                                                              FILED
                                                   United States Court of Appeals
                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                       September 18, 2007
                                        TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                          Clerk of Court

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.                                                 No. 06-8065
                                                       (D. Ct. No. 05-CR-159-D)
 CHARLES GLEN STASER,                                          (D. Wyo. )

                Defendant - Appellant.



                               ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, SEYMOUR, and HOLMES, Circuit Judges.


       After receiving briefing in this case, this three-judge panel granted the Appellant’s

unopposed motion to waive oral argument. The case is therefore submitted for

disposition on the briefs. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2), (G).

       Defendant-Appellant Charles Staser pleaded guilty to being an unlawful user of a

controlled substance in possession of firearms. Mr. Staser now appeals his sentence of

fourteen months’ incarceration. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and 18 U.S.C. § 3742(a)(1) and AFFIRM.




       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                   I. BACKGROUND

       On July 13, 2005, Mr. Staser was indicted for being an unlawful user of a

controlled substance in possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(3) and

924(a)(2). Mr. Staser entered into a plea agreement with the Government on March 28,

2006, pleading guilty in exchange for a stipulation that the firearms charged in the

indictment were possessed only for lawful sporting purposes, in which case he would

qualify for a reduced offense level under § 2K2.1(b)(2) of the U.S. Sentencing Guidelines

(“U.S.S.G.” or “Guidelines”). In a hearing conducted the same day, as well as in

subsequent proceedings, the District Court made clear its intention to hold an evidentiary

hearing to determine if the firearms were used solely for hunting purposes, reminding the

parties that the plea agreement was not binding on the court for sentencing purposes.

       During the first phase of sentencing, Mr. Staser entered his guilty plea, and the

District Court held an evidentiary hearing to determine whether to apply the sporting-

purpose exception. After hearing testimony from both parties, the court took the matter

under advisement. In July 2006, the court concluded that the sporting-purpose exception

under § 2K2.1(b)(2) did not apply and sentenced Mr. Staser to fourteen months’

imprisonment. The court noted that the sentence fell within the advisory Guidelines

range of twelve to eighteen months’ imprisonment and was reasonable based on the

statutory sentencing factors delineated in 18 U.S.C. § 3553(a).1

       1
        The Guidelines range was based on a total offense level of 12 and a criminal
history category of II. The Presentence Report calculated a total offense level of 13, but
                                                                              (continued...)

                                            -2-
       On appeal, Mr. Staser argues, first, that the District Court erred by refusing to

apply U.S.S.G. § 2K2.1(b)(2) and, second, that the sentence imposed is unreasonable in

light of the § 3553(a) factors.

                                     II. DISCUSSION

A.     Application of U.S.S.G. § 2K2.1(b)(2)

       A district court’s interpretation of the Guidelines is reviewed de novo and its

factual findings are reviewed for clear error, “giving due deference to the district court’s

application of the guidelines to the facts.” United States v. Brown, 314 F.3d 1216, 1222

(10th Cir. 2003). We review the District Court’s denial of the sporting-purpose exception

for clear error. See United States v. Bayles, 310 F.3d 1302, 1308 (10th Cir. 2002) (“We

review the district court’s factual determination that the firearm was not intended ‘solely

for lawful sporting purposes or collection’ for clear error.”).

       Mr. Staser contends the District Court erred in failing to apply § 2K2.1(b)(2) to

reduce his sentence. The “sporting-purpose exception” allows for a reduction in the base

offense level if the defendant can demonstrate: 1) he “possessed all ammunition and

firearms solely for lawful sporting purposes or collection,” and (2) he “did not unlawfully

discharge or otherwise unlawfully use such firearms or ammunition.” U.S.S.G. §

2K2.1(b)(2); see also United States v. Sanders, 449 F.3d 1087, 1090 (10th Cir. 2006)

(stating that defendant must show both possession for sporting purposes and no unlawful

       1
         (...continued)
after a downward departure for assisting the authorities under U.S.S.G. § 5K1.1, the
District Court reduced the total offense level to 12.

                                             -3-
use). The burden is on the defendant to establish both elements by a preponderance of the

evidence. See United States v. Dudley, 62 F.3d 1275, 1276 (10th Cir. 1995). The

Government concedes that Mr. Staser did not unlawfully discharge or use the firearms.

The only issue, therefore, is whether Mr. Staser established that he possessed the firearms

“solely” for sporting purposes.

       In determining whether firearms are possessed solely for sporting purposes, courts

consider the “surrounding circumstances.” Sanders, 449 F.3d at 1090 (quotation

omitted). The application note to the guideline provision specifies that the “[r]elevant

surrounding circumstances 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.” U.S.S.G. § 2K2.1 cmt.

n.7 (2005).

