27. On December 14, 1993 the same confidential informant went to the trailer in State College and met with Rissmiller. During their conversation, Rissmiller stated that he had a Japanese double barrelled handgun and that he would sell it for $ 1,000.
28. On December 16, 1993, Rissmiller purchased a .22 caliber rifle at Dershem's Sporting Goods in State College. In order to complete the purchase, Rissmiller signed a form in which he wrote "NO" in answer to the question of whether he had ever been convicted of a crime for which the maximum punishment could have exceeded one year. Above his signature on the form is a certification that advised Rissmiller that a "YES" answer to that question would disqualify him from purchasing or possessing firearms.
29. On February 1, 1994 the same confidential informant purchased one-half ounce of marijuana from Rissmiller at the trailer in State College for $ 115 in cash. The transaction took place in the bedroom area of the trailer where firearms were clearly visible. (U)
30. On February 9, 1994 the same confidential informant purchased one-quarter ounce of marijuana from Rissmiller at the trailer in State College for $ 60 in cash. The transaction took place in the living room area of the trailer and during the course of the conversation, Rissmiller acknowledged possession of an SKS assault rifle at his parents' residence. (U)
31. On March 1, 1994 a federal search warrant was served on the trailer in State College. Recovered from the bedroom area of the trailer were a Marlin Model 25 .22 caliber rifle S/N 12656085, a Marlin model 39m .22 caliber rifle S/N 261623634, a German military model 98 8mm Mauser S/N 3453, approximately one half pound of marijuana, and assorted ammunition including .22 caliber. (U)
32. During the course of the search of the trailer, Rissmiller was placed under arrest by state authorities on drug charges. He was read his Miranda warnings, which he waived, and stated that two of the three firearms found belonged to him. He further stated that he had purchased the third rifle at Dershem's Sporting Goods in State College in December, 1993, as a gift for Margaret Hillard.
33. The firearms and the marijuana were both stored in the master bedroom area of the trailer.
34. The firearms in the trailer were stored unloaded, and the ammunition was not stored in clips.
35. The firearms were not used to protect the marijuana or to facilitate any drug crimes.
36. The proximity of the firearms to the marijuana was coincidental because of the layout and limited size of the trailer and not because of any deliberate intention to connect the objects.
37. The visibility of the firearms during the drug transactions was not due to any deliberate intention to facilitate drug transactions.
38. On March 1, 1994, consent searches were conducted at both of the structures at 240 Mountain Road, Port Matilda, Pennsylvania. Consent to search the residence of Rissmiller's parents was telephonically obtained from both parents. In giving his consent, Mr. Edward Rissmiller stated that he did not have any handguns at his Port Matilda residence and specified what long guns belonged to him, including a shotgun.
39. Recovered from Rissmiller's parents' residence were a Waffenfabrik model 1909 Mauser rifle S/N 2574, a Chinese SKS 7.65 X 39 semi-automatic rifle S/N 8908262, a High Standard Sentinel .22 caliber revolver S/N 570392, a H & R model 732 .32 caliber revolver S/N AR9496, a Savage model 99DL .308 Winchester rifle S/N B145598, and a double barrel .12 gauge handgun. The firearms specified by Mr. Edward Rissmiller as belonging to him were not taken or inventoried. (U)
40. The Japanese double barrelled handgun is a signal pistol capable of being concealed on the person from which a shot other than a flare can be discharged and has a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell.
41. The search of the unfinished residence of Rissmiller at the Mountain Road address was authorized by Defendant Rissmiller. This residence which was under construction had a stove, refrigerator, propane gas service, some carpeting, and electricity. Found in the unfinished residence was a case (1,000 round) of ammunition for the SKS assault rifle.
42. The Japanese double barrelled signal pistol was stored at, and seized from, the 240 Mountain Road address, and not from the trailer in which Rissmiller lived.
43. The offense to which Rissmiller pled guilty involved no violence or threat of violence to anyone.
Rissmiller pled guilty to possession of firearms by a convicted felon, under 18 U.S.C. § 922(g). Because Rissmiller has 3 prior serious drug convictions, he is subject to an enhanced penalty under 18 U.S.C. § 924(e) and this makes him an Armed Career Criminal. This fact of being an Armed Career Criminal requires that U.S.S.G. § 4B1.4 be used to calculate his offense level. In the presentence report, the Probation Officer calculated Rissmiller's base offense level as 26 under U.S.S.G. § 2K2.1(a)(1) without consideration of U.S.S.G. § 4B1.4. The Probation Officer then applied U.S.S.G. § 4B1.4 and determined that Rissmiller had a base offense level of 34. Because U.S.S.G. § 4B1.4 trumps U.S.S.G. § 2K2.1, Rissmiller's objections to the offense level determined under U.S.S.G. § 2K2.1 are irrelevant. Consequently, Rissmiller's first two objections pertaining to the application of U.S.S.G. § 2K2.1, are rendered moot. However, in the interest of a clear record, we will address those objections insofar as they may be relevant to a potential motion for downward departure.
Rissmiller contends that his base offense level should be 24 pursuant to U.S.S.G. § 2K2.1(a)(2) because he was not in possession of the Japanese double barrelled signal pistol found at his parents' Port Matilda residence and it does not qualify as a firearm under 26 U.S.C. § 5845(a).
Section 2K2.1(a)(1) states that a base offense level of 26 applies if the defendant
... had at least two prior felony convictions of either a crime of violence or a controlled substance offense, and the instant offense involved a firearm listed in 26 U.S.C. § 5845(a)....
Section 2K2.1(a)(2) states that a base offense level of 24 applies if the defendant
... had at least two prior felony convictions of either a crime of violence or a controlled substance offense....