                                 ___________

                                 No. 95-3543
                                 ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     *   Appeal from the United States
     v.                              *   District Court for the
                                     *   Northern District of Iowa.
Rick Waggoner,                       *
                                     *
           Defendant-Appellant.      *

                                 ___________

                   Submitted:    September 10, 1996

                        Filed:   January 10, 1997
                                 ___________

Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.
                               ___________


LOKEN, Circuit Judge.


     Rick Waggoner went pheasant hunting in the fall of 1990, violating
a special condition of his probation and the federal statute barring felons
from possessing firearms, 18 U.S.C. § 922.     When this and other probation
violations came to light in 1992, the district court1 revoked probation,
and Waggoner served the remaining six months of his original sentence.


     In 1995, Waggoner pleaded guilty to a § 922 violation for the conduct
that led to his probation revocation.     This appeal raises a sentencing
issue -- whether Waggoner's base offense level for the § 922 violation
should be reduced from twelve to six because he




     1
      The HONORABLE DAVID R. HANSEN, then United States District
Judge for the Northern District of Iowa, now a United States
Circuit Judge.
"possessed the firearm . . . solely for lawful sporting purposes," U.S.S.G.
§ 2K2.1(b)(1) (1989).      The district court2 denied this reduction because
hunting in violation of a condition of probation is not a lawful sporting
use.   Waggoner appeals.    We affirm.


                                         I.


       In June 1989, Waggoner pleaded guilty to one count of unlawful sale
and barter of migratory birds, a felony, and to one count of unlawful
possession of migratory birds, a misdemeanor.     See 16 U.S.C. §§ 703, 707(a)
and (b).   Waggoner, then a federally licensed taxidermist, committed these
offenses by unlawfully killing, mounting, and selling large numbers of
protected migratory birds.      The district court sentenced him to one year
in prison and three years of probation.       The judgment included a special
condition that Waggoner "is not to participate in hunting activity while
on   probation."     In December 1989, the district court suspended the
remainder of Waggoner's prison term based upon his commitment to speak to
conservation and hunting groups about the need to protect game and to
comply with game laws.     The court ordered Waggoner, during probation, "not
to participate in hunting activity" and to perform one hundred hours of
community service.


       In March 1990, while speaking to a Ducks Unlimited gathering about
the importance of obeying federal game laws, Waggoner illegally purchased
two collector's shotguns by falsely filling out the federal Firearms
Transaction Record forms.      That violated the condition of probation that
he obey federal and state laws.          Waggoner also purchased Iowa hunting
licenses in 1990 and 1991 and successfully hunted pheasant on at least one
occasion in the fall of 1990, which violated the special condition of
probation set forth in the district court's judgment and its December 1989
order.




       2
      The HONORABLE MARK W. BENNETT, United States District Judge
for the Northern District of Iowa.

                                      -2-
After a hearing, the court revoked probation because Waggoner's "repeated
violations of his probation are serious and fundamental."             The court
sentenced Waggoner to six months in prison, extended his probation to five
years, and imposed additional conditions of probation primarily directed
at his continuing alcohol abuse.


                                        II.


     In June 1995, Waggoner pleaded guilty to the § 922 violation here at
issue -- being a felon in possession of four collector's guns plus the
shotgun used to hunt pheasants in 1990.3        The Guidelines in effect when
Waggoner committed this violation authorized a reduction in determining the
base offense level for a § 922 violation "[i]f the defendant obtained or
possessed the firearm or ammunition solely for lawful sporting purposes or
collection."      §    2K2.1(b)(1)   (1989).   This   guideline   reflects   "the
sentencing commission policy that some types of illegal possessions are
relatively benign by virtue of the use for which such possession is
intended -- use that would be lawful if exercised by one not previously
convicted of a felony."       United States v. Shell, 972 F.2d 548, 552 (5th
Cir. 1992) (emphasis in original).      The 1989 Commentary confirmed that the
inquiry focuses on "intended lawful use, as determined by the surrounding
circumstances."       § 2K2.1, comment. (n.2) (1989).4




     3
      Waggoner violated both § 922(g) and § 922(n) because he
purchased the first two collector's guns while the earlier
indictment was pending.
     4
      The current guideline has been renumbered § 2K2.1(b)(2).
It provides for a reduction "[i]f 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." (Emphasis added.)
This change clarifies the inquiry by moving the former
application note's reference to lawful use into the guideline
itself. But the focus on use is unchanged. Therefore, the
result in this case would be the same under the current guideline
as well.

