United States of America v. James Barry Earhart

* The Hon. R. Barclay Surrick, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1306
UNITED STATES OF AMERICA
v.
JAMES BARRY EARHART,
Appellant
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF PENNSYLVANIA
(Dist. Court No. 02-cr-00119)
District Court Judge: Hon. William W. Caldwell
Submitted Under Third Circuit LAR 34.1(a)
July 21, 2003
Before: ALITO and FUENTES, Circuit Judges, and SURRICK,* District Judge.
(Opinion Filed: July 31, 2003)
OPINION OF THE COURT
ALITO, Circuit Judge:

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James Barry Earhart pled guilty to possession of firearms by a felon and by a drug
user, in violation, respectively, of 18 U.S.C. § 922(g)(1), (g)(3). He sought a downward
departure under U.S.S.G. § 2K2.1, which provides in pertinent part:
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, decrease the offense
level . . . to level 6.
U.S.S.G. § 2K2.1(b)(2). The District Court denied the motion, finding that Earhart’s
“credibility is subject to question” and that “I really don’t believe that the only reason he
possessed those weapons was for sporting purposes or other lawful uses.” We review
such factual findings relied upon in the application of a sentencing guideline for clear
error. United States v. Jenkins, 275 F.3d 283, 286 (3d Cir. 2001).
Earhart contends that he kept rifles and handguns “primarily” for hunting and for
recreational target shooting. In United States v. Bossinger, 12 F.3d 28 (3d Cir. 1993), we
held that these activities constitute “lawful sporting purposes” within the meaning of §
2K2.1. See id. at 30 (holding that “lawful sporting purposes” consists of all “lawful
recreational use” of firearms). Earhart concedes that the District Court was entitled to
evaluate his credibility, but he argues that the Court erred in finding that the firearms
were not solely for recreational use because the government presented “no evidence to the
contrary.” We disagree. The lone precedent Earhart submits as ostensible support for
this position, Williams v. New Bethlehem Burial Service, 74 A.2d 677, 680 (Pa. Super.
1950), is entirely inapposite and, in any event, does not bind this Court. Williams’s

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holding that certain factual findings may be reversed only if there is a “capricious
disregard of competent evidence” by the trial court is nothing more than a standard of
review used by Pennsylvania’s state appellate courts. In this case, Earhart had the burden
of proving, “by a preponderance of the evidence, that the actual or intended use [of his
firearms] was solely for sporting or recreational purposes.” United States v. Uzelac, 921
F.2d 204, 206 (9th Cir. 1990). Earhart offered no evidence to carry his burden other than
his own testimony and his relatives’ corroboration. The District Court found his claims
not credible. Because he failed to carry his burden, the Court’s inquiry properly ended
there. See United States v. Solomon, 274 F.3d 825, 829 (4th Cir. 2001) (“A finding as to
the absence of proof of unlawful use cannot translate to, or equal, a finding that the
firearm was used ‘solely for lawful sporting purposes or collection.’”). We accordingly
find no grounds for reversal, and we affirm the judgment of the District Court.

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TO THE CLERK OF THE COURT:
Kindly file the foregoing Not Precedential Opinion.
/s/ Samuel A. Alito
Circuit Judge

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