Panel rehearing and rehearing
en banc denied by order filed
2/4/02
                                            Filed:   February 4, 2002

                   UNITED STATES COURT OF APPEALS

                       FOR THE FOURTH CIRCUIT


                            No. 01-4501
                             (CR-01-24)



United States of America,

                                               Plaintiff - Appellant,

          versus


William Clifford Solomon, III,

                                                Defendant - Appellee.



                             O R D E R



     The court further amends its opinion filed December 17, 2001,

and amended January 31, 2002, as follows:

     On page 5, second full paragraph, line 3 -- the last sentence

of text is corrected to end: “remand the case to the district court

for resentencing in accordance with this opinion.”

                                         For the Court - By Direction




                                          /s/ Patricia S. Connor
                                                   Clerk
                                             Filed:   January 31, 2002

                    UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT


                             No. 01-4501
                              (CR-01-24)



United States of America,

                                                Plaintiff - Appellant,

           versus


William Clifford Solomon, III,

                                                 Defendant - Appellee.



                              O R D E R



     The court amends its opinion filed December 17, 2001, as

follows:

     On page 2, line 1 -- Counsel’s name is corrected to read

“Vincent L. Gambale.”

                                          For the Court - By Direction




                                           /s/ Patricia S. Connor
                                                    Clerk
                                              PUBLISHED

                                  UNITED STATES COURT OF APPEALS

                                       FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,
     Plaintiff-Appellant,

     v.                                                 No. 01-4501

WILLIAM CLIFFORD SOLOMON, III,
     Defendant-Appellee.


                            Appeal from the United States District Court
                          for the Eastern District of Virginia, at Alexandria.
                                  Gerald Bruce Lee, District Judge.
                                              (CR-01-24)

                                       Argued: October 30, 2001

                                      Decided: December 17, 2001

                       Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and
                          Malcolm J. HOWARD, United States District Judge
                             for the Eastern District of North Carolina,
                                       sitting by designation.

____________________________________________________________

Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Chief Judge Wilkinson and Judge Howard joined.

____________________________________________________________

                                               COUNSEL

ARGUED: Alessandra DeBlasio, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Vir-
ginia, for Appellant. Douglas Adrien Steinberg, Alexandria, Virginia,
for Appellee. ON BRIEF: Paul J. McNulty, United States Attorney,
Vincent L. Gambale, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellant.

____________________________________________________________

                                                OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

   The Government challenges the district court's determination that
William Solomon was entitled to an eight-level reduction in his
offense level at sentencing for possessing a firearm "solely for lawful
sporting purposes or collection." Because the record is devoid of any
factual basis for the reduction, we vacate the sentence and remand the
case for resentencing.

                                                   I.

   On July 25, 2000, William Solomon sought to purchase an Intratec
9mm pistol at Woodbridge Gold & Jewelry, a pawn shop in Wood-
bridge, Virginia. Before Solomon could buy the weapon, he was
required by law to submit to a criminal background check to establish
that he could lawfully purchase the weapon. As part of this back-
ground check, Solomon had to complete Federal Bureau of Alcohol,
Tobacco and Firearms (ATF) Form 4473, which asks whether an
applicant has ever been convicted of a misdemeanor crime of domes-
tic violence. Solomon answered "no" to this question, although in
1997 he had been convicted of a domestic violence misdemeanor —
battering his live-in girlfriend.

   After Solomon completed the Form 4473, Woodbridge Gold &
Jewelry contacted the Virginia state police to obtain instant back-
ground verification, but the police provided no immediate response.
Woodbridge Gold & Jewelry therefore advised Solomon that the law
required a three-day wait — if the police had not responded with any
disqualifying information by that time, Solomon could buy the pistol.

   Four days later, on July 29, when Woodbridge Gold & Jewelry had
still received no reply at all to the background inquiry, it sold the pis-

                                                   2
tol to Solomon. Sometime before August 8, however, the Virginia
state police completed its background check on Solomon and learned
of his prior domestic violence conviction. Solomon attempted two
additional firearm purchases during August 20001 but was not permit-
ted to purchase the firearms because police immediately notified these
dealers that Solomon had failed the background check. On each Form
4473 that Solomon completed for these later attempts to purchase
firearms, Solomon again answered "no" to the question of whether he
had been convicted of a misdemeanor crime of domestic violence.

   An ATF agent investigated and later interviewed Solomon, and
Solomon admitted to providing false information on his July 25 ATF
form. Ultimately, Solomon pled guilty to knowingly and unlawfully
receiving and possessing the Intratec 9mm pistol, after having been
previously convicted of a misdemeanor crime of domestic violence.
See 18 U.S.C.A. § 922(g)(9) (1998).