                                        -3-
     The issue before us is narrow.           The government concedes, correctly
in our view, that Waggoner cannot be denied the reduction simply because
a felon may not lawfully possess firearms for hunting or collection.               See
United States v. Prator, 939 F.2d 844, 847 (9th Cir. 1991); United States
v. Buss, 928 F.2d 150, 152 (5th Cir. 1991).           The government also concedes
that the four collector's guns were possessed "solely for lawful . . .
collection," thus warranting a § 2K2.1(b)(1) (1989) reduction.               But the
government argues the reduction must be denied because Waggoner's use of
the fifth firearm violated the no-hunting condition of his probation and
therefore was not "solely for lawful sporting purposes."


     Waggoner argues that he is entitled to the reduction because his
hunting activity did not violate any state or federal statute or regulation
-- he held a valid hunting license, hunted only in season, did not exceed
applicable bag limits, and so forth.      Waggoner concedes, as he must, that
he is not entitled to a § 2K2.1(b)(1) reduction if his intended sporting
use was unlawful.     See Shell, 972 F.2d at 552 (reduction not available if
defendant hunted wild turkey "out of season, in an illegally baited area").
Thus, the issue is whether the gun used to hunt pheasants was possessed
"solely for lawful sporting purpose" given Waggoner's no-hunting condition
of probation.    Waggoner has the burden of proof on this issue.           See United
States v. Dinges, 917 F.2d 1133, 1135 (8th Cir. 1990).                However, the
relevant   facts    are   undisputed.     This     is   an   issue   of    Guidelines
interpretation we review de novo.       See United States v. Hensley, 36 F.3d
39, 41 (8th Cir. 1994).


     The    Sentencing     Commission   did     not     define   "lawful    use"    in
§ 2K2.1(b)(1).     Therefore, we look to that phrase's ordinary meaning -- use
that is "conformable to law" or "allowed or permitted by law."                United
States v. Johnson, 968 F.2d 208, 212 (2d Cir.), cert. denied, 506 U.S. 964
(1992).    Viewed in that light, hunting in violation of two court orders
does not appear to be lawful use.       "[M]odern judicial decrees . . . have
the binding




                                        -4-
effect of laws for those to whom they apply."             Young v. United States ex
rel.   Vuitton   et    Fils   S.A.,   481   U.S.   787,   822   (1987)    (Scalia,     J.,
concurring).


       Waggoner nonetheless argues that he is entitled to the reduction
because he obeyed all Iowa hunting laws and regulations and therefore
committed no crime when pheasant hunting in 1990.                  Even if the word
"lawful" in § 2K2.1(b)(1) means conformance with the criminal laws (an
issue we need not decide), Waggoner's definition of crime is too narrow.
He violated an express court order not to engage in "hunting activities,"
an order entered to protect the public from the resumption of his prior
illegal activities.      The district court had inherent power to punish for
contempt of that order, a power "absolutely essential to the performance
of [its] duties."      Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450
(1911).


       The   purpose    of    criminal   contempt    is   to    "punish    the   act    of
disobedience as a public wrong."             Michaelson v. United States ex rel.
Chicago, S.P., Minn. & Omaha Ry., 266 U.S. 42, 65 (1924).                Beginning with
the Judiciary Act of 1789, Congress has both ratified and circumscribed the
power to punish for contempt.         See Green v. United States, 356 U.S. 165,
169-72 (1958); Ex parte Robinson, 86 U.S. (19 Wall.) 505, 510-11 (1873);
Anderson v. Dunn, 19 U.S. (6 Wheat.) 204, 227-28 (1821).                   The current
statute authorizing federal courts to punish for criminal contempt is part
of the criminal code.          See 18 U.S.C. § 401.       As the Supreme Court has
stated, "Criminal contempt is a crime in the ordinary sense; it is a
violation of the law, a public wrong which is punishable by fine or
imprisonment or both."        Bloom v. Illinois, 391 U.S. 194, 201 (1968).         Thus,
while the punishment imposed on Waggoner for violating these particular
court orders was probation revocation, his conduct is properly considered
unlawful in the criminal sense of that term.




