United States v . So 05-CR-185-SM 07/12/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal N o . 05-cr-184-1-SM Opinion N o .

Theoun So

O R D E R

Defendant has filed a motion seeking release on bail pending

resolution of his direct appeal.

(b). Because

he pled guilty to being a felon in possession of a firearm in

violation of

(g), and has been sentenced,

defendant must be detained absent a finding based on clear and

convincing evidence that he is not a risk of flight or a danger

to the community and that his appeal raises a substantial

question of law or fact likely to result i n , among other things,

“a reduced sentence to a term of imprisonment less than the total

of the time already served plus the expected duration of the

appeal process.”

(b)(1)(B)(iv).

The pertinent facts are these. Defendant went to a

commercial firing range with a friend. He arrived at the range

in possession of a silver-colored pistol, which was in a holster

on his hip. Defendant proceeded to rent firearms and to fire

them on the range. Before renting and using the firearms, defendant had affirmatively misrepresented his criminal history

on a form required by the business when he denied that he had

been previously convicted of a felony. In fact, defendant had

been previously convicted of two felonies, both of which

qualified as crimes of violence. His prior convictions, and the

fact that he rented and fired a submachine gun, resulted in a

Base Offense Level under the Sentencing Guidelines of 2 6 . See

U.S.S.G. § 2K2.1(a)(1). Defendant’s Criminal History Category

(“CHC”) was properly determined to be Category III.

Counsel argues that defendant’s appeal of his sentence does

raise “substantial issues of fact and law which could result in

the time-served sentence sought by . . . counsel,” citing cases

that generally reject “fleeting and transitory” or “otherwise

innocent” factual defenses to felon in possession of firearms

charges. But, even if such factual defenses might prove valid

under extraordinary circumstances like those mentioned in the

cases cited by counsel (e.g., a felon taking possession of a

firearm from a child), there is no “fleeting” or “otherwise

innocent possession” issue here. Defendant carried a pistol on

his hip into a commercial range, misrepresented his criminal

background, rented other firearms, and actually fired them for

approximately one hour. See United States v . Holt,

0 1 ,

2 106-107 (1st Cir. 2006); United States v . Mercado,

(1st Cir. 2005).

Defendant also suggests that a substantial legal issue will

be presented on appeal related to the recent Supreme Court

decision in Rita v . United States,

,

(June 2 1 , 2007). Rita validated a rebuttable appellate

presumption that criminal sentences falling within a properly

calculated Guidelines sentencing range are “reasonable,” but

noted that sentencing courts cannot apply a similar presumption.

Neither appellate issue is likely to result in “the time-

served sentence sought by . . . counsel.” The factual findings

underlying the imposed sentence — that defendant carried a

firearm on his hip in a holster, rented other firearms at the

range, and fired those weapons, knowing he was a prohibited

person and after having misrepresented his status as a convicted

felon to facilitate his acquisition of the rented firearms, are

fully supported by the testimony and evidence presented. The

legal issue defendant identifies — that the court (presumably

implicitly) deemed a Guidelines sentence to be presumptively

reasonable — is a bit difficult to understand. The court did not

“presume” the properly calculated advisory Guidelines sentencing

range to be reasonable in this case. To the contrary, the court

3 sua sponte declined to impose a sentence within that properly

calculated range. Defendant’s Guidelines sentencing range, after

adjustments, was based upon a Total Offense Level of 25 and a

Criminal History Category I I I , which called for a prison sentence

between 70 and 87 months. But the court departed two levels

under Guidelines Section 5K2.0, on grounds that the circumstances

surrounding defendant’s possession of a submachine gun (an

enhancing fact under Section 2K2.1(a)(1)) fell outside the

heartland of cases involving felons in possession of such

weapons. Specifically, the court determined that because

defendant’s possession of the submachine gun was at a commercial

firing range, he was under supervised and controlled conditions,

the weapon was used exclusively for target-shooting, and the

record sufficiently suggested a degree of marketing pressure by

the business to induce defendant to rent and try that particular

sentence-enhancing firearm, the enhancing factor based on the

weapon’s characteristics should not be applied.

It may be that the court’s downward departure under Section

5K2.0 is vulnerable on appeal, but, if overturned, the result

would decrease rather than increase the likelihood of a sentence

less severe than the one imposed. And, for the reasons given at

sentencing, the court is not persuaded (at least not on any

grounds argued or apparent from this record) that a non-

4 Guidelines sentence below the one the court has already departed

to is warranted.

Concededly, fifty-seven months (or 70-87 months, absent the

court’s departure) is not a lenient sentence for the offense of

conviction. But the Congress and the Sentencing Commission could

reasonably conclude that a person twice convicted of a crime of

violence who subsequently possesses firearms, presents a

heightened and serious danger to the public sufficient to warrant

stiff penalties aimed at dissuading both that person

specifically, and others like him generally, from having firearms

under their control. Thus, the Guidelines counsel a serious

sentence. The question then becomes, whether there are other

circumstances or facts present that warrant a different — here,

less severe — sentence.

Had the facts of this case been different — had defendant

simply gone to a commercial firing range with a friend and, due

to plausible ignorance, rented firearms to engage in recreational

target-shooting under close supervision and in a controlled

setting, those circumstances, coupled with his recent productive

work history, fulfilled family responsibilities, compliant

behavior while on bail and probation, and seemingly sincere

effort to change the direction of his life, may well have

5 warranted a Booker sentence somewhat below the departed-to 57

months imposed in this case. But those are not the facts.

This defendant carried a firearm to the range on his person;

he knew he was prohibited from possessing firearms; he

deliberately and falsely denied his disqualifying prior felony

convictions to facilitate his acquisition of firearms; and he

rented, possessed, and fired those weapons. Accordingly, the

court declined to impose a lesser sentence after having

considered the circumstances as a whole, counsel’s argument, and

the factors described in

(a), particularly the

need for specific and general deterrence.

Given the need for specific and general deterrence, and the

seriousness of the offense, albeit in a context found to warrant

a downward departure, even if defendant obtains a new sentencing

hearing on appeal, it does not seem “likely” that a “reduced

sentence to a term of imprisonment less than the total of the

time already served plus the expected duration of the appeal

process” will result.

(b)(B)(iv).

S o , even stretching a few points in defendant’s favor —

i.e., that he “clearly and convincingly” poses no flight risk

(notwithstanding his potential deportation), and poses no danger

6 to the community (notwithstanding his history of violence,

including felony convictions and multiple restraining orders),

defendant still fails to satisfy the conditions necessary to

obtain bail pending appeal, because the factual and legal issues

he proposes to raise on appeal are not likely to result in a

reduction in his sentence below the total time already served

(here, about one year in detention on a warrant obtained by the

Bureau of Immigration and Customs Enforcement)1 and the expected

duration of the appeal process (usually about six months to one

year).

The Motion for Bail and Stay Pending Appeal (document no.

35) is denied.

SO ORDERED.

Steven J __McAuliffe 'Chief Judge

July 12,2007

cc: Debra M. Walsh, AUSA, Esq. Bjorn F. Lange, Esq. Jeffrey S. Levin, Esq.

1 The court assumes defendant will receive credit for that time, about one year, toward the current sentence.

7