                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                      July 18, 2007

                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 06-30616


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

                     RONALD M. LELEAUX, JR.,

                                                Defendant-Appellant.


          Appeal from the United States District Court
              for the Middle District of Louisiana
                         (3:05-CR-195-1)


Before HIGGINBOTHAM, DAVIS, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Ronald Leleaux, Jr., appeals the sentence imposed following

his guilty-plea conviction for knowingly possessing a firearm after

having been convicted previously.   He contends the district court:

improperly refused to reduce his offense level pursuant to advisory

Sentencing Guidelines § 2K2.1(b)(2) (decreasing offense level to

six if firearm possession was solely for lawful sporting purposes

or collection); and, in upwardly departing from his offense level,




     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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failed to properly apply 18 U.S.C. § 3553 (stating sentencing

factors).    AFFIRMED.

                                     I.

      In March 2005, Leleaux pawned a Mossberg 16 gauge shotgun.

The   resulting   criminal-history       check   revealed     he   had   several

domestic-violence convictions and was therefore prohibited from

possessing the firearm.

      Leleaux pleaded guilty to one count of knowingly possessing a

firearm, after having been convicted previously of a misdemeanor

domestic-violence crime, in violation of 18 U.S.C. § 922(g)(9).

The pre-sentence investigation report (PSR) recommended a base-

offense level of 14, pursuant to Guidelines § 2K2.1(a)(6), less a

two-level    acceptance-of-responsibility         reduction.         Based    on

Leleaux’s    numerous    prior   convictions,     the   PSR   recommended     18

criminal-history points, resulting in a criminal-history category

of VI.   Leleaux’s resulting recommended guidelines range was 30 to

37 months.     The PSR also stated Leleaux had approximately 15

convictions for which no criminal-history points were assigned and

numerous arrests.

      Before sentencing, the district court notified Leleaux it

intended to depart upward under Guidelines § 4A1.3(a) because

reliable information suggested he had an under-represented criminal

history and a likelihood of recidivism, due to his having five more




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than the 13 criminal-history points required for Category VI.

Leleaux objected to the court’s intention to depart upward.

     In addition, Leleaux objected to his base-offense level,

claiming it should be six, rather than 14, pursuant to Guidelines

§ 2K2.1(b)(2), because the shotgun belonged to his deceased father

and was a family heirloom used only for hunting.           He claimed:

approximately two weeks before he pawned the shotgun, he had moved

in with his father shortly before he died and found the shotgun

while cleaning a closet.      His stated reasons for pawning it are

discussed infra.

     The court denied both objections.        Using the next higher

offense   level   in   criminal-history   category   VI,   pursuant    to

Guidelines § 4A1.3(a)(4)(B), it sentenced Leleaux to 41-months

imprisonment.

                                  II.

     Post-Booker,      the   district   court’s   interpretation      and

application of the now-advisory Guidelines are reviewed de novo;

its factual determinations for clear error. E.g., United States v.

Charon, 442 F.3d 881, 887 (5th Cir.), cert. denied, 127 S. Ct. 260

(2006).   Sentences are reviewed for reasonableness.       E.g., United

States v. Scroggins, 485 F.3d 824, 835 (5th Cir. 2007).       If within

a properly calculated Guidelines range, a sentence is afforded a

rebuttable presumption of reasonableness, and we will infer the

district judge considered all of the Guidelines factors.        Id.


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                                    A.

      Guidelines    §   2K2.1(b)(2)      provides   for   an   offense-level

reduction to six if a 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 district court refused to apply the reduction,

evidently because it believed:        the section did not apply simply

because Leleaux’s father, and not Leleaux, used the firearm for

hunting and considered it an heirloom worthy of collection; and

Leleaux’s pawning the firearm belied his claimed interest in

furthering his family’s collection of it.

     In claiming the district court erred in declining to apply

this reduction, Leleaux maintains the shotgun was a family heirloom

belonging to his father and was owned for the purpose of hunting.

At sentencing, he claimed he pawned it, and gave the ticket to his

sister, because she was unable to pick up it up from their father’s

house, and he wanted to have it removed for personal safety reasons

while he   was   grieving.    The   Government      responds    that,   while

affidavits show Leleaux’s father owned the shotgun for sporting

purposes and it was an heirloom, Leleaux did not establish he

possessed the firearm solely for such reasons.

     There is no indication the district court did not accept the

evidence showing Leleaux’s actual possession consisted solely of

his pawning the shotgun, which was an heirloom owned by his father,


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who used it solely for sporting purposes.             Accordingly, whether

Leleaux   was   entitled   to   the   offense-level    reduction   involves

“application of the facts to the guidelines”, which “is a question

of law subject to de novo review”.         United States v. Shell, 972

F.2d 548, 550 (5th Cir. 1992).

       “A felon ‘claiming a reduction in the offense level [under §

2K2.1(b)(2)] bears the burden of establishing entitlement’ by a

preponderance of the evidence.”           Id. (alteration in original)

(quoting United States v. Keller, 947 F.2d 739, 741 (5th Cir.

1991)).    The commentary to § 2K2.1(b)(2) states that whether the

firearm was used for “lawful sporting purposes or collection” is to

be

            determined by the surrounding circumstances
            ... includ[ing] 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(b)(2), cmt. n.7 (2005).