                                            -5-
     Waggoner also argues that he has been denied the reduction simply
because as a felon he violated § 922 by hunting with a firearm.          But
Waggoner's special condition of probation was not only that he refrain from
hunting with a firearm -- that would have been superfluous to the general
condition that he obey all laws, including § 922.      Rather, Waggoner was
prohibited from all "hunting activity," which would include activities such
as hunting with bow and arrow, or enlisting friends or customers to shoot
migratory birds that he could then illegally mount and sell.        Waggoner
violated this special condition.     He committed the violation by using a
firearm that was in his possession for this unlawful sporting purpose.   For
that reason, a reason peculiar to Waggoner's § 922 offense, he was properly
denied a § 2K2.1(b)(1) reduction.


     The sentence of the district court is affirmed.     Because the court's
judgment provided that Waggoner would remain on bond pending appeal, the
case is remanded for amendment of that judgment consistent with this
opinion.


BRIGHT, Circuit Judge, dissenting.


     I believe Rick Waggoner's hunting was consistent with the purpose of
the § 2K2.1(b)(1) reduction.   Accordingly, I dissent.


     Waggoner pled guilty to being a felon in possession of a firearm.
The district court determined that Waggoner's sentencing range was 10-16
months and sentenced him to five months incarceration and five months home
confinement.   Waggoner asserts that he was entitled to a reduction under
the Sentencing Guidelines because he used the firearm for a "lawful
sporting purpose."   If the reduction applies, Waggoner falls within a 0-6
month sentencing range.   I believe the reduction is appropriate.




                                     -6-
                                   DISCUSSION


                                       I.


     The   1989   version   of   U.S.S.G.   §   2K2.1(b)(1)   states,   "[i]f   the
defendant obtained or possessed the firearm or ammunition solely for lawful
sporting purposes or collection, decrease the offense level determined
above to level 6."    Waggoner hunted with a license during hunting season
and obeyed all gaming laws.       Accordingly, the Government concedes that
Waggoner used the gun solely for a sporting purpose (i.e. hunting) and only
contests the lawfulness of that hunting.         The district court reluctantly
agreed that Waggoner hunted unlawfully because a probation condition
instructed him not to hunt.1 (Sentencing Tr. at 33.)


     The majority opinion concludes that Waggoner's hunting was not
"lawful" by making two arguments.      First, the majority opinion


     1
     The district court made repeated references to the injustice
of the 10-16 month sentencing range:

          It pains me to rule against you. Personally I would
     want to rule in your favor. It's a close enough question
     I would like to rule in your favor to get into a
     sentencing range that I think is more just, . . . .
     (Sentencing Tr. at 33.)

     . . . .

     I -- I am the first one to recognize I could be wrong.
     I hope I'm wrong. I hope the Eighth Circuit sees it your
     way, . . . . (Id. at 34.)

     . . . .

     [The 10-16 month range] is too harsh, it's too long, it's
     too severe, . . . . If it were up to me, I would give you
     probation. I wouldn't hesitate. (Id. at 41.)

     After sentencing Waggoner to the most lenient sentence
available, the court observed that "[i]f I could do less than that,
I would. But my hands -- my hands are bound." Id.


                                      -7-
holds that, for purposes of § 2K2.1(b)(1), the term "lawful" must be given
its "ordinary" meaning.        Slip Op. at 4.     Second, the majority opinion
determines that Waggoner's hunting was unlawful because he could be held
in criminal contempt of court for violating a probation condition that he
not hunt.     Id. at 5.


        I   respectfully   disagree.   First,   the     majority's    definition    of
"lawful" finds no support in the case law, is implicitly rejected by every
court analyzing the reduction, and contradicts a definition of "lawful"
utilized in a case quoted approvingly by the majority.                  Second, the
majority's contempt argument cannot be distinguished from recent Eighth
Circuit law.


                                       A.


