                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   January 15, 2010
                                TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
 v.                                                      No. 09-1245
                                                        (D. Colorado)
 SCOTT KIMBALL,                               (D.C. No. 1:07-CR-00249-MSK-1)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the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.       INTRODUCTION

         Defendant-appellant Scott Kimball pleaded guilty to being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court

sentenced Kimball to seventy months’ imprisonment and three years’ supervised

release. Kimball appeals, arguing the district court erred when it found he did not

qualify for a reduction in his total offense level under the so-called “sporting

exception” contained in § 2K2.1(b)(2) of the United States Sentencing Guidelines

(“USSG”). Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291, we affirm Kimball’s sentence.

II.      BACKGROUND

         Kimball is a convicted felon who is prohibited from possessing a firearm.

See 18 U.S.C. § 922(g)(1). On December 28, 2005, Kimball and his girlfriend

Melissa Anderson went to a Wal-Mart store in Colorado. At Kimball’s direction,

Anderson purchased a Winchester rifle with a scope. Kimball paid cash for the

firearm. Kimball told Anderson he would teach her to hunt with the rifle, but

after the purchase Kimball put the rifle in his vehicle and Anderson never saw it

again.

         In 2007, the rifle purchased by Anderson and a .40 caliber Smith & Wesson

pistol were given to the FBI by William Bender. Bender received the firearms

from Kimball’s brother, Brett Kimball. At the sentencing hearing, Denise Pierce

testified that while Kimball was being pursued by police he called her and told

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her to give the handgun to a man named Brett Gamblin. Pierce gave the handgun

to Gamblin’s girlfriend who gave it to Gamblin. Gamblin subsequently gave the

handgun to Brett Kimball.

      In a written plea agreement, Kimball admitted unlawfully possessing the

rifle. Prior to sentencing, a Presentence Investigation Report (“PSR”) was

prepared. Kimball filed written objections to the PSR, asserting, inter alia, that a

base offense level of six applied because he possessed the rifle solely for lawful

sporting purposes. See USSG § 2K2.1(b)(2) (“If 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, decrease the offense level determined above to level 6.”). The

district court held a sentencing hearing at which numerous witnesses testified,

including Kimball.

      Kimball testified he was in the cattle business and obtained the rifle to hunt

coyotes that were preying on his cattle. Kimball admitted he took the rifle to

California for “safety purposes” the month after Anderson purchased it. Kimball

denied owning or possessing the .40 caliber handgun. Kimball’s brother, Brett

Kimball, identified the rifle and the handgun from a photograph. Brett testified

he received the handgun from Brett Gamblin who received it from Denise Pierce.

The rifle was found in a storage area of a warehouse associated with Brett’s

business. Brett testified that Kimball, Brett Gamblin, and Michael Bender all had

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access to the warehouse. The rifle and the handgun were given to Bender to put

in his gun safe. Brett also testified that some time after late 2002, he was visiting

Kimball in Colorado and observed a pistol in Kimball’s Jeep. When asked,

Kimball told Brett the FBI gave him the gun “for protection.” Brett admitted he

could not be certain whether the gun he saw in Kimball’s Jeep was an air gun or a

real handgun or whether it was the handgun recovered by the FBI.

      Denise Pierce also testified at the sentencing hearing. She met Kimball in

2005 and he lived in her home with her in early 2006. Pierce recalled seeing a

rifle case in the back of Kimball’s truck and a handgun case in her bedroom

closet. Pierce testified she also saw the handgun in the center console of

Kimball’s truck. In 2006, Kimball and Pierce both used the handgun for target

shooting during a trip to Bryce Canyon, Utah. Pierce testified she was certain the

handgun was not an air pistol because she loaded the clip with bullets and picked

up the empty casings. Pierce identified the handgun given to the FBI by Michael

Bender as the handgun she and Kimball used for target shooting.

      The Government also presented the testimony of William Walker, who did

some work on Kimball’s property in 2004. Walker testified he saw Kimball

wearing a holster that contained a handgun. According to Walker, he also saw a

.38 revolver laying on the front seat of Kimball’s vehicle. Walker testified

Kimball told him he was an FBI agent.




