*1 1251 McDaniel, 473, 484, (2001). v. 529 U.S. 120 S.Ct. agree We that “Petitioner’s claim 1595, (2000) (quotations L.Ed.2d 542 of error the state court does not omitted). to a federal amount constitutional claim is cognizable in this federal habeas carefully have Ship-
We
reviewed Mr.
Magistrate
action.”
Judge’s Report and
brief,
ley’s
district
disposition,
court’s
5;
Recommendation at
see also Cooper v.
appeal.
and the
on
Nothing
record
in the
Nelson,
99-3180,
No.
court erred in failing provide adequate
written conclusions law its order de-
nying Petitioner’s post-con-
viction relief. Petitioner raised this claim appeal
in his to the OCCA from trial
court’s order. Without specifically men-
tioning this procedural error, claim of OCCA the trial affirmed court’s denial of UNITED America, STATES post-conviction relief. Plaintiff-Appellee, opportunity We take this to con v. “[fjederal firm that habeas does not review COLLINS, Carlos Defendant-Appellant. extend to the purely correction of state law procedural errors that do rise to 01-4196. No. level aof constitutional due process viola tion_” United States Court of Appeals, Kaiser, 00-6080, Davis No. Circuit. Tenth 895603, 6, WL at *1 July Cir.
2000), denied, 944, cert. 532 U.S. 121 S.Ct. 20, Dec. 1409, 149 L.Ed.2d (unpub lished); McGuire, see Estelle v. also 62, 67-68,
U.S. 112 S.Ct. 116 L.Ed.2d (1991) (“It province not the
federal court to habeas reexamine state
court determinations on ques state-law
tions.”);
Gibson,
Romano
(10th Cir.),
denied,
cert.
534 U.S.
,
122 S.Ct.
1046 *2 * the briefs: on
Submitted Public De- Killpack, Federal B. Steven Wilson, fender, Keith Assistant and Scott Defender, City, Salt Lake Public Federal Defendant-Appellant. UT, for the Warner, Attor- M. Paul Viti, Assistant United John and Felice ney, UT, for City, Attorney, Salt Lake Plaintiff-Appellee. EBEL, PORFILIO Before LUCERO, Judges. Circuit LUCERO, Judge. Circuit one pled guilty to count Collins Carlos being a felon 922(g)(1) of U.S.C. violation imprison- eighteen months’ sentenced su- ment, by twenty-four months’ followed * 34(f) Cir. R.App. P. 10th to Fed. pursuant request, the case is unanimous- parties' theAt 34.1(G). argument R. ly oral without ordered submitted pervised appeal, release.1 On dis- If the defendant ... possessed all am- putes only sentence, the calculation of his munition firearms for lawful arguing that the district court erred sporting purposes collection, and did *3 refusing apply a to reduction in base of- not unlawfully discharge or otherwise applicable level fense defendants who unlawfully use such firearms or ammuni- “possessed all ammunition and firearms tion, decrease the offense level deter- solely sporting for lawful purposes col- mined above to level 6. lection, unlawfully and did not discharge or added). (emphasis 2K2.1(b)(2), § U.S.S.G. unlawfully otherwise use such firearms or cmt. n. 10 provides: further 2K2.1(b)(2). ammunition.” § U.S.S.G. (b)(2), Under Subsection “lawful sport- jurisdiction pursuant We to 18 U.S.C. ing purposes or collection” as deter- 3742(a) § § and 28 U.S.C. 1291. Because mined by the surrounding circum-
we conclude that the district court failed to stances, provides for a reduction to an properly examine surrounding circum- offense level of 6. Relevant surrounding in determining stances pur- whether the circumstances include the number and pose behind Collins’s solely was type firearms, of the amount and type of lawful, one, a required by as is ammunition, the and location circum- Guidelines, the Sentencing we vacate Col- stances and actual of lins’s sentence and remand for resentenc- the nature of the defendant’s criminal ing. history (e.g., prior convictions for of- involving firearms), fenses and the ex- tent to which possession was restricted 21, 2000, On November Collins took his by local law. to a repair automobile shop Blanding, added). (emphasis Utah to have repair some work The district done. court de- Finding himself nied without Collins’s motion pay applied the means and the stan- for repairs, dard fourteen, Collins left base offense level of with a rifle, 30-06, Winchester two-level reduction acceptance Model for as of re- security payment. later, sponsibility, days resulting Three in a net offense level returned, twelve, Collins paid criminal remaining history category III. $200 car, he owed on the Collins and received a at midpoint retrieved his rifle. sentence 4, 2000, On December the corresponding guideline range: Collins returned repair eighteen shop for repairs imprisonment, additional months’ followed again by twenty-four once used his rifle as collateral months’ supervised release. 