       Our court has held the availability of the reduction does “not

turn on the axiomatic truism that a felon can never lawfully

possess a firearm” because “[t]he entire reduction provision would

clearly be subsumed in such a proposition”.            Shell, 972 F.2d at

552.    Instead, and in accordance with the Guideline’s commentary,

“the availability of the reduction turns on the purpose or use for


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which the firearm is acquired or possessed and the lawfulness of

such use if it were to be exercised by a citizen not under any

legal disability — lawful hunting, lawful target practice, or

lawful gun collecting”. Id. (emphasis in original). As discussed,

even if Leleaux possessed the firearm for lawful sporting or

collection purposes, he is not protected from criminal liability

for illegal possession.     On the other hand, such circumstances can

be a mitigating factor in determining his sentence under the

advisory Guidelines.

      As an initial matter, Leleaux does not contend he used the

firearm for his collecting or sporting purposes; however, the

Guideline does not, on its face, require him to do so.           We assume

arguendo he can rely on the shotgun’s being used for sporting and

collection generally.      Restated, we assume arguendo Guidelines §

2K2.1(b)(2) requires Leleaux to show, at least, that his act of

possession was solely for the sporting or collection purposes of

some other person.     See United States v. Mojica, 214 F.3d 1169,

1172-73 (10th Cir. 2000).

      Other circuits’ application of § 2K2.1(b)(2) when, as here,

the defendant did not own the firearm and the only evidence of

actual possession occurred as he was disposing of it, has depended

on   the   circumstances   of   the   possession,   as   the   Guideline’s

commentary directs.    United States v. Caldwell, 431 F.3d 795 (11th

Cir. 2005), cert. denied, 126 S. Ct. 1665 (2006), upheld the


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district court’s rejection of a § 2K2.1(b)(2) reduction where the

defendant pawned his brother’s sporting rifle upon finding it in

their   residence.   The    court   noted   the   district   court   found

unconvincing the defendant’s asserted belief that he was complying

with the law by pawning the firearm, given that he never gave the

pawn ticket or money to his brother or made other attempts to have

the rifle removed from the house.           Id. at 800.      In contrast,

Mojica, 214 F.3d 1169, held the § 2K2.1(b)(2) reduction could apply

when the only evidence of the defendant’s possession was his

returning to its owner a shotgun borrowed by a housemate for lawful

sporting purposes.

     To determine whether Leleaux demonstrated, by a preponderance

of the evidence, that the reduction should have been given, we

consider the surrounding circumstances.           The record indicates

Leleaux possessed only one firearm, of the type ordinarily used for

small game, and no ammunition.      There is no allegation that he ever

fired or brandished the weapon.      On the other hand, and similar to

the facts in Caldwell, he does not justify his taking the firearm

to a pawn shop rather than to his sister, which, as the district

court noted, is inconsistent with his claimed interest in having it

remain in the family.      Moreover, his pawning the firearm was, as

Leleaux admits, intended “to get rid of it”, which is not for use

in sporting or collection.     Furthermore, the district court noted

that, although Leleaux’s lengthy criminal record does not include


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gun   violence,    it   does    evidence    his   violent   nature,     problems

managing his anger, numerous domestic violence incidents, and drug

abuse and alcoholism.      In sum, Leleaux does not meet his burden of

showing entitlement to the § 2K2.1(b)(2) offense-level reduction.

                                      B.

      Regarding Leleaux’s challenge to the upward departure, such

departures are reviewed for reasonableness, “which requires us to

review ‘the district court’s decision to depart upwardly and the

extent of that departure for abuse of discretion’”.             United States

v. Gonzalez, 445 F.3d 815, 817 (5th Cir. 2006) (quoting United

States v. Saldana, 427 F.3d 298, 308 (5th Cir. 2005)).                         The

departure is not an abuse of discretion if the district court’s

reasons for it:     advance the objectives set forth in § 3553(a)(2);

and are justified by the facts of the case.                  United States v.

Zuniga-Peralta, 442 F.3d 345, 347 (5th Cir.), cert. denied, 126 S.

Ct. 2954 (2006).

      Guidelines    §   4A1.3    provides    that   the     departure    may   be

warranted “[i]f ... the defendant’s criminal history category

substantially under-represents the seriousness of the defendant’s

criminal history or the likelihood that the defendant will commit

other crimes”.      When, as here, the departure is from criminal

history category VI, the court is instructed to move incrementally

to the next higher offense level until it finds an appropriate

Guidelines range.        U.S.S.G. § 4A1.3(a)(4)(B).            In determining


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whether to depart upwardly from Category VI, the Guideline’s

commentary recommends the court consider the nature of the prior

offenses.     Id. cmt. n.2(B).

       At Leleaux’s lengthy sentencing hearing, the district court

discussed with Leleaux his criminal record.            In accordance with §

3553(a)(2)’s factors and § 4A1.3, the court emphasized:                   the

criminal-history category’s not reflecting Leleaux’s true criminal

propensity; his violent history; the need to provide him with anger

management, drug and alcohol treatment, and mental health care; the

number of convictions for which he received no criminal-history

points; his likelihood of recidivism; and the need to protect the

public by deterring further crimes.         See Zuniga-Peralta, 442 F.3d

at   347-48   (upholding   60-month   departure   under      §   4A1.3   where

district court considered defendant’s lengthy criminal history and

gave   reasons   that   advanced   the    objectives    of   §   3553(a)(2)).

Accordingly, the district court gave adequate justification for the

upward departure.

                                   III.

       For the foregoing reasons, the judgment is

                                                                    AFFIRMED.




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