to the gun and never received any bill of sale for it.
31. Lang never contracted with Dershem to sell the gun to Dershem.
32. Dershem committed perjury at his presentence hearing when he testified that he purchased the weapon involved in this case from Lang on October 14, 1991.
At 1:38 a.m. on October 15, 1991, state police troopers found Dershem slouched and apparently passed out behind the wheel of his automobile in the parking lot of a company with which Dershem had no affiliation. The engine was running. The troopers found an AMT .45 caliber semi-automatic handgun on the front seat. Although the gun was in a holster and the safety mechanisms were engaged, the weapon was cocked and loaded with a bullet in the chamber and with five bullets in the inserted clip. An unplugged police scanner programmed to local law enforcement frequencies was in the car. The police officers detected the odor of alcohol on Dershem's breath. Section 2K2.1 of the United States Sentencing Guidelines Manual, 1990 edition, entitled "Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition," provides in part as follows:
(a) Base Offense Level . . .:
(2) 12, if the Defendant is convicted under 18 U.S.C. § 922(g), (h), or (n); or if the Defendant, at the time of the offense, had been convicted in any court of an offense punishable by imprisonment for a term exceeding one year;
(b) Specific Offense Characteristics . . .
(2) If the firearm was stolen . . ., increase by 2 levels. Dershem pled guilty to a violation of 18 U.S.C. § 922(g) in this case and, in addition, at the time of the offense had been convicted of an offense punishable by imprisonment for a term exceeding one year.
The probation officer determined Dershem's base offense level to be 12 and increased that level by two levels based on the conclusion that the weapon was stolen. Dershem objects thereto on the ground that the jury in the state court proceeding found him not guilty of the theft of the firearm and related charges and that those acquittals "should substantially inform this Court's sentencing decision." Conduct of a defendant which was the subject of an acquittal may be considered at sentencing under the preponderance of the evidence standard. United States v. Ryan, 866 F.2d 604 (3d Cir. 1989).
Richard H. Lang, a retired Marine Corps Major who has been employed as a representative of firearms companies and who maintains an extensive gun collection testified at the presentence hearing that the weapon found in Dershem's possession on the evening of October 15, 1991, was owned by and registered to Lang and that Dershem stole the weapon from him. Lang is a thoroughly credible witness.
Dershem testified at the presentence hearing that he bought the weapon from Lang on October 14, 1991, for $ 649. Dershem stated that he had previously informed Lang of his desire to purchase an unregistered firearm, that during their meeting Lang delivered to him the .45 ATM pistol, that Lang said the gun was unregistered, that Dershem paid Lang $ 100 as a deposit on the weapon, and that Dershem left Lang's residence with the gun.
Dershem had no receipt for the alleged $ 100 down payment on the gun, no bill of sale and gave no credible reason why he would seek to purchase an unregistered hand gun. His testimony that Lang told him the gun was unregistered in light of Lang's registry of many guns in his collection is not credible. We do not believe Dershem's version of the events which occurred at Lang's residence on October 14, 1991. We are persuaded by a preponderance of the evidence presented at Dershem's presentence hearing that Dershem stole the weapon from Lang's home on October 14, 1991.
Section 3C1.1 of the Sentencing Guidelines, entitled "Obstructing or Impeding the Administration of Justice," provides for an enhancement of two levels if "the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during . . . sentencing of the instant offense, . . . ." U.S.S.G. § 3C1.1 (1990).
The United States Supreme Court, in United States v. Dunnigan, U.S. , 113 S. Ct. 111 (1993), held that a court may enhance a defendant's sentence under § 3C1.1 of the Sentencing Guidelines where that defendant has committed perjury while testifying at trial.
We are of the view that Dershem committed perjury at the presentence hearing when he stated that Lang had sold him the weapon. Although Dunnigan specifically addressed perjured testimony which was submitted at trial, § 3C1.1 also applies "during . . . sentencing of the instant offense." U.S.S.G. § 3C1.1 (1990). We are of the view that Dunnigan and § 3C1.1 authorize us to apply a two-level enhancement to Dershem based on the testimony we determine to have been perjured which was given by him at his presentence hearing.