2K2.1(b)(2) §If the balance of the had applied, debt owed. The been rifle Collins eventually likely was taken from have had a base offense shop level six, agents FBI four, Collins was net arrested. level of offense history criminal category III. May In pled guilty to be- ing a in possession felon of a firearm in vi- In denying Collins’s motion for applica- olation of 18 § U.S.C. 922(g)(1). reduction, At the tion of the the district court sentencing hearing, Collins ap- moved for focused gun on use of the as Collins’s. plication 2K2.1(b)(2), collateral, U.S.S.G. reasoning rifle to provides, pertinent part: promise secure a pay for automobile felon, having Collins is a pled guilty to a two saddles from a barn. third-degree felony of theft in 1987 after steal- defendant for collection because itself, precludes,
repairs competing pur- “for the the firearms by used allowed reduction the offense-level into automobiles converting used pose of it demonstrates bartering as using firearms currency by “solely” purpose of tools”). government, To the in- from the two Apart one. must be construed unambiguous gun Collins used in which stances meaning. according plain its suggest collateral, is no evidence possessing that Collins’s “plain that the mean disagree a lawful than other anything gun result leads to the ing” of the *4 hunting permit had a He one. sporting The text of government. urged had and been tribe the Ute from two to show a defendant provision requires no There was weapon before. with (1) “possessed the defendant things: unlawful use. any of evidence solely for law and firearms all ammunition court’s district review We collection” and purposes or sporting ful error, clear determinations factual or unlawfully discharge that he “did 1275, Dudley, 62 F.3d United or unlawfully use such firearms otherwise (10th Cir.1995), interpretation and its 1276 2K2.1(b)(2) (em § ammunition.” U.S.S.G. Sentencing Guide application of and added). provision note that the phasis Mojica, 214 novo, lines de possession between makes a distinction Cir.2000). (10th It is the F.3d use; not be inter provision must applicabili to show burden collapses, that this preted such distinction 2K2.1(b)(2). Dudley, 62 § ty of U.S.S.G. nullity. a provision rendering part of the F.3d at Babbitt, USA, Inc. v. F.3d Oxy See Cir.2001) (10th (stating that 1001, 1006 II avoid, possible, must “wherever courts because government, to the According that would render statutory interpretation in two rifle as his collateral used in the provisions same superfluous other to his repairs to secure instances isolated omitted)); see also (quotation enactment” in a automobile, man- used his firearm he F.3d Thompson, Lamb v. “solely for possession with ner inconsistent Cir.2001) (reiterating the “cardinal U.S.S.G. purposes.” lawful effect, duty give it our principle that added). 2K2.1(b)(2) Under (emphasis § and word every clause possible, if any legal provision, reading of the this an entire than to emasculate statute rather use, con- even the broader non-sporting alteration omit (quotations section” sporting purpose, lawful of an text overall ted)). 2K2.1(b)(2). § precludes element, possession, to the first As position that it
Thus, government’s it is the indicate whether does not determinative largely that is is actual use 2K2.1(b)(2) par “purpose” is be considered applicable. § of whether the entire context or within view, ticular moment inconsis- Collins’s According to However, possession. of the defendant’s pos- transformed tent use indicates ten to comment rendered gun sessing be sporting purposes” “lawful inapplicable. See United reference determined Clingan, States v. language of the com The
Cir.2001) circumstances.” sale of repeated that the (holding need to conduct that courts suggests ment firearms was inconsistent with analysis a broad factual context Id. While consistent repeated non- determining provision before whether the sporting use suggest would that one of Indeed, applied. can be there would no the purposes be awas non- need to look to “surrounding one, precluding circum- application of if any legal, stances” non-sport- 2K2.1(b)(2), instance is not the case here. automatically rendered provi- Momentary exploitation of a rifle’s inher- inapplicable. sion Accordingly, we have monetary ent value or physical properties stated that examination of surrounding cir- within the broader context of possession cumstances “is mandated.” 