        Whether the § 2K2.1(b)(1) reduction applies depends on whether
Waggoner's hunting was "lawful."       The majority opinion, searching for a
definition of "lawful," observes that "lawful" is not defined within
§ 2K2.1(b)(1), slip op. at 4, then decides to define "lawful use" by
"look[ing] to that phrase's ordinary meaning . . . ."           Id.    The majority
opinion concludes that Waggoner's hunting was not within the ordinary
meaning of "lawful" because he violated a condition of his probation.              Id.
at 5.


        The majority opinion concedes, however, that "Waggoner cannot be
denied the reduction simply because a felon may not lawfully possess
firearms for hunting or collection."        Id. at 4.    By definition, then, the
"ordinary" meaning of "lawful" cannot be used for § 2K2.1(b)(1) as it
"would render . . . [the reduction] a nullity, because the provision
applies only to the receipt, possession, or transportation of firearms by
`prohibited persons,' or persons who could not lawfully possess them."
United States v. Buss, 928 F.2d 150, 152 (5th Cir. 1991).




                                       -8-
     Felons are not the only individuals who receive the benefits of
§ 2K2.1(b)(1) despite their unlawful use.      For example, fugitives from
justice, illegal aliens, those dishonorably dismissed from the Armed
Forces, and individuals who renounce their citizenship are all forbidden
from possessing firearms, 18 U.S.C. § 922(g), and the application of an
"ordinary" definition of "lawful" would preclude them from the reduction.
Of course, the reduction does apply to these individuals, United States v.
Prator, 939 F.2d 844, 846-47 (9th Cir. 1991), because the courts do not
adopt the "ordinary" definition of "lawful" for § 2K2.1(b)(1).


     In fact, the Sentencing Commission intended to sentence felons in
possession who use guns in a manner not involving criminal activity or with
the potential to harm other people less severely than other felons in
possession.   See, e.g., United States v. Lam, 20 F.3d 999, 1002 (9th Cir.
1994) ("[W]e do see a good deal of logic in the Commission's decision to
limit the reduction to those who hold a weapon for lawful sporting or
collection purposes.    Neither of those purposes encompasses the killing or
maiming of human beings, but personal protection surely does."); Buss, 928
F.2d at 152 ("[A] former felon who possesses a firearm for use in hunting
does not raise the same concerns as one who possesses a firearm for use in
future crimes.").   This policy is also consistent with the commentary notes
to § 2K2.1(b)(1).      Prator, 939 F.2d at 846 ("The commentary to section
2K2.1(b)(1) fully supports our view that the Sentencing Commission intended
to reduce the punishment if the illegally possessed firearm was not
intended to be used for criminal activities.").


     In my view, the Fifth Circuit correctly defines "lawful" as a
sporting purpose or collection that would be lawful if performed by any
citizen free of all legal disabilities.    United States v. Shell, 972 F.2d
548, 552-53 (5th Cir. 1992).       This definition is consistent with the
language and purpose of the reduction.




                                     -9-
     The   majority    quotes   Shell   regarding   the   policy   underlying   the
§ 2K2.1(b)(1) reduction, slip op. at 3, but fails to mention a detailed
discussion in the following paragraph of Shell which contradicts the
argument that Waggoner's hunting was unlawful:

     [T]he reduction provisions . . . for felons in possession do
     not turn on the axiomatic truism that a felon can never
     lawfully possess a firearm. The entire reduction would clearly
     be subsumed in such a proposition. Rather, the availability of
     the reduction turns on the purpose or use for 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. at 552 (emphasis added).


     Shell then clarified an earlier decision, United States v. Pope, 871
F.2d 506 (5th Cir. 1989), which suggested that a felon could never lawfully
possess a gun collection under § 2K2.1(b)(1).       The majority opinion quotes
Shell a second time without mentioning that the sentences immediately
preceding and following the quoted phrase, when read in the context of the
entire opinion, appear to contradict the holding of the majority.         I quote
the three sentences in their entirety, with the phrase quoted by the
majority underlined:


     The unavailability of the reduction in Pope stemmed not from
     the fact that felons cannot possess guns in a collection, but
     from the unlawful nature of the gun collection--one which
     included an unregistered silencer--because even a citizen free
     of all [legal] disabilities could not lawfully possess such a
     collection. The same would be true, for example, if the felon
     possessed a shotgun for the purpose of hunting wild turkey, but
     did so out of season, in an illegally baited area. As that
     would be an unlawful sporting possession by any citizen, the
     sporting purpose reduction would be unavailable to the
     convicted felon.