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      Kimball’s counsel cross-examined each of the Government’s witnesses,

attempting to expose any biases against Kimball. In addition, Kimball testified

again at the end of the sentencing hearing. He denied wearing a holster or

possessing a .38 revolver and characterized Walker’s testimony to the contrary as

an “absolute lie.” Kimball disputed Pierce’s testimony that he kept a handgun in

the bedroom closet, calling it “not true,” and further stated her testimony that he

possessed a pistol was “absolutely not true.” Kimball testified that the pistol

Brett Kimball saw in his Jeep was an air pistol.

      The district court concluded Kimball failed to establish his eligibility for

the § 2K2.1(b)(2) sporting exception because his testimony was “incredible.” The

court stated Kimball testified falsely “by claiming the applicability of the sporting

purpose adjustment and denying relevant conduct concerning possession and use

of other firearms, notably the handgun.” Based on Kimball’s false testimony, the

district court applied a two-level enhancement for obstruction of justice, USSG

§ 3C1.1, and refused to reduce Kimball’s offense level under § 3E1.1 for

acceptance of responsibility. Based on Kimball’s Criminal History Category VI

and an adjusted base offense level of sixteen, the district court calculated the

advisory guidelines range as forty-six to fifty-seven months. The court, however,

varied upward from the advisory range and sentenced Kimball to seventy months’

imprisonment followed by a three-year term of supervised release. Kimball filed




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a timely notice of appeal, challenging only the denial of the § 2K2.1(b)(2)

sporting exception.

III.   DISCUSSION

       USSG § 2K2.1(b)(2) states in relevant part:

       If 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,
       decrease the offense level . . . to level 6.

This court reviews for clear error the district court’s finding that Kimball did not

intend to use the rifle solely for sporting purposes. United States v. Bayles, 310

F.3d 1302, 1308 (10th Cir. 2002). The defendant bears the burden of

demonstrating that § 2K2.1(b)(2) applies. United States v. Collins, 313 F.3d

1251, 1254 (10th Cir. 2002). The application notes to § 2K2.1(b)(2) state that

whether firearms are possessed for “lawful sporting purposes or collection” is

“determined by the surrounding circumstances” which 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(b)(2), cmt. n.6.

The district court’s finding that Kimball did not intend to use the rifle solely for

sporting purposes was based on the foregoing factors and its determination that




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Kimball was not a credible witness. Having reviewed the record, we conclude the

district court’s finding is not clearly erroneous.

      As to the district court’s credibility determinations, this court does not

“review the credibility of a witness’ testimony on appeal.” United States v.

Martin, 163 F.3d 1212, 1217 (10th Cir. 1998). Thus, we will not question the

district court’s conclusion that Kimball testified falsely when he (1) stated he

purchased the rifle solely for hunting and (2) told the court Pierce and Walker

were lying when they testified he possessed a handgun. The court supported its

credibility finding by noting Kimball is intelligent and articulate but “also

deceitful and deceptive.” As the district court stated, nine of Kimball’s ten

previous felony convictions involved false statements or deceit. The court also

referenced the false statements Kimball made to Brett Kimball and William

Walker when the two men asked Kimball about a handgun in his possession.

Kimball falsely told them he was working for the FBI. Finally, the district court

noted that the offense of conviction itself was “premised upon deception”—the

rifle was purchased by Melissa Anderson but Kimball immediately took

possession of it and Anderson never saw it again.

      The court’s ruling that Kimball failed to meet his burden of proving he

intended to use the rifle solely for hunting purposes is also amply supported by

the record. Although Kimball testified he obtained the rifle to protect his cattle

from coyotes, the Government presented evidence the cattle were moved to a

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different location before Kimball acquired the rifle. There was also testimony

that Kimball left Colorado, taking the rifle with him, less than a month after he

took possession of it.

IV.    CONCLUSION

       The district court did not err when it declined to reduce Kimball’s offense

level pursuant to § 2K2.1(b)(2). Accordingly, we affirm the sentence imposed by

the district court.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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