lawful recreation or collection; one of those must be the
sole intended use."); United States v. Smeathers, 

, 364 (8th Cir. 1989) (per curiam) ("In our view, the
commentary makes clear that application of the reduction
depends on both intended and actual use.").9

B

Miller next argues that an interpretation preventing all
defendants convicted of the unlawful sale of firearms from
receiving an offense level reduction pursuant to section
2K2.1(b)(2) would nullify the application of this provision to
those defendants, like Miller, whose initial offense level was
provided by section 2K2.1(a)(6). The District Court set
Miller's initial offense level, pursuant to section 2K2.1(a)(6),
at fourteen because he was a "prohibited person"; that is,
an individual who, inter alia, "has been convicted of[ ] a
_________________________________________________________________

9. Indeed, the Eighth Circuit has confronted and rejected virtually the
same argument that Miller makes in the present matter. In United States
v. Smeathers, 

(8th Cir. 1989), the defendant (a previously-
convicted felon) had purchased a rifle for hunting purposes, but was
convicted of unlawful possession after he fired the gun in his home
during an argument with his wife. See 

Like Miller, the
defendant argued that he was entitled to a section 2K2.1(b)(2) reduction
because he had possessed the rifle for sporting purposes up until the
moment of the conduct that led to his conviction. The Eighth Circuit,
however, rejected the defendant's argument, holding that the conduct
that led to the underlying conviction was relevant to the district court's
determination as to whether the defendant possessed the firearm in
question solely for sporting purposes. See 

                               11
`crime punishable by imprisonment for more than one year,'
as defined by 18 U.S.C. S 921(a)(20)." U.S.S.G. S 2K2.1
application note 6; see also supra nn. 3-4. As we stated
earlier, Miller is not automatically disqualified from
receiving a section 2K2.1(b)(2) reduction as a result of being
sentenced pursuant to section 2K2.1(a)(6). Rather, as an
individual whose base offense level was determined under
section 2K2.1(a)(6), he is eligible for a section 2K2.1(b)(2)
reduction if he meets that section's requirements.

Our holding that section 2K2.1(b)(2) does not extend to
those defendants convicted of trafficking offenses, however,
does not render the provision a nullity; to the contrary,
defendants who are considered "prohibited persons" under
section 2K2.1(a)(6) could have been defendants who have
been convicted for the illegal possession of a firearm.10 As
such, certain defendants who are classified as"prohibited
persons" are eligible for a reduction pursuant to section
2K2.1(b)(2). It is therefore not inconsistent to allow those
defendants whose initial offense levels were obtained
through section 2K2.1(a)(6) to be eligible for a section
2K2.1(b)(2) reduction, but then to limit such a reduction to
only those defendants convicted of illegally possessing a
firearm, when such a firearm has solely been used for
sporting purposes or collection.

C

Miller also argues that the history surrounding the
present-day version of section 2K2.1 evinces an intent to
allow defendants convicted of trafficking offenses to benefit
from the reduction provided by section 2K2.1(b)(2). Prior to
November 1, 1991, what is presently section 2K2.1 was
actually three separate guidelines; to wit, sections 2K2.1,
2K2.2 (now deleted), and 2K2.3 (now deleted). Each of the
three sections separately and respectively dealt with the
sentencing of defendants convicted of possession offenses,
trafficking offenses, and transportation offenses with intent
_________________________________________________________________

10. Federal statute renders it a crime for an individual "who has been
convicted in any court of, a crime punishable by imprisonment for a
term exceeding one year" to possess a firearm. 18 U.S.C. S 922(g)(1).

                               12
or knowledge that the firearms would be used in future
crimes.

The "sporting purposes reduction" (former section
2K2.1(b)(1)) was exclusively located within the guideline
concerning possession offenses, and there was no
comparable provision within either sections 2K2.2
(trafficking) or 2K2.3 (transportation). In 1991, however, the
Sentencing Commission consolidated all three sections into
one, the present-day section 2K2.1. Miller argues that this
consolidation manifests an intent on the part of the
Sentencing Commission to allow any defendant convicted of
a firearms offense to obtain an offense level reduction
pursuant to section 2K2.1(b)(2), even when the defendant
fails to meet the requirements of the possessory"sporting
purposes" reduction of section 2K2.1(b)(2).

The mere consolidation of all firearms offenses into a
single guideline, without more, however, is insufficient to
contradict the plain meaning of section 2K2.1(b)(2). Indeed,
the Sentencing Commission, if it desired, could have
provided that upon consolidation, the "sporting purposes"
reduction applied to all firearms offenses, including sale,
transfer, or trafficking. It did not do so.

