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UNITED STATES v. RISSMILLER

November 9, 1994

UNITED STATES OF AMERICA
v.
DENNIS K. RISSMILLER



The opinion of the court was delivered by: MUIR

 November 9, 1994

 MUIR, District Judge.

 I. Introduction.

 Rissmiller filed objections to the presentence report. Pursuant to Rissmiller's objections, the Probation Office filed two addenda, modifying the presentence report. Following the filing of the second addendum, Rissmiller filed a second set of objections, entitled "Defendant's Response to Second Amended Pre-Sentence Report." At the presentence conference on July 25, 1994, the Court set a hearing on disputed issues of fact. The Court also established a briefing schedule.

 Rissmiller argues that the Japanese double barrelled signal pistol found at his parents' Port Matilda residence does not qualify as a firearm under 26 U.S.C. § 5845(a) for purposes of determining his sentence and it was not in his possession.

 Rissmiller objects to a 3 level increase for the possession of nine firearms. Rissmiller contends that the increase in the offense level should be 1 because he was not in possession of the six firearms stored at the Port Matilda residence.

 Rissmiller further contends that the "Armed Career Criminal" provisions of the United States Sentencing Guidelines should not be applied to him for the following reasons: the Japanese double barrelled signal pistol does not fall within the purview of 26 U.S.C. § 5845(a); it was not in his possession; and that his 1974 conviction was not a "serious drug offense" as defined in 18 U.S.C. § 924(e). Rissmiller also claims that his possession of firearms did not have any connection with his marijuana trafficking.

 On October 17, 1994, we held a hearing on Rissmiller's objections to his presentence report. The following are the Court's findings of fact, discussion, and conclusions of law on the issues raised.

 II. Findings of Fact.

 1. On March 1, 1974 Dennis Rissmiller was arrested by the Pennsylvania State Police-State College on charges of Possession of LSD with intent to deliver, Possession of LSD, and Possession of Marijuana. (Undisputed, hereinafter "U")

 2. On September 23, 1974, Rissmiller was convicted of possession of LSD with intent to deliver, possession of LSD, and possession of marijuana in the Court of Common Pleas of Centre County, Pennsylvania and received a sentence of two years probation.

 3. On July 19, 1977 Dennis Rissmiller was arrested by the Office of the Attorney General, Bureau of Narcotics Investigation on charges of Possession of Cocaine with intent to deliver, Delivery of Cocaine, Possession of Cocaine, and Criminal Conspiracy. (U)

 4. On May 12, 1978 Rissmiller was convicted of Delivery of Cocaine in the Court of Common Pleas of Centre County, Pennsylvania and received a sentence of six (6) to twenty three (23) months imprisonment in the Centre County Prison. (U)

 5. On April 9, 1982 Rissmiller was arrested by the Ferguson Township Police on charges of Driving Under the Influence of Alcohol. (U)

 6. On July 23, 1982 Rissmiller was convicted of Driving Under the Influence of Alcohol in the Court of Common Pleas of Centre County, Pennsylvania and received a sentence of twelve (12) months probation. (U)

 7. On April 25, 1985 Rissmiller was arrested by the Pennsylvania State Police-Philipsburg on charges of Possession of a Prohibited Offensive Weapon (sawed-off shotgun), Delivery of Cocaine, Possession of Cocaine, Delivery of Marijuana, Possession with intent to deliver Marijuana, Possession of Marijuana, and Criminal Conspiracy (two counts). (U)

 8. On October 10, 1985, while released on bail for the arrest described in paragraph 7 above, Rissmiller was arrested by the Pennsylvania State Police-Philipsburg on charges of Driving Under the Influence of Alcohol. (U)

 9. On December 16, 1985 Rissmiller was convicted of Driving Under the Influence of Alcohol in the Court of Common Pleas of Centre County, Pennsylvania and received a sentence of one (1) to twelve (12) months imprisonment in the Centre County Prison. (U)

 10. On August 5, 1986 Rissmiller was convicted of Possession of a Prohibited Offensive Weapon (sawed-off shotgun), Delivery of Cocaine, Possession with intent to deliver Marijuana, and Criminal Conspiracy in the Court of Common Pleas of Centre County, Pennsylvania and received a sentence of eighteen (18) months to five (5) years in a State Correctional Facility. (U)

 11. On March 31, 1988, Rissmiller was released on parole after being advised by his state parole officer that he was not permitted to possess firearms while on parole. (U)

 12. On April 4, 1989, while on parole for the conviction described in paragraph 10 above, Rissmiller was arrested by the Pennsylvania State Police-Philipsburg on charges of Driving Under the Influence of Alcohol. (U)

 13. On July 21, 1989 Rissmiller was convicted of Driving Under the Influence of Alcohol in the Court of Common Pleas of Centre County, Pennsylvania and received a sentence of three (3) to twenty three and one-half (23 1/2) months imprisonment in the Centre County Prison. (U)

 14. Rissmiller was re-released from imprisonment on September 5, 1989 and continued on parole until its expiration on July 22, 1991. (U)

 15. On July 22, 1991, Kathie Rissmiller, the Defendant's mother, at the Defendant's request, telephoned the Centre County parole office to inquire whether the Defendant was allowed to hunt with guns and she testified that she was told he was allowed to hunt with guns.

 16. On July 23, 1991, Rissmiller was telephonically advised by his state parole officer that he would have to check with state and federal authorities to determine ...


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