U.S.S.G. § 3E1.1 provides in part that "if the defendant clearly demonstrates a recognition and affirmative acceptance of personal responsibility for his criminal conduct, reduce the offense level by 2 levels." (Emphasis added.) Application Note 1 to that section sets forth several items that we may consider when determining whether the defendant is entitled to a two-level reduction for acceptance of responsibility, including, "voluntary and truthful admission to authorities of involvement in the offense and related conduct." Application Note 4 to § 3E1.1 states that "conduct resulting in an enhancement under § 3C1.1 (Obstructing or Impeding the Administration of Justice) ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply."
The facts in this case do not clearly demonstrate that Dershem has accepted responsibility for his criminal conduct. Instead, Dershem's perjury reveals that he has not accepted responsibility for the theft of the weapon. Dershem's version is not an innocent misrecollection but is a deliberate attempt to obstruct this Court's ability to determine the truth on a material matter. Furthermore, this is not an extraordinary case where any adjustments under §§ 3C1.1 and 3E1.1 are necessary. The perjured testimony addressed a core issue in this case. The facts in the case do not clearly demonstrate that Dershem has accepted responsibility for his criminal conduct. Consequently, we will not only add two levels based on § 3C1.1, but we will also nullify the reduction of two levels based on Dershem's acceptance of responsibility which the probation officer had awarded pursuant to § 3E1.1.
Dershem objected to the calculation by the probation officer of a base offense level of 12. He contends the base offense level should be 6 because Dershem possessed the weapon only for the lawful purposes of collecting and target shooting. In support of his argument Dershem relies on Application Note 2 to § 2K2.1, which states that
Under Section 2K2.1(b)(1), intended lawful use, as determined by the surrounding circumstances, provides a decrease in the offense level. Relevant circumstances include, among others, the number and type of firearms (sawed off shotguns, for example, have few legitimate uses) and ammunition, the location and circumstances of possession, the nature of the Defendant's criminal history (e.g., whether involving firearms) and the extent to which possession was restricted by local law.
The burden is on Dershem to show that he is entitled to the application of § 2K2.1(b)(1). United States vs. McDowell, 888 F.2d 285 (3d Cir. 1989). We will review each of the factors enumerated in the Application Note upon which Dershem relies.
With respect to the number and type of firearms involved, there was only one .45 caliber semi-automatic pistol involved. It is undisputed that Dershem does not collect weapons. With respect to the quantity and type of ammunition, only six rounds were present. Such a few number of rounds of ammunition make it unlikely that Dershem possessed the weapon for target practice, especially in light of the circumstances surrounding his apprehension. The location and circumstances of Dershem's possession of this weapon are inconsistent with any lawful sporting or collection purpose.
With respect to his criminal history, Dershem's convictions include carrying a firearm without a license. The fifth and final factor to be weighed is the extent to which possession is restricted by local law. That factor is relevant because Dershem did not have a permit to carry the weapon as is required by Pennsylvania law.
After considering each of those factors, we conclude that Dershem has failed to establish that he possessed the weapon for any lawful sporting or collection purpose. We overrule Dershem's objection to a base offense level of 12.
The probation officer assigned a criminal history point for Dershem's 1991 conviction for retail theft in a Pennsylvania state court in Williamsport, Pennsylvania. Dershem objects and states that his conviction of that offense is excludable under § 4A1.2(c)(1) of the Sentencing Guidelines because the penalty in that offense involved neither a period of probation for one year nor a term of imprisonment for 30 days and because retail theft is dissimilar to a felon's possession of a weapon.
Section 4A1.2(c), entitled "Sentences Counted and Excluded," states that "sentences for a misdemeanor and petty offenses are counted, except as follows . . . ." Section 4A1.2(c)(1) of the Sentencing Guidelines lists the offenses that are not counted when calculating a defendant's criminal history score.
