                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4233


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

MICHAEL KEITH NICHOLS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Chief District Judge. (1:08-cr-00232-JAB-1)


Submitted:    November 5, 2009              Decided:   January 4, 2010


Before MOTZ, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John D. Bryson, WYATT EARLY HARRIS & WHEELER, LLP, High Point,
North Carolina, for Appellant.      Anna Mills Wagoner, United
States Attorney, Terry M. Meinecke, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Michael      Keith      Nichols        pled        guilty        to     unlawful

possession of a firearm by a convicted felon in violation of 18

U.S.C. § 922(g)(1) (2006), and was sentenced to a term of thirty

months imprisonment.            He appeals his sentence, alleging that the

district court erred in failing to make a reduction under U.S.

Sentencing Guidelines Manual § 2K2.1(b)(2) (2008), for firearms

possessed solely for lawful sporting purposes or collection, and

failed    to     consider       properly      the    18     U.S.C.       § 3553(a)          (2006)

factors in imposing sentence.                 We affirm.

               We review a sentence for reasonableness under an abuse

of discretion standard.                Gall v. United States, 552 U.S. 38,

___,     128    S.    Ct.   586,       597     (2007).            This    review       requires

consideration          of       both     the        procedural           and     substantive

reasonableness         of   a    sentence.          128     S.    Ct.     at    597.         After

determining whether the district court properly calculated the

defendant’s       advisory       guideline         range,    we     must       then    consider

whether    the       district    court       considered       the    § 3553(a)         factors,

analyzed       the      arguments        presented          by      the        parties,       and

sufficiently explained the selected sentence.                             Gall, 128 S. Ct.

at 596-97; United States v. Carter, 564 F.3d 325, 330 (4th Cir.

2009).     Finally, we review the substantive reasonableness of the

sentence,        “taking        into     account            the     totality           of     the



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circumstances[.]”      United States v. Pauley, 511 F.3d 468, 473

(4th Cir. 2007).

            Nichols first contests the district court’s decision

that the exception in § 2K2.1(b)(2) for lawful sporting purposes

or collection did not apply.             Subsection (b)(2) provides that,

“[i]f the defendant . . . possessed all ammunition and firearms

solely for lawful sporting purposes or collection, and did not

unlawfully discharge or otherwise unlawfully use such firearms

or ammunition,” the offense level should be reduced to 6.                      The

commentary      to    § 2K2.1      states         that     the      “surrounding

circumstances” relevant to the determination include “the number

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

location and circumstances of possession and actual use, the

nature    of   the   defendant’s         criminal    history      (e.g.,     prior

convictions for offenses involving firearms), and the extent to

which possession was restricted by local law.”                     USSG § 2K2.1

cmt. n.6.      Nichols contends that the district court erred by

misinterpreting      the   term    “solely.”         The       district    court’s

interpretation of a guideline term is a legal issue reviewed de

novo.     United States v. Souther, 221 F.3d 626, 628 (4th Cir.

2000).

             Nichols argues that the district court overemphasized

the term “solely” by holding that his non-sporting use of one

firearm   disqualified     him    from       receiving   the    reduction.      He

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relies on United States v. Gaines, 276 F. Supp. 2d 570, 573

(N.D. W. Va. 2003) (holding that defendant was not disqualified

simply because he pawned one of two firearms otherwise used only

for hunting).     He also argues that this court should “give great

deference to the now constitutionally recognized significance of

protection,” based on the Supreme Court’s decision in District

of Columbia v. Heller, 128 S. Ct. 2783 (2008) (holding that the

Second Amendment guarantees an individual’s right to possess and

carry arms).

              Gaines is not binding here, and Heller is inapposite

because it does not deal with violations of § 922(g)(1).                          We

held in United States v. Solomon, 274 F.3d 825, 828-29 (4th Cir.

2001), that “even a sportsman or collector is not entitled to a

reduction     under    § 2K2.1(b)(2)     unless      he     possesses     a   firearm

exclusively for sporting or collection purposes.”                       In Solomon,

while   not    directly    addressing       the    issue    presented     here,   we

explicitly     equated    “solely,”     as    used     in    § 2K2.1(b)(2)      with

“exclusively.”        Therefore, we conclude that the district court

correctly     applied     § 2K2.1(b)(2)      in     this    case    and   correctly

denied Nichols the reduction.

              Nichols next contends that the district court failed

to   consider    the     nature   of   his        offense    as    required     under

§ 3553(a)(1)     because,     although       the    court     acknowledged      that

Nichols may have believed his conduct was legal, the court did

                                        4
not   find    that    factor        sufficient       to    warrant     a     sentence   of

probation.         Nichols     also    asserts       that     the    district       court’s

ruling indicated that “it believed that considering the nature

and circumstances of the offense was limited to determining a

sentence within the guideline range.”

             In § 3553(a)(1), the district court is directed to

consider “the nature and circumstances of the offense and the

history      and    characteristics         of    the        defendant[.]”           “When

rendering     a     sentence,        the   district         court     ‘must     make    an

individualized        assessment       based      on       the     facts     presented.’”

Carter, 564 F.3d at 328 (quoting Gall, 128 S. Ct. at 597).

Thus,   “‘[t]he      sentencing       judge      should      set     forth     enough   to

satisfy the appellate court that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal

decision     making      authority.’”          Id.        (quoting    Rita     v.    United

States, 551 U.S. 338, 356 (2007)); see United States v. Moulden,

478 F.3d 652, 658 (4th Cir. 2007).

             Here, the court considered the nature of the offense

as required under § 3553(a)(1), as well as Nichols’ history and

characteristics.              The    court’s     disagreement           with    Nichols’

position     was   not    a    procedural      error.            Moreover,    the   record

contains nothing that suggests the court believed it could not

impose a sentence below the guideline range.                           Before imposing

sentence, the district court noted that Nichols may have been

                                           5
ignorant of the fact that his conduct was unlawful, that he had

a   consistent    history   of    gainful       employment,    and   that    he   had

accepted responsibility for his offense.               The court stated that,

“[t]aking all these matters into account,” a sentence within the

guideline range was appropriate.                 Although the court did not

discuss all the § 3553(a) factors, it responded to the parties’

arguments and provided an individualized assessment.

           Accordingly, we affirm the 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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