Id. at 552-53 (emphasis added).




                                        -10-
     In Shell, the Fifth Circuit makes explicit what was implicit in the
case law by emphasizing the lawfulness of the activity from the perspective
of a citizen who is "not under any legal disability."                  Id. at 552 (emphasis
added).    Indeed, the analysis of the lawfulness of the hunting under the
reduction "turns" on this analysis.          Id. (emphasis added).          Thus, we do not
consider whether the individual is a felon, on probation, released on bail,
or under a court order forbidding him to hunt, because these individual-
specific factors are irrelevant for purposes of determining, as a general
matter, what constitutes a "lawful sporting purpose."                     Of course, under
this view of § 2K2.1(b)(1), Waggoner is entitled to the reduction because,
if a citizen, not under the legal disabilities of Waggoner's probation
conditions, engaged in the hunting actually performed by Waggoner, that
hunting would be lawful.


                                             B.


     The    majority's         second   argument    is    that    Waggoner's   hunting     was
unlawful   because,       by    violating   a     condition       of   probation,   Waggoner
theoretically could be prosecuted for criminal contempt.                    Slip Op. at 5.
This is not consistent with this court's precedent.                    In United States v.
Mendoza-Alvarez, 79 F.3d 96 (8th Cir. 1996), the defendant pled guilty to
illegal entry after deportation for a felony in violation of 8 U.S.C.
§ 1326(a) and being an illegal alien in possession of a firearm in
violation of 18 U.S.C. § 922(g)(5).             Id. at 97.       Mendoza-Alvarez asserted
he should receive a § 2K2.1(b)(2) reduction because he possessed the
firearm solely for hunting, but the district court denied the reduction
because Mendoza-Alvarez violated Iowa law by operating his vehicle with a
loaded rifle.       Id.        This court reversed and remanded, holding that
"transporting   a   firearm        in   violation    of    auto    safety   laws    does   not
constitute, per se, an `otherwise unlawful use' of a firearm . . . ."                      Id.
at 98.




                                            -11-
       Under the majority's reasoning in this case, however, Mendoza-
Alvarez's hunting would not constitute a "lawful sporting purpose."
Presumably, the district court order deporting Mendoza-Alvarez directed him
not to return to this country.      Thus, Mendoza-Alvarez could be held in
criminal contempt for reentering and, therefore, his hunting could not be
"lawful."     In addition, Mendoza-Alvarez committed another crime, beyond
unlawful possession of a firearm, by illegally reentering the country.
Finally, Mendoza-Alvarez could not "lawfully" hunt in Iowa because he could
not lawfully hunt anywhere in the country.


       A unanimous Mendoza-Alvarez court, however, engaged in no discussion
whatsoever of the "lawfulness" of Mendoza-Alvarez's hunting in relation to
the fact that he could not, by definition, hunt lawfully in this country.
Nor did the court consider whether Mendoza-Alvarez could be in contempt for
violating a court order by reentering.      The court did not explore these
issues because they are irrelevant for a determination of the lawfulness
of the hunting.


       It is instructive, however, to observe the facts which this court did
find indicative of "lawful" hunting.     For example, this court noted that
Mendoza-Alvarez presented evidence that he possessed the firearm solely for
hunting, hunted the morning of his arrest, and possessed an Iowa hunting
license.    Id. at 98.   Indeed, this court noted that, from this evidence,
"a reasonable trier of fact could conclude that he `possessed all . . .
firearms solely for lawful sporting purposes,' i.e., hunting pursuant to
a state hunting license."     Id. (emphasis added).


