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United States v. DiIorio, 95-1138 (1995)

Court: Court of Appeals for the First Circuit Number: 95-1138 Visitors: 17
Filed: Nov. 22, 1995
Latest Update: Mar. 02, 2020
Summary: Defendant, Appellant., ___________________, Sheldon Whitehouse, United States Attorney, Stephanie S. Browne, __________________ ____________________, and Craig N. Moore, Assistant United States Attorneys, on brief for, ______________, appellee.sporting purposes or collection.firearms at issue.
USCA1 Opinion




November 22, 1995 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT



____________________


No. 95-1138

UNITED STATES,

Appellee,

v.

DENNIS JOHN DiIORIO,

Defendant, Appellant.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND


[Hon. Ernest C. Torres, U.S. District Judge] ___________________

____________________

Before

Torruella, Chief Judge, ___________
Selya and Cyr, Circuit Judges. ______________

____________________

Orlando A. Andreoni on brief for appellant. ___________________
Sheldon Whitehouse, United States Attorney, Stephanie S. Browne __________________ ____________________
and Craig N. Moore, Assistant United States Attorneys, on brief for ______________
appellee.


____________________


____________________





















Per Curiam. Defendant-appellant Dennis J. DiIorio ___________

pled guilty to a three-count indictment, including possession

of a firearm by a convicted felon. He appeals from his

sentence on the sole ground that the district court erred in

denying a reduction in his base offense level because he

"possessed all ammunition and firearms solely for lawful

sporting purposes or collection. . . ." United States

Sentencing Guidelines, 2K2.1(b)(2) (1994). The burden is

on the defendant to prove by a preponderance of the evidence

that he is entitled to the reduction. United States v. ______________

Cousens, 942 F.2d 800, 802 (1st Cir. 1991). "We review for _______

clear error the district court's factual findings with regard

to the intended purposes of purchasing and possessing the

firearms at issue." Id. ___

Having carefully reviewed the record, including the

transcript from the sentencing hearing, we conclude that it

was not clear error for the district court to find that

appellant failed to prove by a preponderance of the evidence

that he possessed the gun and ammunition solely for sporting

or collection purposes. The sentencing court's decision not

to accept DiIorio's version of the relevant facts was a

credibility determination best made by the district court,

rather than by this court. See United States v. Wheelwright, ___ _____________ ___________

918 F.2d 226, 228 (1st Cir. 1990). Accordingly, appellant's

sentence is affirmed. See Loc. R. 27.1. ________ ___










Source:  CourtListener

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