214 for lawful sporting purposes not, F.3d at 1173. The district facto, court’s focus on ipso preclude application of pro- “solely” the word in the first half of the vision where the firearm has never been provision any eviscerates distinction be- used as for offensive or defen- tween and use and would ren- sive purposes, for any pur- unlawful part der the second pose. redun- for the element, As second unlaw- dant use, non-sporting ful it is uncontested that Collins did otherwise, preclude application of not discharge use or the firearm in an un- *5 provision. the lawful manner.2 Comment ten aspect indicates that one 2K2.1(b)(2) § This reading of is consis of “surrounding circumstances” is “actual tent plain with the meaning purpose of 2K2.1(b)(2), § use.” U.S.S.G. cmt. n. 10. provision. the We have noted that Accordingly, we noted that have actual or “clearly is punish intended to important intended use is an factor in de innocent possession and use of a firearm termining purpose the possession. of Mo less severely, and improper use more se jica, 214 However, F.3d at 1172. verely.” while Mojica, 214 F.3d at (quot purpose the possession of may be in Jones, States v. United 158 F.3d by formed actual Cir.1998)). the fact that a fire Mojica stands for arm has inherent monetary value that proposition 2K2.1(b)(2) § the that exploited briefly on two broadly occasions be read to encompass circum does not alter the purpose nature of his stances are that consistent provi with the in possessing the firearm in the first provide sion’s intent to a punish lesser place. Actual use but is one of the “sur ment for of a firearm that is rounding circumstances” which 2K2.1(b)(2) the more benign. § Even if were meaning of “lawful sporting purpose” is to ambiguous applied situation, as to Collins’s ' be evaluated. application “[T]he note re strictly construing any ambiguity in quires the court to totality 2K2.1(b)(2), § examine which the ap the. district court circumstances, including the specific pears done, the to have “grievous is circumstances of possession and refusing actual guideline consider the as a use, rather than relying single on a factor result of interpretation narrow results ” preclude application of guideline.” the a significantly higher base .... level Mo that, 2. contrary We stress statute, language that a court is to look to: dissent, suggested by (1) the reading our purpose the posses- behind the defendant's 2K2.1(b)(2) sion; § any does not render any lawful whether unlawful innocent use subject to the any Sec- reduction. use. While unlawful use automati- " 2K2.1(b)(2) tion is not ‘catchall cally preclude application provision, the applicable not, to all purposes pos- innocent may may for depending use on the sessing a firearm.” 214 F.3d at purpose 1172. possession, of a defendant's as deter- Rather, herein, as stated following plain the by surrounding mined circumstances. in- 2K2.1(b)(2) by two precluded Thus, any ambigui at 214 F.3d jico, lawful, use. On non-sporting stances of Collins. in favor ty cuts look remand, court should the district approach is government’s While to determine circumstances” law of our in the case support without posses- of Collins’s purpose whether cited circuits, the cases most of sister one a lawful solely sion was broader, taken government Collins’s unlawful. any use was whether analyzing approach contextual more case is and the is VACATED sentence purpose whether resentencing. REMANDED for In one. United a lawful (6th Cir. F.3d 624 Clingan, govern PORFILIO, Circuit by Senior 2001), example, cited JOHN C. proposition Judge, dissent. ment for precludes purposes financial I dissent. believe respectfully I sur reduction, to the looked of U.S.S.G. interpretation court’s and concluded rounding circumstances it fatally flawed because was financial. purpose overall beyond guideline’s scope broadens acquired thirteen defendant Because purpose. intended sold period and in a three-month firearms it was clear pawnshops, of them court’s correctly six understand the If firearms was possessing hypothe- upon the predicated it is opinion, Id. at 626. bartering tools. to use them a distinction draws sis that Solomon, In firearm, and use between *6 that (4th Cir.2001), court stated the to law- possession although it and restricts in of “permits a reduction the it still purposes, or sporting ful collection possessed was only if a firearm fense level that is of a firearm use applies or col purposes sporting solely lawful for as Hence, using firearm because lawful. (quotation purpose” no other lection—and unlawful, use not collateral is omitted). However, the emphasis purpose that was lawful. weapon for of the was no there remanded case was concludes therefore court The circum in the evidence employed have been (a 9mm question in gun that the stances” assessing defen- by the district or for possessed pistol) was ever I believe Respectfully, sentence. dant’s case, in In the instant purposes. collection ignores guideline the construction this that contrast, ample evidence there was scope. meaning, purpose, plain its hunting and used gun acquired was acknowledging that by must start by the Thus, cited cases purposes. any posses unlawful has Congress made ar government’s government support of a convicted by person firearm a of a sion (refusal apply the re gument in result 922(g)(1). Nonethe felony. 