UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                              No. 96-4481

JOHN DANIEL LEASURE,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                              No. 96-4516

JOHN DANIEL LEASURE,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of Virginia, at Newport News.
John A. MacKenzie, Senior District Judge.
(CR-95-54)

Submitted: March 11, 1997

Decided: March 27, 1997

Before HAMILTON, WILLIAMS, and MOTZ, Circuit Judges.

_________________________________________________________________

No. 96-4481 affirmed and No. 96-4516 vacated and remanded for
resentencing by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Stephen P. Halbrook, Fairfax, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, Vincent L. Gambale, Assistant United
States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

John LeaSure was found guilty following a bench trial of one count
of possessing firearms not identified by a serial number. See 26
U.S.C.A. § 5861(i) (West 1989). On appeal, LeaSure asserts that his
conviction should be reversed because (1) the indictment failed to
state all of the elements of the offense and (2) the evidence was insuf-
ficient to support his conviction. The Government cross-appeals,
asserting that the district court abused its discretion by departing
downward from the Sentencing Guidelines. We affirm LeaSure's con-
victions, but remand for resentencing.

LeaSure was a federally licensed dealer and manufacturer of fire-
arms specializing in the manufacture and sale of silencers. His pri-
mary clients were the United States Government and foreign
governments, whom he sold silencers to with the authorization of the
United States. Nothing in the record suggests that LeaSure's firearms
business served as a front for illegal activities. During a routine com-
pliance inspection, several discrepancies were discovered in Lea-
Sure's inventory and record keeping procedures. Investigators,
accompanied by field agents of the Bureau of Alcohol, Tobacco, and
Firearms (BATF), returned to LeaSure's business approximately three
days later and executed a search warrant, seizing numerous firearms,
including silencers.

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LeaSure was indicted for "knowingly and unlawfully possess[ing]
nineteen (19) firearm silencers . . . which were not identified by serial
number . . . [i]n violation of [26 U.S.C.A.§ 5861(i)]." (J.A. at 8-9.)
Under the statute, it is unlawful for any person to"possess a firearm
which is not identified by a serial number as required by this chapter."
26 U.S.C.A. § 5861(i). Relying on our decision in United States v.
Daniels, 973 F.2d 272 (4th Cir. 1992), cert. denied, 506 U.S. 1086
(1993), LeaSure asserts that the failure to include in the indictment
the phrase "as required by this chapter," or to identify the provisions
implicated by the phrase, rendered the indictment invalid because the
phrase (and the implicated provisions) constitute essential elements of
the offense. Specifically, LeaSure asserts that the indictment should
have referred to 26 U.S.C.A. § 5842 (West 1989), which specifies the
requirements for serial number identification under the statute.*

Objections based on defects in the indictment must be raised prior
to trial. See Fed. R. Crim. P. 12(b)(2). Since LeaSure failed to object
to the language in the indictment prior to trial, we review his convic-
tion for plain error under Federal Rule of Criminal Procedure 52(b).
See United States v. Olano, 507 U.S. 725, 731-32 (1993); United
States v. Cedelle, 89 F.3d 181, 184 (4th Cir. 1996); United States v.
David, 83 F.3d 638, 640, 641 (4th Cir. 1996). Rule 52(b) contains
three elements that must be satisfied before an appellate court may
notice an error not preserved by a timely objection. First, the asserted
_________________________________________________________________
*Specifically, § 5842 provides:

           (a) Identification of firearms other than destructive devices.
          -- Each manufacturer and importer and anyone making a fire-
          arm shall identify each firearm, other than a destructive device,
          manufactured, imported, or made by a serial number which may
          not be readily removed, obliterated, or altered, the name of the
          manufacturer, importer, or maker, and such other identification
          as the Secretary may by regulations prescribe.

           (b) Firearms without serial number.-- Any person who
          possesses a firearm, other than a destructive device, which does
          not bear the serial number and other information required by
          subsection (a) of this section shall identify the firearm with a
          serial number assigned by the Secretary and any other informa-
          tion the Secretary may by regulations prescribe.