       Here, the evidence of the surrounding circumstances indicated that Mr. Staser did

not possess the firearms solely for sporting purposes. The court heard testimony that an

informant told police Mr. Staser possessed marijuana and conducted drug transactions;

the informant had described both the room in Mr. Staser’s residence where he conducted

these transactions, as well as the specific location of controlled substances and weapons

present during the transactions. This information was corroborated in a subsequent

search of Mr. Staser’s residence. According to law enforcement, the informant also

indicated that firearms were in close proximity to Mr. Staser during drug transactions and

                                            -4-
she felt intimidated by them.2 In addition, the court heard testimony that police found

seven firearms, two of which were loaded, during the search of Mr. Staser’s home. See

Dudley, 62 F.3d at 1277 (stating that if guns are loaded it “cuts against the contention that

they [are] solely for sporting or collection purposes”). Mr. Staser also has a criminal

history involving firearms offenses.

       We note, as did the District Court, that the evidence suggests Mr. Staser purchased

and used the firearms primarily for sporting and recreation purposes. Indeed, the record

reflects the fact that Mr. Staser is an avid and long-time hunter. This fact does not,

however, demonstrate that his sole reason for possessing the guns was for sporting

purposes. See Sanders, 449 F.3d at 1090 (holding that, although rifles were obtained and

used primarily for hunting, the sentencing court could find that defendant acquired

another or “new” purpose for possession). Based on the relevant surrounding

circumstances—including the number of firearms, the fact that some were loaded, their

close proximity to Mr. Staser during drug transactions, and Mr. Staser’s criminal

history—the District Court did not err in finding that Mr. Staser did not carry his burden

of proving that he possessed the firearms solely for sporting purposes.



       2
        Mr. Staser argues that the information police obtained from the informant was
unreliable. As the District Court pointed out, however, the informant’s statements were
“largely” corroborated by the evidence obtained, and in any event, it is within the
province of the factfinder to determine the reliability of evidence. See United States v.
Castorena-Jaime, 285 F.3d 916, 925–26 (10th Cir. 2002) (“The credibility of witnesses,
the weight to be given evidence, and the reasonable inferences drawn from the evidence
fall within the province of the district court.”).


                                            -5-
B.     Reasonableness of Sentence

       We review a district court’s sentencing decision for abuse of discretion, asking

whether the sentence is “reasonable” based on the factors set out in 18 U.S.C. § 3553(a).

United States v. Garcia-Lara, — F.3d —, 2007 WL 2380991, at *1 (10th Cir. 2007). A

district court’s decision may be challenged on either procedural or substantive grounds.

United States v. Mateo, 471 F.3d 1162, 1166 (10th Cir. 2006). A procedurally reasonable

sentence is one “‘reasoned,’ or calculated utilizing a legitimate method,” and substantive

reasonableness concerns “the actual length of the sentence imposed” in light of the

§ 3553(a) factors. Id. (quotation omitted).

       Other than the District Court’s refusal to apply the sporting-purpose exception to

its Guidelines calculation, Mr. Staser does not challenge any procedural aspect of the

decision. Having held that the District Court did not err in denying application of

§ 2K2.1(b)(2), we turn now to whether the sentence is substantively reasonable. Because

Mr. Staser’s sentence is properly calculated and within the range recommended by the

Guidelines, it is entitled to a presumption of reasonableness on appeal. United States v.

Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006); see also Rita v. United States, 127 S. Ct.

2456, 2462 (2007) (holding that a court of appeals may apply a presumption of

reasonableness to sentences properly calculated under the Guidelines).

       Mr. Staser argues that his sentence is unreasonable because it does not reflect his

nonviolent history and the fact that he is a hard worker. See 18 U.S.C. § 3553(a)(1)

(requiring sentencing court to consider “the history and characteristics of the defendant”).

                                              -6-
In addition, he argues that his sentence is too severe and therefore unjust, see id.

§ 3553(a)(2)(A), because his conviction will prevent him from lawfully possessing

firearms and hunting game birds. According to Mr. Staser, his inability to hunt game

birds is sufficient punishment for his crime. Mr. Staser does not, however, explain why

these circumstances should result in a more lenient sentence than the one the Guidelines

impose. See Rita, 127 S. Ct. at 2470 (concluding that the defendant’s circumstances did

not require a sentence lower than the Guidelines sentence in light of § 3553(a)). The

District Court considered the § 3553(a) factors, including Mr. Staser’s characteristics and

the need for the sentence to provide just punishment,3 and concluded that a within-

Guidelines sentence is appropriate. Mr. Staser’s fourteen-month sentence is therefore

reasonable.

                                   III. CONCLUSION

       For the foregoing reasons, we AFFIRM Mr. Staser’s sentence.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Chief Circuit Judge




       3
        In particular, the court noted Mr. Staser’s long history of alcoholism and drug
abuse, as well as his apparent lack of remorse.

                                             -7-
