The opinion of the court was delivered by: MUIR
On September 1, 1992, a grand jury returned a two-count indictment charging the Defendant, Jeffrey Dershem, with possession of a firearm by a convicted felon and with concealment of a stolen firearm in violation of 18 U.S.C. §§ 922(g) and 922(j), respectively.
On October 26, 1992, Dershem entered a plea of guilty to possession of a firearm by a convicted felon pursuant to a written plea agreement which provided, inter alia, for the dismissal of the other charge. We accepted the guilty plea as well as the plea agreement and ordered the preparation of a presentence report.
On January 7, 1993, Drew Thompson, U.S. Probation Officer, filed the presentence report. The probation officer calculated the base offense level to be 12, the total offense level to be 12, the guideline fine range to be $ 3,000 to $ 30,000, and the guideline imprisonment range to be 21 to 27 months. Dershem filed objections to the calculation of the base offense level, the two-level enhancement thereto based on the conclusion that the firearm was stolen, and the addition of one criminal history point for Dershem's conviction for retail theft. In his sentencing brief Dershem contended that he is entitled to a downward departure as a recovering alcoholic who has maintained his sobriety since October of 1991.
A presentence conference was held February 17, 1993, and a presentence hearing was held on March 25, 1993. The delay between the two is attributable to the fact that Dershem desired to retain an expert witness. The following are the Court's findings of fact, discussion, and conclusions of law as to the issues raised.
1. On June 27, 1983, Jeffrey Dershem was convicted in the Court of Common Pleas of Centre County, Pennsylvania, of Driving Under the Influence of Alcohol (2 counts) and Carrying a Firearm without a License.
2. The above charges arose from two incidents:
2.1 On February 18, 1983, Dershem was driving under the influence of alcohol. (Undisputed, hereafter "U")
2.2 On April 30, 1983, Dershem was driving under the influence of alcohol and two .45 caliber handguns were found under the driver's seat of the vehicle Dershem was driving. (U)
3. On October 7, 1983, Dershem was convicted of Aggravated Assault (2 counts) in the Court of Common Pleas of Centre County, Pennsylvania. (U)
4. The above charges arose when Dershem, while under the influence of alcohol, used his vehicle to push another vehicle off the road and caused severe injuries to the occupants of the other vehicle. (U)
5. As a result of the above conviction, Dershem was sentenced to two and one half (2-1/2) to eight (8) years imprisonment. (U)
6. On December 20, 1985, Dershem was paroled from the Community Corrections Center, Johnstown, Pennsylvania. (U)
7. On January 10, 1986, Dershem was recommitted to state custody due to parole violations of possession of a handgun and consumption of alcohol. (U)
8. On December 18, 1988, Dershem was reparoled and released from custody. (U)
9. After waiving representation by counsel, Dershem pled guilty on November 15, 1989, to the summary offense of Retail Theft of items valued at $ 19.48 before District Justice McDermott in Williamsport, Pennsylvania. (U)
10. As a result of the Retail Theft conviction, Dershem was sentenced to pay a $ 300 fine and $ 48.50 costs. (U)
11. On July 30, 1991, Dershem's parole term expired and he was released from supervision. (U)
12. On October 14, 1991, Dershem went to the home of Richard H. Lang of State College, Pennsylvania, a retired Marine Corps Major who has been a representative for firearms companies and who maintains an extensive gun collection.
14. On October 15, 1991, the following day, troopers from the Pennsylvania State Police responded to a complaint concerning a vehicle in the parking lot of Gensimore Trucking, located in Spring Township, Centre County, Pennsylvania.
15. Upon arriving at the scene, the troopers observed a vehicle sitting in the parking lot with the engine running and Dershem, the only occupant, passed out in the driver's seat. (U)
16. On the front seat beside Dershem, the troopers found an AMT stainless steel .45 caliber semi-automatic handgun S/N A02170. (U)
17. The troopers secured the gun and found it to have one round in the chamber and five in the clip. (U)
18. The handgun was found to be holstered with the hammer cocked and the safety mechanisms engaged. (U)
19. An ownership check of the handgun revealed that it was legally registered to Richard Lang of State College, Pennsylvania. (U)
20. Dershem was determined to be under the influence of alcohol and arrested. (U)
21. A search of the vehicle led to the recovery of a police scanner with headphones programmed to local law enforcement frequencies, but was not at that ...