26 U.S.C.A. § 5842 (West 1989).

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defect in the trial proceedings must, in fact, be error; second, the error
must be plain; and third, it must affect the substantial rights of the
defendant. See Olano, 507 U.S. at 732; Cedelle, 89 F.3d at 184;
David, 83 F.3d at 641. However,

          [e]ven then, "Rule 52(b) leaves the decision to correct the
          forfeited error within the sound discretion of the Court of
          Appeals, and the court should not exercise that discretion
          unless the error `seriously affect[s] the fairness, integrity or
          public reputation of judicial proceedings.'"

David, 83 F.3d at 641 (second alteration in original) (quoting Olano,
507 U.S. at 732 (citations omitted)).

Here, the district court did not commit plain error, and LeaSure's
reliance on Daniels is misplaced. In Daniels, the defendant was
charged with violating 26 U.S.C.A. § 5861(e) (West 1989). We held
that "[t]he essential elements of a violation of § 5861(e) are: 1) the
knowing transfer; 2) of a firearm; 3) `in violation of the provisions of
this chapter,' i.e., Title 26, Chapter 53." Daniels, 973 F.2d at 272 (cit-
ing United States v. Garrett, 583 F.2d 1381, 1387-89 (5th Cir. 1978)).
We further held that since it was necessary to violate another provi-
sion of Title 26 in order to violate § 5861(e), the third element was
essential, and the indictment should have contained this element and
identified the provisions it implicated. See id. Since the indictment
failed to do so, it was fatally defective as to the§ 5861(e) offense.

Unlike the situation in Daniels, it is not necessary to violate
another provision of Title 26 in order to violate§ 5861(i). The essen-
tial elements of § 5861(i) are: (1) possession; (2) of a firearm; (3)
lacking a serial number. See, e.g., United States v. Stout, 667 F.2d
1347, 1353 (11th Cir. 1982) (holding that "the government . . . unde-
niably bore its burden as to the essential elements of 26 U.S.C.
§ 5861(i)" where the evidence showed that"the silencers, made by
defendants and in defendants' possession at the time of their arrest,
were not stamped with any identifying markings"). The other require-
ments referred to in the statute, i.e., the"as required by this chapter"
items outlined in 26 U.S.C.A. § 5842, are administrative in nature and
describe how the serial number is to be applied (i.e., so that it "may
not be readily removed, obliterated, or altered") and what information

                     4
the serial number must contain (i.e., "the name of the manufacturer,
importer, or maker, and such other identification as the Secretary may
by regulations prescribe"). LeaSure was not charged with possessing
silencers with serial numbers that had been improperly applied, or
with possessing silencers with serial numbers containing false infor-
mation; instead, he was charged with, and convicted of, possessing
silencers without serial numbers. Since the indictment contained the
essential elements of possessing a silencer without a serial number,
it was not defective.

LeaSure also claims that the evidence was insufficient to support
his conviction. He argues that no evidence was presented concerning
serial number identification requirements outlined in 26 U.S.C.A.
§ 5842, and in 27 C.F.R. § 179.102 (1996). Both the statute and the
regulation, however, are administrative in nature. Both inform a man-
ufacturer, importer, or maker of firearms how and where to place fire-
arm serial numbers and what information such numbers must contain.
Because LeaSure was not charged with possessing silencers with
improper serial numbers, these provisions are not relevant. And, after
reviewing the record and the parties' briefs, we conclude that there
was substantial evidence supporting LeaSure's conviction for pos-
sessing silencers not identified by a serial number. See Glasser v.
United States, 315 U.S. 60, 80 (1942).

The presentence report stated that LeaSure's guideline range was
forty-one to fifty-one months imprisonment and that no basis for
departure was present. LeaSure did not object to this latter recommen-
dation. Nevertheless, the district court departed downward nine
levels, placing LeaSure's guidelines range at twelve to eighteen
months imprisonment. The district court's explanation at sentencing
for departing downward consisted entirely of the following:

          Normally, going strictly by the guidelines in the case we
          would come up with the possession of silencers and it being
          a violation of the statute would come into the guidelines
          with a [base offense level of] 18 points under[U.S. Sentenc-
          ing Guidelines Manual §] 2K2.1(a)(5)[ (1995)]. . . .