Dershem states that § 4A1.2(c)(1) specifically excludes "Insufficient funds check," and that Pennsylvania law analogizes such an offense to retail theft. Dershem concludes that his conviction of retail theft is excludable even though it is not listed in the Sentencing Guidelines because that offense is analogous, under Pennsylvania law, to one which is listed.
Dershem's argument is flawed in that the list of offenses specifically excluded by § 4A1.2(c)(1) is exhaustive and particularized. Although there are many offenses which may be considered analogous to those listed, the Sentencing Commission chose not to designate any offense other than those listed as excludable. Because the offense of retail theft is not listed as excludable, the probation officer properly considered it in determining Dershem's criminal history score.
The probation officer concluded that there is no basis for a downward departure in this case. Dershem argues that he is entitled to a downward departure because he is a recovering alcoholic who has remained sober for approximately 18 months.
A Policy Statement in § 5H1.4 of the Sentencing Guidelines states that "drug dependence or alcohol abuse is not a reason for imposing a sentence below the guidelines."
The United States Court of Appeals for the Third Circuit in interpreting that policy statement has held that a defendant's "post-arrest efforts to overcome his drug addiction and the effect that incarceration would have on those efforts are inappropriate grounds for departure from the guidelines." U.S. vs. Pharr, 916 F.2d 129, 133 (3d Cir. 1990). Pharr is controlling. Dershem is not entitled to a downward departure because he is a recovering alcoholic who has maintained his sobriety for approximately 18 months.
IV. Conclusions of Law.
1. Dershem did not possess the firearm in question for any lawful sporting or collecting purpose.
2. The firearm in question was stolen by Dershem from Lang.
3. The Probation Officer properly considered Dershem's summary conviction of retail theft in determining Dershem's criminal history score.
4. There are no factors warranting a downward departure in this case.
5. Dershem's base offense level is 12.
6. Dershem committed perjury at the presentence hearing.
7. Dershem willfully obstructed the administration of justice by giving perjured testimony at the presentence hearing.
8. An enhancement of two offense levels is appropriate because of Dershem's obstruction of the administration of justice at his presentence hearing.
9. Dershem's perjured testimony reveals that he has not accepted responsibility for his criminal conduct.
10. Dershem is not entitled to a two offense level reduction for acceptance of responsibility.
11. Dershem's total offense level is 16.
12. Dershem's Criminal History Category is IV.
13. The Guideline Imprisonment Range is 33-41 months.
14. The Guideline Fine Range is $ 5,000 to $ 50,000.
Base offense level as determined by
probation officer, P 16 of the presentence
Add for obstruction of the administration
of justice 2
Eliminate reduction for acceptance of
responsibility, P 15 of the presentence
Total offense level as redetermined by 16
Criminal History Category as determined
by the probation officer (no change),
P 23 of the presentence report IV
Guidelines Imprisonment Range as redetermined
by the Court 33-41 months
An appropriate order will be issued.
MUIR, U.S. District Judge
DATED: April 14, 1993
1. Each of Dershem's objections to the presentence report is overruled.
2. Dershem's base offense level is 12.
3. The two-level reduction in the offense level awarded by the probation officer based on Dershem's purported acceptance of responsibility is nullified.
4. The offense level is increased by 2 levels because of Dershem's obstruction in the administration of justice by way of his perjured testimony at the presentence hearing.
5. Dershem's total offense level is 16.
6. Dershem's Criminal History Category is IV.
7. The Guideline Imprisonment Range is 33-41 months.
8. The Guideline Fine Range is $ 5,000 to $ 50,000.
9. Sentence will be imposed at 4:15 p.m. on Friday, April 30, 1993.
10. The Clerk of Court shall provide a copy of this opinion and order to Drew Thompson, the probation officer who prepared the presentence report.
MUIR, U.S. District Judge
DATED: April 14, 1993
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