18 U.S.C. duction), analytical method: but deter less, Sentencing Commission must that courts they support the view sentencing purposes, that for mined possession context look to the broad possession of in which circumstances are pro application whether determine Moji benign. United States firearm is precluded. vision is Cir.2000) (10th ca, 214 F.3d Ill of the (recognizing the intent Commission specif proportional punishment to make district court We conclude conduct). Yet, noted as we illegal ic to find incorrect Mojica, the lenience by afforded acquisition Com- possession or of a firearm applied only , mission is to be when a fire- can benign be when the use of intended for sporting arm used or pur- collection gun is “solely” for pur- one of two poses. poses that would be lawful were the possessor
We conclude that the not a felon: lenity rule of re- either quires or guideline of the recreational consideration such hunting, as tar- get practice (2)' situations in competition; which the defendant or is not or gun sports collecting or collector target prac- enthusiast but his or —like tice, possession solely specialized associated use gun legiti- with or mately acquired related to lawful sporting possessed.1 or collection (i.e., purposes he or she has not used point The analysis is to make in a manner inconsistent with clear that the provisions reduction of the those purposes). guidelines for felons in possession do not lawful turn axiomatic on.the truism that a added). felon (emphasis at 1174 Id. can lawfully possess never a firearm. That the use aspect Rather, the availability of the reduction only applicable turns on the or use for which sporting purposes lawful or collection is a possessed firearm is acquired view shared other circuits. In United the lawfulness of such if it were to Shell, States v. F.2d be exercised a citizen not under any Cir.1992), defendant, a case in which the legal disability hunting, here, —lawful lawful convicted by a target practice, or gun collecting. felon under 18 922(g)(1), U.S.C. Id. (emphasis in original). court held that lawful “use” also under the See Bristow, guideline, States v. was limited to “sporting” use or Cir.1997) collection. Construing 2K2.(b)(l) (holding §§ judge “the district (2), the court lacked authority stated: depart downward be cause Sentencing specifical Guidelines subject
Both of the guideline provisions ly forbid a downward departure for recognize eco of a firearm is *7 reasons,” nomic though even physical fact defendant always and is illegal if the only once had used a possessor felon; lawfully possessed is a but that in addition firearm debt); as collateral to physical pay the his fact of is Wilson, United v. subjective 921, the States quality 878 F.2d 924 possession, (6th Cir.1989) (where by determined felon possessed the use fire by intended the arm possessor. debt, as collateral unpaid This for an ruling is better by understood “that under recognizing guideline sentencing the section levels guidelines only established for the presume the ‘intended lawful which use’ would support that when person the in physically possess- decrease the offense level is sport recreation”); the firearm a felon or is the or United States v. Miller, 247, intended use is (3rd Cir.2000) nefarious whether it be F.3d 252 224 robbery, armed aggravated assault, (rejecting argument defendant’s that he facilitating a drug transaction or the was entitled to a reduction because, like. guidelines The recog- nevertheless possessed he had the rifle for nize the possibility that éven a felon’s purposes up until the moment of Notwithstanding 1. logic Commission, by the fundamental em- the "target practice such as Circuit, ployed by the Fifth I would not read competition.” or guideline the to include words not employed
1258
10,
Third Cir-
the
note
conviction);
ence
led to
conduct
the
has instructed:
Ramirez-Rios,
cuit
270 F.3d
v.