          And if I took into account the whole 19 of the silencers,
          there would be added . . . 4 points and that would come up

                    5
          with a total of 22 for which the guideline sentencing table
          would reach 41 to 51 months. But I'm satisfied in the case
          not that there hasn't been a violation, there has been so far
          as I'm concerned clearly shown, but that the impact of the
          bundle of silencers which were introduced as evidence in
          this court range from little small implements to something
          of considerable size and the finding of those in a cabinet, as
          Mr. Leasure suggests, in a locked cabinet, and, of course, at
          that point the violation had already occurred.

          But it seems to me that this matter falls under[§ 5K2.0]
          of the guidelines and I quote it. It says that the judge may
          depart from the guidelines and impose a sentence outside of
          the guidelines, "if there exists an aggravating or mitigating
          circumstance of a kind or to a degree not adequately taken
          into consideration by the sentencing commission in formu-
          lating the guidelines, that should result in a sentence differ-
          ent from that described." I think that's the case here.

          I'd add one thing further in Mr. Leasure's favor[:] . . . the
          sales that had been made by him had been made to other
          Governments under prohibitions granted by the United
          States or to the agencies of the United States so that gener-
          ally speaking there was a great deal of scrutiny being
          applied to silencers and their manufacture as indeed there
          should be because it's certainly an implement that is used in
          covertness of the most advanced sort. I, therefore, will
          depart down . . . by 9 points.

(J.A. at 125-26.) The district court sentenced LeaSure at the bottom
of the adjusted guidelines range, to twelve months imprisonment.

Following the imposition of LeaSure's sentence by the district
court, the Supreme Court issued its decision in Koon v. United States,
116 S. Ct. 2035 (1996), illuminating the analysis a reviewing court
must employ in assessing whether a sentencing court erred in depart-
ing from the applicable guideline range. In Koon ,

          [t]he Court explained that when assessing whether a poten-
          tial basis for departure was adequately considered by the

                    6
          Commission in formulating the guidelines, the correct
          inquiry necessarily focuses on whether the factor is
          addressed by the guidelines, policy statements, or official
          commentary and whether it is encompassed within the heart-
          land of situations to which the guidelines were intended to
          apply.

United States v. Brock, No. 96-4405, slip. op. at 3-4 (4th Cir. Feb. 28,
1997) (citing Koon, 116 S. Ct. at 2044-45); see also United States v.
Rybicki, 96 F.3d 754, 757 (4th Cir. 1996). The Supreme Court also
declared in Koon that we are to review a district court's decision to
depart from the Sentencing Guidelines for abuse of discretion. See
Koon, 116 S. Ct. at 2046.

On the record before us, we are unable to ascertain whether the dis-
trict court abused its discretion in departing downward from the Sen-
tencing Guidelines. In Koon, the Supreme Court instructed that

          [b]efore a departure is permitted, certain aspects of the case
          must be found unusual enough for it to fall outside the heart-
          land of cases in the Guideline. To resolve this question, [i.e.,
          whether the case falls outside the heartland,] the district
          court must make a refined assessment of the many facts
          bearing on the outcome.

Koon, 116 S. Ct. at 2046 (emphasis added). The district court deter-
mined to depart from the guidelines at LeaSure's sentencing hearing
on May 21, 1996, several days before the Supreme Court decided
Koon on June 13, 1996. As a result, the district court was unaware of
the dictates of Koon, and failed to make the"refined assessment of
the many facts" required by that decision. Indeed, we are unsure of
the facts, if any, the district court relied upon in determining that this
case warranted a departure. Accordingly, we affirm LeaSure's convic-
tion, vacate his sentence, and remand to the district court for resen-
tencing in light of Koon.

No. 96-4481 - AFFIRMED
No. 96-4516 - VACATED AND REMANDED FOR
RESENTENCING

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