Rob Senger v. City of Aberdeen

1The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota.
2The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3261
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United States of America, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Darrell Wayne Massey, Sr., *
*
Appellee. *
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Submitted: April 20, 2006
Filed: September 11, 2006
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Before ARNOLD and COLLOTON, Circuit Judges, and BOGUE,1 District Judge.
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ARNOLD, Circuit Judge.
Darrell Massey pleaded guilty to being an unlawful user of a controlled
substance in possession of firearms, see 18 U.S.C. § 922(g)(3). At sentencing, the
district judge2 ultimately determined that Mr. Massey possessed the weapons solely
for sporting or collection purposes. The judge then sentenced the defendant to three
years of probation. The government appealed and we affirm.

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I.
Missouri Highway Patrol officers visited Mr. Massey's home after they received
reports of drug-related activity there. A woman answered the door and gave them
permission to enter the house and speak with Mr. Massey; once inside they saw a
burning marijuana cigarette. After Mr. Massey consented to a search, the officers
discovered marijuana in the house and on Mr. Massey's person. They also found a
common cutting agent for methamphetamine, a scale, and more than twenty firearms,
including a pistol. The arresting officer testified that he "believe[d]" that the pistol,
a Ruger Redhawk .44 magnum revolver, was found in what Mr. Massey referred to
as the CB (CB radio) room, where the defendant admittedly cut methamphetamine.
Mr. Massey was indicted for being an unlawful user of a controlled substance
in possession of twenty-one firearms, and he pleaded guilty. At the defendant's
sentencing hearing, the judge initially decided to sentence him to 30 months'
imprisonment. In determining this sentence, the judge first concluded that
Mr. Massey possessed the weapons in connection with his drug activity, which
resulted in a four-level increase in his offense level under the advisory sentencing
guidelines. See U.S.S.G. § 2K2.1(b)(5). The court then computed Mr. Massey's
guideline sentencing range to be 30 to 37 months. The government argued that
Mr. Massey should not be sentenced below that range, in part, because he had
obtained additional weapons since his arrest on the federal firearms charge. The court
imposed a 30-month sentence.
But just after the district judge imposed the 30-month sentence, he paused to
question the government's counsel further about the additional firearms acquired by
Mr. Massey. After the government disclosed that law enforcement officers had
discovered two rifles but no drugs at Mr. Massey's residence several months after the
original search, the district court reconsidered its ruling: The court reasoned that the
types of weapons and the absence of drugs found at the residence indicated that the
defendant was a gun collector and that he had not, in fact, previously possessed the

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twenty-one weapons in connection with his felonious drug activity. As a result, the
court retracted the four-level § 2K2.1(b)(5) enhancement and decided on a prison
sentence of 18 months.
Defense counsel then argued that Mr. Massey's sentence should be decreased
further because the defendant "possessed all ... firearms solely for lawful sporting
purposes or collection, and did not unlawfully discharge or otherwise unlawfully use
such firearms," U.S.S.G. § 2K2.1(b)(2). After Mr. Massey presented evidence
supporting this contention, the court agreed and concluded that the defendant was
entitled to a reduced offense level of six. See id. After applying this reduction and
a separate reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), the
district court sentenced Mr. Massey to three years' probation, and the sentencing
hearing came to a close. On appeal, the government challenges as clearly erroneous
the court's determinations that Mr. Massey did not possess any of the firearms in
question in connection with another felony, and that he possessed them all solely for
lawful sporting or collection purposes. Cf. United States v. Lussier, 423 F.3d 838, 843
(8th Cir. 2005), cert. denied, 126 S. Ct. 1120 (2006).
II.
Mr. Massey bore the burden of proving that he possessed the firearms in
question "solely for lawful sporting purposes or collection," which would decrease his
offense level to six. See U.S.S.G. § 2K2.1(b)(2); United States v. Ramirez-Rios,
270 F.3d 1185, 1187 (8th Cir. 2001). We may reverse the district court's findings as
to Mr. Massey's purpose for possessing the firearms only if they are clearly erroneous.
United States v. Kissinger, 986 F.2d 1244, 1246 (8th Cir. 1993). To determine
whether § 2K2.1(b)(2) applies, courts consider relevant 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),

