                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4139



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


WYNN STEPHEN PHILLIPS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Matthew J. Perry, Jr., Senior
District Judge. (3:04-cr-00463-MJP)


Submitted:   October 11, 2006             Decided:   November 7, 2006


Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James B. Babb, HOWLE & BABB, LLP, Sumter, South Carolina, for
Appellant. Reginald I. Lloyd, United States Attorney, Stacey D.
Haynes, Assistant United States Attorney, Columbia, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           Wynn Stephen Phillips appeals from the twenty-four month

sentence imposed pursuant to his guilty plea to selling a firearm

to an out-of-state resident.    He asserts that his guideline range

was miscalculated and that his sentence was unreasonable.           We

affirm.



                                  I.

           Phillips first contends that the district court erred in

failing to calculate his offense level based on the fact that he

was a firearms collector under U.S. Sentencing Guidelines Manual

§ 2K2.1(b)(2) (2004) (providing for reduced offense level if

defendant possessed “all ammunition and firearms solely for lawful

sporting   purposes   or   collection”).   The   commentary   to   the

guidelines provides that, while determining whether the firearms

were possessed for collection purposes, the court should consider

the surrounding circumstances, including the number and type of

firearms, the amount and type of ammunition, the location and

circumstances of possession, the nature of defendant’s criminal

history, and the extent to which possession was restricted by local

law.   USSG § 2K2.1(b)(2), cmt. (n.7).     We find that the plain

language of the guideline and the commentary support the conclusion

that Phillips was not eligible for the § 2K2.1(b)(2) reduction

because he was involved in selling firearms.       United States v.


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Miller,   224    F.3d    247,      251    (3d   Cir.   2000)   (holding    that   the

guideline requires that the firearms be possessed only, not sold,

transferred, or used); see also United States v. Clingan, 254 F.3d

624, 625-26 (6th Cir. 2001) (affirming district court’s denial of

the reduction where defendant sold guns to pawnshops to generate

cash).

            Moreover, even if the nature of Phillips’ conviction were

not   sufficient        to   bar     application       of    the   guideline,     the

circumstances of this case do not support the conclusion that the

firearms and ammunition were possessed “solely” for collection

purposes.   All the factors in the commentary cut against Phillips.

He possessed numerous firearms, including a machine gun and a

silencer, and over 9,000 rounds of ammunition; he was actively

involved in marketing and selling firearms; and he was a convicted

sex   offender     prohibited            from   possessing     firearms.        These

circumstances indicate that Phillips’ possession was, at least in

part, for the purpose of illegally selling firearms.                       Moreover,

during Phillips’ plea colloquy, the Government provided, as part of

the factual basis, that Phillips was not a collector.                       Phillips

agreed that the factual basis was true.                Accordingly, the district

court properly determined that Phillips was not eligible for a

reduction in his offense level for possession of the guns as a

“collector.”




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                                      II.

           Phillips next contends that the district court improperly

enhanced his sentence based on his possession of guns which were

the subject of counts dismissed pursuant to his plea agreement. He

asserts that this fact-finding was inappropriate after United

States v. Booker, 543 U.S. 220 (2005), and that it violated his

plea agreement.    However, sentencing courts have always maintained

the power to consider the broad context of a defendant’s conduct,

even when the court’s view conflicts with a jury verdict, see

United States v. Watts, 519 U.S. 148, 152 (1997), and Booker did

“not in the end move any decision from judge to jury, or change the

burden of persuasion.”       United States v. Morris, 429 F.3d 65, 72

(4th Cir. 2005), cert. denied, 75 U.S.L.W. 3167 (U.S. Oct. 2, 2006)

(No. 05-11378).    Finally, the plea agreement explicitly provided

that,   although   the    remaining    counts   of   the   indictment   were

dismissed, there was “no limitation” on the district court’s

consideration of Phillips’ background, character, and conduct for

purposes of imposing sentence.          Thus, the court did not err in

determining that Phillips was responsible for firearms that were

the subject of dismissed counts.



                                    III.

           Finally,      Phillips   contends    that   his   sentence    was

unreasonable because the district court did not make explicit


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findings regarding his “collector” status and did not provide

reasoning for choosing the imposed sentence.            With regard to his

collector status, Phillips asserts that the district court failed

to make the findings of fact required by his objection.             However,

there were essentially no disputed facts.               The only issue in

dispute was whether the facts of the case supported a finding that

Phillips was a “collector” under the meaning of USSG § 2K2.1(b)(2).

When the district court overruled Phillips’ objection, the court

implicitly    decided   that   Phillips   did   not    meet   the   guideline

requirements.

            The determination of whether Phillips’ circumstances

permitted a reduced offense level under USSG § 2K2.1(b)(2) is a

question of law that is reviewed de novo.                United States v.

Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989).              Thus, explicit

findings by the district court are not necessary for meaningful

appellate review. As discussed above, the district court correctly

concluded that the guns were not possessed solely for collection

purposes.

            Turning   to   Phillips’   claim    that   the    district   court

provided insufficient reasoning for choosing a twenty-four month

sentence, we have held that a sentencing court is presumed to have

considered the factors set out in § 3553(a) unless the record

indicates otherwise, and that it need not specifically address each

factor.     United States v. Legree, 205 F.3d 724, 728-29 (4th Cir.


                                  - 5 -
2000) (dealing with denial of motion to reduce sentence); see also

United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006) (“district

court need not explicitly discuss every § 3553(a) factor on the

record”), petition for cert. filed (June 20, 2006) (No. 05-11659).

Here, the district court explicitly stated that it considered the

§ 3553(a) factors, as well as Phillips’ background, the arguments

of counsel, and the guideline range.    Phillips has presented no

reason to doubt the veracity of the court’s statement, and thus, we

conclude that Phillips’ sentence was reasonable.

          Accordingly, we affirm Phillips’ sentence.   We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                          AFFIRMED




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