Filed: Jun. 23, 2017
Latest Update: Mar. 03, 2020
Summary: United States Court of Appeals For the Eighth Circuit _ No. 16-4229 _ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Melvano Dwayne Moore lllllllllllllllllllll Defendant - Appellant _ Appeal from United States District Court for the Southern District of Iowa - Des Moines _ Submitted: March 6, 2017 Filed: June 23, 2017 _ Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges. _ MELLOY, Circuit Judge. Melvano Moore pled guilty to making a false statement during the purchase o
Summary: United States Court of Appeals For the Eighth Circuit _ No. 16-4229 _ United States of America lllllllllllllllllllll Plaintiff - Appellee v. Melvano Dwayne Moore lllllllllllllllllllll Defendant - Appellant _ Appeal from United States District Court for the Southern District of Iowa - Des Moines _ Submitted: March 6, 2017 Filed: June 23, 2017 _ Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges. _ MELLOY, Circuit Judge. Melvano Moore pled guilty to making a false statement during the purchase of..
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United States Court of Appeals
For the Eighth Circuit
___________________________
No. 16-4229
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Melvano Dwayne Moore
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: March 6, 2017
Filed: June 23, 2017
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Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Melvano Moore pled guilty to making a false statement during the purchase of
a firearm, in violation of 18 U.S.C. § 924(a)(1)(A). At sentencing, Moore argued he
was entitled to a sentence reduction under United States Sentencing Guidelines
§ 2K2.1(b)(2) because he possessed the firearms solely for sporting use. The district
court1 concluded that Moore was not entitled to a sentence reduction and sentenced
Moore to twelve months and one day of imprisonment. The district court also
imposed a special condition of release requiring Moore attend a treatment program
for anger control/domestic violence based on a ten-year old conviction for terroristic
threats. Moore appeals his sentence and the special condition. We affirm.
I.
On September 22, 2013, Moore executed a Department of Justice, Bureau of
Alcohol, Tobacco, Firearms, and Explosives Form 4473 to purchase a firearm. On
the form, Moore represented that he was not an unlawful user of a controlled
substance.
On May 27, 2015, law enforcement officers executed a search warrant at
Moore’s residence. During the search, officers recovered four handguns, a rifle, and
evidence of marijuana use. Moore later admitted that he was a marijuana user both
at the time of the search and when he filled out Form 4473.
Moore was charged with making a false statement during the purchase of a
firearm, in violation of 18 U.S.C. § 924(a)(1)(A), and being an unlawful user of a
controlled substance in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(3)
and 924(a)(2). Pursuant to a plea agreement, Moore pled guilty to the false statement
charge, and the government agreed to dismiss the unlawful-user count at sentencing.
The presentence investigation report (PSR) calculated Moore’s guideline range
at 12–18 months’ imprisonment, based on an offense level of 13 and a criminal
history category of I. Moore objected to the PSR’s guideline range, arguing it should
1
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa.
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be reduced to 0–6 months because he possessed the firearms for sporting purposes,
pursuant to U.S.S.G. § 2K2.1(b)(2). Moore also objected to the PSR’s recommended
special condition of supervised release requiring Moore’s participation in a treatment
program for anger control/domestic violence. The district court overruled both
objections and sentenced Moore to 12 months and one day of imprisonment and 24
months’ supervised release, with the recommended special condition.
II.
On appeal, Moore challenges the denial of a sentence reduction pursuant to
U.S.S.G. § 2K2.1(b)(2), and the special condition of supervised release.
A.
We review the application of the sentencing guidelines de novo and the
underlying factual findings for clear error. United States v. Walker, 688 F.3d 416,
420 (8th Cir. 2012). Under U.S.S.G. § 2K2.1(b)(2), a defendant’s base offense level
is reduced to level six if 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 burden is on the
defendant to prove that he possessed the firearms solely for sporting or collection
purposes. United States v. Massey,
462 F.3d 843, 845 (8th Cir. 2006).
To determine whether the sporting-use or collection reduction applies, courts
look to the “[r]elevant surrounding circumstances,” which “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.” U.S.S.G. § 2K2.1(b)(2) cmt. n.6.
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The only evidence at sentencing to arguably support a sporting-use reduction
was that Moore enjoys hunting, fishing, and competing in gun competitions. Moore
did not present any evidence, however, that the firearms he possessed were actually
used for those purposes. See Massey, 462 F.3d at 846 (upholding the sporting-use
reduction based on evidence of the “actual use of the guns”). Nor did Moore present
a hunting license. See
id. (noting the defendant presented hunting and fishing
licenses).
Additionally, when Moore objected to the PSR for failing to apply the sporting-
use reduction, he stated, “[h]is primary interest in firearms was for protection,
collection, and target shooting purposes, as he was studying criminal justice and has
an interest in pursuing a law enforcement career.” Thus, by Moore’s own admissions,
he did not possess the firearms solely for sporting or collection purposes. And “[a]
defendant who possesses a handgun for personal protection is not entitled to a
§ 2K2.1(b)(2) reduction.” United States v. Ramirez-Rios, 270 F.3d 1185, 1187 (8th
Cir. 2001). As a result, the district court did not err in denying a sentence reduction
under U.S.S.G. § 2K2.1(b)(2).
B.
We review the imposition of special conditions of supervised release for abuse
of discretion. United States v. Hart, 829 F.3d 606, 608 (8th Cir. 2016). Pursuant to
18 U.S.C. § 3583(d), “[a] district court has broad discretion to impose special
conditions of supervised release.”
Id. (quoting United States v. Deatherage,
682 F.3d
755, 758 (8th Cir. 2012)). Under § 3583(d), special conditions “must be reasonably
related to four factors: the nature and circumstances of the offense and the history and
characteristics of the defendant, the need to afford adequate deterrence to criminal
conduct, the need to protect the public from future crimes of the defendant, and the
need to provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner.” United States v.
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Harris, 794 F.3d 885, 888–89 (8th Cir. 2015) (internal quotation marks omitted).
“The special condition need not be related to all four factors; instead, the factors are
weighed independently.”
Hart, 829 F.3d at 609. Additionally, a special condition can
“involve[ ] no greater deprivation of liberty than is reasonably necessary,” and must
be “consistent with any pertinent policy statements issued by the Sentencing
Commission.” 18 U.S.C. § 3583(d)(2)–(3).
The special condition to which Moore objects provides: “The defendant shall
participate in an approved treatment program for anger control/domestic violence.
Participation may include inpatient/outpatient treatment. The defendant will
contribute to the costs of services rendered (co-payment) based on ability to pay or
availability of third party payment.” Moore argues this condition was imposed
without evidence of its need and, thus, is not reasonably related to sentencing goals.
The district court imposed the special condition after noting the sufficient basis
in the record to support the condition. Specifically, Moore has a prior conviction for
terroristic threats based on threats he made to an ex-girlfriend. Based on this
conviction, the special condition the district court imposed on Moore is reasonably
related to Moore’s history. Additionally, the court noted that the treatment program
may be a very short program, thus limiting any deprivation of liberty. As a result, the
district court did not abuse its discretion in imposing the special condition of
supervised release.
III.
For the foregoing reasons, the judgment of the district court is affirmed.
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