   The presentence report (PSR) submitted to the district court identi-
fied level 14 as the applicable base offense level for receipt and pos-
session of a firearm by a "prohibited person," that is, a person
convicted of a "misdemeanor crime of domestic violence." See U.S.
Sentencing Guidelines Manual § 2K2.1(a)(6), § 2k2.1, cmt. n.6
(2000). The PSR also recommended an eight-level reduction to the
base offense level, pursuant to § 2K2.1(b)(2), on the ground that the
pistol had been possessed "solely for lawful sporting purposes or col-
lection." The initial PSR neither provided nor identified any evidence
to support the conclusion that Solomon possessed the pistol solely for
lawful sporting or collection purposes.

   Citing this absence of evidence, the Government objected to the
PSR's recommendation that Solomon receive the "lawful sporting
purposes and collection" reduction. Moreover, the Government prof-
fered testimony from an ATF agent stating that both the kind of pistol
in question (which the Government argued was a "Saturday Night
Special") and Solomon's pawning of the firearm shortly after pur-
____________________________________________________________
   1
     Solomon first attempted on August 8 to repurchase the same Intratec
9mm pistol from another pawn shop, where he had pawned it just days
after purchasing it. Then, on August 22, Solomon attempted to purchase
a High Point 9mm rifle from a third Woodbridge shop.

                                                  3
chase were inconsistent with possession solely for lawful sporting or
collection purposes.

   The probation officer responded to the Government's objection by
submitting an addendum to the PSR. The addendum stated that a
reduction under § 2K2.1(b)(2) seemed appropriate, notwithstanding
the Government's contentions that the pistol was not a "collector's
item" or "standard hunting weapon," because the ATF agent had
admitted to the probation officer that he had no knowledge as to why
Solomon purchased a weapon or that Solomon "used or intended to
use the weapon in connection with any criminal offense."

    At sentencing, the district court found that "[t]here is no evidence
that this weapon has been used for any purpose" but also noted that
"it is arguable that it's not a hunting weapon." Nonetheless, the dis-
trict court applied the "lawful sporting purposes or collection" reduc-
tion, consistent with the PSR, because it found "no indication [the
pistol] was used in connection with drugs, robbery or anything nefari-
ous" and no evidence "that it could not have been used for collection
purposes."

                                                  II.

   The Government argues that no evidence supported the application
of § 2K2.1(b)(2) to Solomon.2 We agree.

   Once the Government objected to the PSR, the district court was
required to make specific findings of its own or adopt the findings of
the probation officer in the PSR. See Fed. R. Crim. P. 32(c)(1) (2001).
The only findings with respect to the "lawful sporting purposes or col-
lection" reduction were that no evidence existed to show that the pis-
tol had been "used" for "anything nefarious" or "any purpose." The
plain text of § 2K2.1(b)(2), however, permits a reduction in offense
____________________________________________________________
  2
     The parties also dispute whether the Government, as the party object-
ing to the PSR's recommendation, bore the burden of proving that Solo-
mon was not entitled to the reduction. We do not reach this question, but
note that every circuit to consider it has assigned to the defendant the
burden of proving entitlement to a sentencing reduction.

                                                  4
level only if a firearm is possessed "solely for lawful sporting pur-
poses or collection" — and no other purpose. Id. (emphases added).

   Neither the district court nor the probation officer made any find-
ings as to whether Solomon used the firearm "solely for lawful sport-
ing purposes or collection."3 In fact, the district court specifically
disavowed such a finding, correctly noting instead that there was "no
evidence that this weapon has been used for any purpose." (Emphasis
added.) A finding as to the absence of proof of unlawful use cannot
translate to, or equal, a finding that the firearm was used "solely for
lawful sporting purposes or collection." Other lawful reasons exist to
possess a firearm that are independent of "sporting purposes or collec-
tion," and even a sportsman or collector is not entitled to a reduction
under § 2K2.1(b)(2) unless he possesses a firearm exclusively for
sporting or collection purposes.

   Because the record lacks any factual basis for the "lawful sporting
purposes or collection" reduction, we must vacate Solomon's sen-
tence and remand the case to the district court for resentencing in
accordance with this opinion.

                                                                                VACATED AND REMANDED
____________________________________________________________
  3
     Solomon argues that the probation officer's determination to apply the
eight-level reduction, in and of itself, supports or evidences a finding of
fact by the probation officer on which the district court was entitled to
rely. The contention is meritless. A probation officer's determination to
recommend application of a given guideline, standing alone, does not
constitute a finding of fact. See, e.g., United States v. McMeen, 49 F.3d
225, 226 (6th Cir. 1995) ("The mere conclusion of the probation report
is an insufficient basis for a finding that the evidence before the sentenc-
ing judge supports the proposition of fact asserted therein. Basic fairness
requires that the evidence be identified and its reliability demonstrated.").




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