D

Miller's final argument centers around application note 8
to section 2K2.1. In full, application note 8 states as
follows:

       Subsection (a)(7) includes the interstate transportation
       or interstate distribution of firearms, which is
       frequently committed in violation of state, local, or
       other federal law restricting the possession offirearms,
       or for some other underlying unlawful purpose. In the
       unusual case in which it is established that neither
       avoidance of state, local, or other federal firearms law,
       nor any other underlying unlawful purpose was
       involved, a reduction in the base offense level to no
       lower than level 6 may be warranted to reflect the less
       serious nature of the violation.

application note 8. Miller essentially argues that
because section 2K2.1(b)(2) does not specifically disqualify

                               13
defendants whose initial offense level is obtained pursuant
to section 2K2.1(a)(7), and application note 8 specifically
indicates that a district court may reduce the offense level
of a defendant convicted of a trafficking offense to level six,
the Sentencing Commission intended for all such
defendants to receive the benefit of a section 2K2.1(b)(2)
reduction.

We disagree. As an initial matter, application note 8
tellingly lacks any reference whatsoever to section
2K2.1(b)(2). Moreover, application note 8 does not specify
that a defendant must prove that the firearms possessed
were solely for "lawful sporting purposes or collection," as
required by section 2K2.1(b)(2). Hence, application note 8
has no relationship to the "sporting purposes" reduction of
section 2K2.1(b)(2). Inasmuch as the sole issue before us is
whether Miller is entitled to a reduction to offense level six
pursuant to the "sporting purposes" provision of section
2K2.1(b)(2), and not whether Miller is entitled to a
reduction to offense level six provided for other purposes in
some other section of the Sentencing Guidelines, we reject
Miller's argument. Indeed, our review of the record
indicates that Miller failed even to mention application note
8 to the District Court, let alone seek an offense level
reduction pursuant to its terms. Because we believe that
the reduction to which application note 8 refers does not
concern the specific characteristics of Miller's offense and
has no connection with the with the specific reduction
provided by section 2K2.1(b)(2) for firearms possessed solely
for lawful sporting purposes or collection, Miller's argument
fails.

E

Because Miller cannot establish that he possessed the
firearms at issue in the instant matter "solely for lawful
sporting purposes," we need not entertain nor address the
argument concerning whether Miller's unauthorized sale of
the firearms constituted an "unlawful use"-- the third
requirement of a claim for a section 2K2.1(b)(2) reduction.

                               14
V

For the foregoing reasons, we will affirm the District
Court's order of December 15, 1999, sentencing Miller to a
term of incarceration spanning twelve months and one day.11
_________________________________________________________________

11. The District Court, in its December 22, 1999 order, among other
things, provided for Miller's surrender to the custody of the United
States
Marshal for the District of New Jersey in the event that the judgment
Miller appealed was affirmed. In light of our affirmance, we assume that
the stay of sentence imposed by the District Court will be discharged
and the sentence carried out.United States v. Miller, No. 00-5052.

                               15
Stanton, J., dissenting:

Standing alone, S 2K2.1(b)(2) could be read (as the
majority does) not to apply to unlawful sales, but only to
unlawful possession.

But subsection (b)(2) does not stand alone. It must be
read in connection with Application Note 8.

Reading both together is not only natural; as the
Government urges, it is a necessity. Quite correctly, the
Government points out that "the base offense level
reduction to level 6 referred to in Application Note 8 can
only be understood to mean the reduction to level 6
provided by S 2K2.1(b)(2)." Appellee's br. 12, n. 9. As the
Government explains, "Otherwise, Application Note 8 would
be meaningless because there is no other operative base
level reduction provision within the rubric of S 2K2.1." 

Note 8 ties subsection (b)(2)'s
reduction to sales, even though it may be unusual that a
particular sale will qualify:

       Subsection (a)(7) includes the interstate transportation
       or interstate distribution of firearms, which is
       frequently committed in violation of state, local, or
       other federal law restricting the possession offirearms,
       or from some other underlying unlawful purpose. In
       the unusual case in which it is established that neither
       avoidance of state, local, or other federal firearms law,
       nor any other underlying unlawful purpose was
       involved, a reduction in the base offense level to no
       lower than level 6 may be warranted to reflect the less
       serious nature of the violation.

U.S.S.G. S 2K2.1, Commentary, Application Note 8.

Thus, subsection (b)(2)'s sentence reduction, and
Application Note 8's application of it to sales, are
harmonious rather than in conflict.

The question whether the sale is a "use" which bars the
reduction in subsection (b)(2) will be decided by whether
the sale satisfied Note 8's requirements, and the seller's
pre-sale possession complied with (b)(2).

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The case should be remanded for determination whether
Mr. Miller's pre-sale possession was of the peaceable
character required by subsection (b)(2), and whether his
sales met the requirements of Application Note 8. If both
qualify, his base level should be reduced to level 6.

The majority affirms a sentence imposed by a Judge who
believed the law prevented her from even considering such
matters. Respectfully, I dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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