United States of America v.  John Bayne, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v. No. 03-4784 
JOHN BAYNE, JR.,
Defendant-Appellee. 
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-03-197)
Argued: May 7, 2004
Decided: July 6, 2004
Before WIDENER and GREGORY, Circuit Judges,
and C. Arlen BEAM, Senior Circuit Judge of the United States
Court of Appeals for the Eighth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Elizabeth Olivia Tucci, Special Assistant United States
Attorney, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C.; Patrick Friel Stokes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant. Allen Howard Orenberg, North Bethesda, Mary-
land, for Appellee. ON BRIEF: Paul J. McNulty, United States

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Attorney, Alexandria, Virginia, for Appellant. Joseph R. Conte,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The defendant, John Bayne, pleaded guilty to the possession of a
sawed-off shotgun in violation of 26 U.S.C. § 5861 and was sen-
tenced to eight months’ incarceration, with credit for time served, to
be followed by three years of supervised release including a special
condition of four months of community confinement.
There was no agreement with reference to the guilty plea, and with
the criminal history category of II, the pre-sentence report, accepted
by all, calculated an offense level of 15 in Zone D. The district court
granted a 4-level downward departure based on the second prong of
what is known as the lesser harms departure of U.S.S.G. § 5K2.11
and denied the defendant’s other motions for downward departure.
Had there been no departure, Bayne would have received a minimum
sentence of 21 months’ incarceration, none of which could have been
satisfied by community confinement. See U.S.S.G. § 5C1.1(f). The
government appeals the 4-level downward departure.
Initially, here, and in the district court, the government took the
position that a departure under § 5K2.11 was not warranted, in any
event, for possession of a sawed-off shotgun. It argued that Congress
intended to punish "the mere possession of a sawed-off shotgun." Br.
p.10. In the reply brief, however, the government has stated it does
not challenge the district court’s authority to make a lesser harms
departure,* "rather, the government challenges the merits of the
*United States v. White Buffalo, 10 F.3d 575 (8th Cir. 1993) and
United States v. Hadaway, 998 F.2d 917 (11th Cir. 1993) have held that
district courts have the authority to depart downward and apply U.S.S.G.
§ 5K2.11, Lesser Harms (Policy Statement).
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departure itself." Reply Br. p.5-6. See 18 U.S.C. § 3742(e)(3)(B) and
(C).
We review the district court’s decision de novo, assuming for argu-
ment that the legal standards were not changed by the 2003 amend-
ment to 18 U.S.C. § 3742. See United States v. Stockton, 349 F.3d
755, 764, n.4 (4th Cir. 2003).
The defendant acknowledged possession of a sawed-off shotgun
under the following circumstances. He owned the shotgun involved,
with a barrel of ordinary length, and loaned it to a friend. Some time
later the friend, having had the barrel sawed off, returned the gun to
the defendant. The facts found by the district court are:
. . . it seems clear to me that what happened is that this
friend returned to him a firearm that was sawed off. So far
as the record reflects, he played no role in sawing it off,
accepted it back, was unsure about what to do with it and
was concerned about it, told no one he was concerned about
it, but certainly put it away not having a clear idea about
what to do with it.
(J.A. 91).
Following the return of the gun to the defendant, the defendant’s
mother noticed the gun in the house and turned it over to the authori-
ties. This prosecution followed.
U.S.S.G. § 5K2.11, which is styled "Lesser Harms (Policy State-
ment)," provides in the second part thereof as follows:
In other instances, conduct may not cause or threaten the
harm or evil sought to be prevented by the law proscribing
the offense at issue. For example, where a war veteran pos-
sessed a machine gun or grenade as a trophy, or a school
teacher possessed controlled substances for display in a drug
education program, a reduced sentence might be warranted.
U.S.S.G. § 5K2.11 (2003).
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The record in this case does not show any other unlawful use of the
shotgun by the defendant, nor does it show that the possession of the
shotgun by the defendant was for any unlawful purpose or in connec-
tion with any unlawful activity other than the mere possession of the
gun. The conduct of the defendant in merely possessing the gun has
not shown that it would "cause or threaten the harm or evil sought to
be prevented by the law proscribing the offense at issue." In such a
case we are unable to say that the district court erred in granting the
4-level departure, and we are of opinion the district court did not err
in deciding that the departure was justified by the facts of the case.
The judgment of the district court is accordingly
AFFIRMED.
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