       Furthermore, under the majority's reasoning, virtually no individual
on probation can receive a § 2K2.1(b)(1) reduction because probation orders
include boilerplate conditions that the probationer obey all federal and
local laws.    A probationer who carries a gun, for example, violates federal
law.   Thus, every




                                     -12-
probationer   who   hunts   violates    a    condition   of   probation   and   could
theoretically be held in contempt.           Of course, no court holds that the
reduction is inapplicable for probationers because such a result violates
the purpose of the reduction.          In short, the potential of a contempt
conviction fails to illuminate whether the hunting itself was lawful.


                                        II.


     When the above analysis is framed by an examination of the Sentencing
Commission's commentary for § 2K2.1(b)(1), the lawfulness of Waggoner's
hunting is apparent.    The commentary notes state:


     Under § 2K2.1(b)(1), intended lawful use, as determined by the
     surrounding circumstances, provides a decrease in the offense
     level.    Relevant circumstances include, among others, the
     number and type of firearms (sawed-off shotguns, for example,
     have few legitimate uses) and ammunition, the location and
     circumstances of possession, the nature of the defendant's
     criminal history (e.g., whether involving firearms), and the
     extent to which possession was restricted by local law.


U.S.S.G. § 2K2.1, comment. (n.2) (1989).


     These factors favor Waggoner.          There is no dispute that (1) Waggoner
used a hunting shotgun, not a sawed-off shotgun or otherwise illegal gun,
and his ammunition consisted of field loads for pheasants; (2) Waggoner
hunted safely and in an appropriate location; (3) Waggoner had no prior
conviction involving the illegal use of guns; and (4) local law permitted
Waggoner to hunt during hunting season and with a license.


     I find no case which considers, as a relevant factor under the
commentary notes to § 2K2.1(b)(1), the probationary status of the felon in
possession or the possibility of a contempt order.            In my




                                       -13-
view, we should adopt the reasoning of the Fifth Circuit in Shell because
it offers a standard consistent with the purpose of the § 2K2.1(b)(1)
reduction and is faithful to the commentary notes which focus upon the
lawfulness of the hunting itself, not whether the defendant was under any
sort of legal disability.


     Finally,      the     above   analysis    of   "lawful    sporting     purpose"    is
consistent    with       the   Sentencing     Guidelines     treatment     of    probation
violations.   The Guidelines define a violation of a condition of probation
as a "breach of trust,"        U.S.S.G. Ch. 7, Pt. A, intro. comment. 3(b) (Nov.
1995), and reached this conclusion only after a careful consideration of
two competing theories regarding sanctioning violations of probation.                  Id.
This provision of the Guidelines indicates the Sentencing Commission's
recognition   of     a    distinction   between     breach    of   trust   and   unlawful
         2
behavior.




     2
      Indeed, courts repeatedly describe violations of probation
conditions or supervised release as a "breach of trust." See,
e.g., United States v. Glasener, 981 F.2d 973, 975 (8th Cir.
1992) ("breach of trust" for violation of terms of supervised
release); United States v. Agard, 77 F.3d 22, 26 (2d Cir. 1996)
("breach of trust" for violation of condition of probation);
United States v. Gaskins, 849 F. Supp. 1102, 1105 (E.D. Va. 1994)
(stating that defendant lying to probation officer constituted a
"serious breach of trust"). In fact, the district court
considered Waggoner's transgression consistent with this view
because the court stated in its revocation of probation that
Waggoner "has proven by his conduct to be unworthy of the trust a
probationary sentence is based upon." (Appellee's Add. at 29.)
Viewing a probation violation as a "breach of trust" is logical
because "[i]n order to justify a revocation order `all that is
required is enough evidence, within a sound judicial discretion,
to satisfy the district judge that the conduct of the probationer
has not met the conditions of probation.'" United States v.
Goeller, 807 F.2d 749, 751 (8th Cir. 1986) (quoting United States
v. Burkhalter, 588 F.2d 604, 606 (8th Cir. 1978) (quoting United
States v. Garza, 484 F.2d 88, 89 (5th Cir. 1973))).


                                            -14-
                                 CONCLUSION


     Waggoner's actions fit squarely within the behavior envisioned by the
Sentencing Commission when it formulated the reduction for "lawful sporting
purposes."   Accordingly, I would reverse the judgment of the district court
and remand for resentencing.


     A true copy.


             Attest:


                  CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                    -15-
