                                                                          F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                          July 26, 2006
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                       No. 05-8117
          v.                                             (D . of W yo.)
 THO M AS FLOY D O SBORN E,                        (D.C. No.05-CR-122-D)

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before TA CH A, Chief Judge, HA RTZ, and TYM KOVICH, Circuit Judges. **


      Defendant-Appellant Thomas O sborne, appearing pro se 1 , pleaded guilty to

possession of a firearm by a person convicted of domestic violence. At

sentencing, the district court declined to apply a provision of the United States

Sentencing Guidelines (U SSG) that reduces the offense level when a firearm is



      *
         This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      1
       W e construe Osborne’s appellate filings liberally. See Cummings v.
Evans, 161 F.3d 610, 613 (10th Cir. 1998).
possessed “solely for a sporting purpose.” W e hold that the district court

correctly applied the USSG on the ground that Osborne had used one of his rifles

in a feigned suicide attempt during an incident of domestic unrest. Accordingly,

we AFFIRM the district court.

                                 I. Background

        Osborne’s unlawful possession of firearms was discovered as a result of

events at his home on the W ind River Indian Reservation on M ay 8, 2005. That

morning, after returning from a dance and party that he had attended with his ex-

wife, Laura W allowingbull, her sister, and her sister’s boyfriend, Osborne asked

W allowingbull if she loved him. Not receiving the desired reply, he grabbed a

hunting rifle, and after getting his car keys from W allowingbull, left their shared

home.

        Upon his return, Osborne found Wallowingbull’s sister with her boyfriend

on the front porch of the home. Asked what he intended to do with the rifle in his

possession, Osborne replied “I’m going to kill myself.” W allowingbull’s sister

became concerned and asked Osborne to relinquish the gun, but he refused.

Osborne then walked away from the porch only to return momentarily with the

rifle held across his chest and pointed skywards. W hen Osborne was within 25

feet of W allowingbull’s sister and her boyfriend, he fired the gun once into the

air. Osborne then placed the rifle in a horse trailer and drove away.




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      Osborne’s shot awakened W allowingbull who believed Osborne may have

hurt or killed himself. As a result, W allowingbull called tribal police. Osborne

returned home before the police arrived and became angry upon learning from

W allowingbull that she had contacted authorities. He retrieved his rifle from the

horse trailer and again drove away. He was arrested a short time later by tribal

police and the Fremont County Sheriff for DUI and other tribal infractions. 2

      Pursuant to a plea agreement, Osborne pleaded guilty on August 15, 2005,

to one count of unlawful possession of a firearm by a person previously convicted

of a crime of domestic violence in violation of 18 U.S.C. § 933(g)(9). The plea

agreement included a stipulation between Osborne and the government that

Osborne’s possession of four rifles was “solely for lawful sporting purposes” and

that he therefore qualified for a reduction of 7 levels in his Guideline calculation

pursuant to USSG § 2K2.1(b)(2). 3




      2
          Osborne was not in possession of his rifle when he was arrested.
      3
          USSG § 2K2.1(b)(2) provides,

              If the defendant, other than a defendant subject to subsection (a)(1),
              (a)(2), (a)(3), (a)(4), or (a)(5), 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.

(emphasis added).


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      In its presentence report (PSR ), the probation office argued that Osborne

should not get the benefit of USSG § 2K2.1(b)(2) because of his use of the

weapon in a non-sporting manner on the morning of M ay 8, 2005. Both Osborne

and the government objected, contending that Osborne’s discharge of the weapon

was not assaultive or otherwise unlawful and that the denial of the reduction

would result in a disproportionately harsh sentence. The district court heard the

objections and adopted the rationale of the PSR. The court calculated Osborne’s

offense level as 13, which, when combined with his criminal history category of

II, resulted in a Guideline range of 15–21 months incarceration. Osborne was

sentenced to 15 months in prison and three years of supervised release. He filed a

timely appeal.

                                II. Discussion

      Since United States v. Booker, 543 U.S. 220 (2005), we review sentences

for reasonableness. This review “encompasses both the reasonableness of the

length of the sentence, as well as the method by which the sentence was

calculated.” United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).

Osborne challenges only the method by which the sentence was calculated,

arguing that the district court erred in calculating the applicable Guideline range

by w rongfully denying him the “sporting purposes” reduction pursuant to USSG

§ 2K2.1(b)(2).




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      In considering whether the district court erred in its calculation of the

applicable Guideline range, we review the district court’s factual findings for

clear error. Kristl, 437 F.3d at 1054. W e review its legal conclusions regarding

the application of the guidelines de novo. Id.

      As we recently reaffirmed, it is “‘the defendant’s burden to show the

applicability of U.S.S.G. § 2K2.1(b)(2).’” United States v. Sanders, 449 F.3d

1087, 1090 (10th Cir. 2006) (quoting United States v. Collins, 313 F.3d 1251,

1254 (10th Cir. 2002)). The provision requires a defendant to show both that

(1) he “possessed all ammunition and firearms solely for lawful sporting purposes

or collection” and (2) that he “did not unlawfully discharge or otherwise

unlawfully use such firearms or ammunition.” USSG § 2K2.1(b)(2). Although

Osborne was charged with unlawful discharge of a firearm, this tribal charge

remained unresolved at the time of sentencing and the government does not argue

on appeal that Osborne used his gun unlawfully. Therefore, our analysis turns on

whether Osborne possessed his weapons “solely for lawful sporting purposes or

collection.”

      The purpose for which a firearm is possessed is “determined by the

surrounding circumstances.” USSG § 2K2.1 cmt. 7. Among the relevant

surrounding circumstances are “the location and circumstances of possession and

actual use, and the nature of the defendant’s criminal history.” Id. Here, the



                                         -5-
district court found Osborne actually used one of his guns in order to punctuate

his emotional anguish in the context of a feud with his ex-wife toward whom he

had been convicted of domestic violence. He did so while intoxicated, within 25

feet of his ex-wife’s relatives and also within feet of the trailer in which his ex-

wife slept. Not inconsequentially, the nature of Osborne’s criminal history of

domestic violence is the very reason why his possession of firearms constituted a

federal offense.

      As we noted in Sanders, “although. . . [the defendant] had obtained the

rifles for hunting and that had been their sole prior use, the court could properly

find that in addition to this sporting purpose [the defendant] had acquired [a] new

purpose for possessing the firearms,” specifically, of employing them as

emotional props in quarrels with his ex-w ife. Sanders, 449 F.3d at 1090. Thus,

we cannot say that the district court committed clear error in finding that Osborne

did not meet his burden of showing that his exclusive purpose for possessing his

weapons was “sporting.”

                                 III. Conclusion

      For the foregoing reasons we find Osborne’s sentence to be reasonable and




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therefore AFFIRM the district court.

                                             Entered for the Court




                                             Timothy M . Tymkovich
                                             Circuit Judge




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