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and the extent to which possession was restricted by local law." U.S.S.G. § 2K2.1,
comment. (n.7); United States v. Ramirez-Rios, 270 F.3d 1185, 1187 (8th Cir. 2001).
At sentencing, the defendant presented evidence of his actual use of the guns.
To demonstrate that he was a sportsman, he showed that he had obtained hunting and
fishing licenses and deer tags for each of the previous five years. He also offered into
evidence a letter from a co-worker discussing the hunting trips that the co-worker had
gone on with Mr. Massey, and a letter from his cousin noting that Mr. Massey was a
gun enthusiast who collected firearms and used them for hunting.
Mr. Massey had never been convicted of a weapons offense and had no
criminal history points assessed against him under the sentencing guidelines. He was
charged with being in possession of twenty-one weapons; only one was a pistol, and
the remaining firearms were rifles and shotguns. Two rifles were later found in his
home. In addition to considering Mr. Massey's evidence that he was a sportsman and
a gun collector, the court took judicial notice of the fact that the type of pistol found
in Mr. Massey's home was sold in hunting stores and could be characterized as a
hunting weapon. The court also found that the arresting officer's testimony was
equivocal and failed clearly to establish that the pistol was found in close proximity
to drugs or drug paraphernalia. The court also thought that it was instructive that
Mr. Massey continued to obtain rifles after his arrest, when there was no apparent
connection to drug activity. The court then concluded that Mr. Massey had possessed
the firearms solely for lawful sporting or collection purposes.
While the firearms for which Mr. Massey was charged were distributed
throughout the rooms of his house, not gathered in one central place as a collector
perhaps might typically do, the court noted that the dispersal of the guns was not
inconsistent with how a gun enthusiast might act. We conclude that it was not clearly
erroneous for the district court to find that Mr. Massey possessed the weapons solely
for sporting or collection purposes.

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The government, relying on language from Lussier, 423 F.3d at 843, argues on
appeal that a § 2K2.1(b)(2) reduction should not be given if the firearms in question
"could have reasonably been seen as having a purpose other than sporting" or
collecting. But in Lussier, unlike the present case, we were reviewing for clear error
a district court's finding that the defendant did not possess a firearm solely for sporting
or collection purposes. In Lussier, we reasoned that if the weapon "could have
reasonably been seen" as having a purpose other than sport or collection, a finding by
the district court that it was possessed, at least in part, for some other purpose was not
clear error.
Here, however, the district court found that the weapons were possessed solely
for sporting and collecting purposes. To apply the standard proposed by the
government to this case would completely alter our standard of review: We would
have to reverse if any reasonable view of the evidence could support a finding that Mr.
Massey had another purpose for possessing the weapons. But the clear error standard
applies, and thus, even if a reasonable person could find to the contrary, we may
reverse “only if we have a definite and firm conviction that the District Court was
mistaken.” United States v. Bahena, 223 F.3d 797, 802 (8th Cir.2000), cert. denied,
531 U.S. 1181 (2001).
We also note that in Lussier, the defendant failed to offer any explanation as to
why he reached into the back seat of his car, retrieved a firearm, and placed it on the
seat beside him, while he was parked in the driveway of his former girlfriend's house
in violation of a protection order. Mr. Massey, however, presented evidence that was
consistent with the sentence reduction, and while the district court acknowledged that
it was a "close call," it found that the circumstances supported a finding that the
firearms were possessed for lawful sporting or collecting purposes. We see no reason
to disturb that finding.

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In addition to challenging the district court's finding that Mr. Massey possessed
the firearms "solely for lawful sporting purposes or collection," U.S.S.G.
§ 2K2.1(b)(2), the government contends that the court was required to conclude that
the defendant possessed at least one firearm "in connection with another felony
offense," § 2K2.1(b)(5). But these two subsections of § 2K2.1 "are mutually
exclusive." United States v. Quinn, 358 F.3d 559, 560 (8th Cir. 2004) (per curiam).
Under § 2K2.1(b)(5), a firearm is not possessed "in connection with" another felony
unless it has "some purpose or effect with respect to” that felony and facilitates or has
the potential to facilitate it. United States v. Fredrickson, 195 F.3d 438, 439 (8th Cir.
1999). Because we have already upheld the district court's finding that Mr. Massey's
sole purpose in possessing all of the firearms was for sport or collecting, we must
reject the government's argument that the court was required to find that Mr. Massey
possessed at least one of the weapons "in connection with" his possession of drugs.
See id.
We therefore affirm the judgment of the district court.
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