States
United
Cir.2001) (no
courts
view,
authorizing
be-
the
reduction
In
1185,
our
1187
to which
self-
use”
gun for
the “actual
into
possessed
inquire
defendant
cause
ques-
in
Hatpin, 139
firearms
put
v.
the
States
the defendant
United
protection);
Cir.1996) (same);
has
(2nd
tion,
Sentencing
Unit-
Commission
310,
the
311
F.3d
800,
relevant
Cousens,
F.2d
803
the
942
intent to extend
its
evinced
v.
ed States
pos-
(same);
(i.e.,
the defendant
Cir.1991)
United
whether
(1st
inquiry
Cir.1990)
for lawful
all firearms
928
sessed
Wyckoff, 918
rise to
giving
to the conduct
(same).
purposes)
conviction.
the instant
the
that when
recognize
courts
These
Miller,
252-
224 F.3d
the acts
conceived
Commission
Cir.2000).
(3rd
not
it did
“benign,”
collecting to be
use of
any “lawful”
just
so for
to do
intend
faulty
has drawn
the court
I believe
Although
felon.
by a convicted
a firearm
concepts of
between
distinction
that be-
recognize
could
the Commission
so
only way to do
The
possession.
moderating
of those acts
nature
nign
lan-
existence
imply
would be
employed
it
language
punishment,
the Commission
adopted by
not
guage
and limited
specific
quite
doing
so
interpretation
an
Such
guideline.
hold to
hardship. To
economic
F.3d at
excludes
capacity.
our
beyond
Less,
render
contrary would
Cases,
Each
More or
(citing 62
intend-
the Commission
Had
meaningless.
v. United
Jars
Jam
Containing Six
aof
any
lawful use
593, 596,
make
States,
ed
S.Ct.
340 U.S.
reduction,
not
would
it
subject
(1951),
to the
proposition
for the
L.Ed.
or “collec-
“sporting purposes”
applied “without
emphasized
should be
guidelines
“If the
agrees:
The
Circuit
from the stat-
subtracting
Sixth
words
adding
tion.”
for the
to allow
intended
the court
extent
had
To the
utory language”).
Commission
it
analy-
possession,
innocent
a “broad
Mojica mandates
reduction
believes
add the use
have needed to
circumstances
sis” of
facts
disagree.
weapon,
of lawful uses
I
list
use of his
‘collecting’
Wilson,
Mojica
F.2d at
or else-
Nothing
2K2.2.”
have said
section
we
consider-
straying into
our
permits
where
upon
ground
an additional
There
hunting or
than
uses
of lawful
other
ation
Citing
court.
disagree
with
surrounding
examining
collecting when
2K2.1(b)(2), the
10 to
application note
*8
circumstances.2
notion
analysis with the
supports its
regard
might
we
gov-
Although
in this case
of the
the “lawfulness”
benign,
firearm as
circumstances.”
his
by the
erned
sentencing,
in
correct,
subject to lenience
there is
thus
certainly
While
make.
for us to
judgment
is not
note
nothing contained
of the firearm
en- The defendant’s
“circumstances”
those
suggests
of law. Whether
illegal as matter
specified
those
acts in addition to
compass
payment
gun secure
Indeed, his use
refer-
itself.
in his
Indeed,
Mojica
circumstance”
dealt
we
remember
2.
must
was received
transported
a rifle
who
awith defendant
—a
hunting.
go
definition.
obtained
his brother
Thus,
"surrounding
is for the Commission to decide the first
instance. affirm judgment
the district court. America,
UNITED STATES of
Plaintiff-Appellee, TUCKER,
Steven Brent Defendant-
Appellant.
No. 01-3243. Appeals, States Court of
Tenth Circuit.
Dec.