           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         December 2, 2008
                                      No. 08-60550
                                    Summary Calendar                  Charles R. Fulbruge III
                                                                              Clerk

BRANDON KUHN, doing business as Crystal Caverns

                                           Petitioner
v.

BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES
(ATF)

                                           Respondent


                            On Petition for Review from
                        an Order of the Department of Justice
                         Agency No. 5-TX-091-33-PA-01118


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Brandon Kuhn (“Kuhn”) petitions this court for a review of the Respondent
Bureau of Alcohol, Tobacco, Firearms, and Explosives’s (“ATF”) denial of his
application for a permit to import, manufacture, or deal in explosive materials.
See 18 U.S.C. § 842. Kuhn appealed the ATF’s decision pursuant to 18 U.S.C.
§ 843(e)(2). At the first level of review, an Administrative Law Judge conducted
a hearing and recommended denying Kuhn’s application. The Director of
Industry Operations of the ATF, representing the Attorney General, sustained

       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
the denial in a written decision. Kuhn now petitions this court for review.
       We review the denial of an explosives permit pursuant to the
Administrative Procedure Act (“APA”), codified at 5 U.S.C. §§ 701-706. See 18
U.S.C. § 843(e)(2). Pursuant to 5 U.S.C. § 706(2)(A) & (C), we “hold unlawful
and set aside agency action, findings, and conclusions found to be” “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law” or “in
excess of statutory jurisdiction, authority, or limitations, or short of statutory
right.” As the reviewing court, “the court shall review the whole record or those
parts of it cited by a party, and due account shall be taken of the rule of
prejudicial error.” 5 U.S.C. § 706.1 “To the extent that this appeal challenges
the Director's interpretation of the statutory provisions ATF administers, we
utilize principles of Chevron deference.” Vineland Fireworks Co., Inc. v. Bureau
of Alcohol, Tobacco, Firearms & Explosives, --- F.3d ----, 2008 WL 4530536, at *4
(3d Cir. Oct. 10, 2008) (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837 (1984)).
       Pursuant to 18 U.S.C. § 842(i)(1), ATF denied Kuhn an explosives permit
because “[i]t shall be unlawful for any person . . . who is under indictment for,
or who has been convicted in any court of, a crime punishable by imprisonment
for a term exceeding one year” to “to ship or transport any explosive in or
affecting interstate or foreign commerce or to receive or possess any explosive
which has been shipped or transported in or affecting interstate or foreign


       1
         Kuhn has moved to strike portions of the administrative record because he alleges
those portions are either incorrect or prejudicial to his case. Pursuant to § 706, we must review
the entire administrative record or those parts of it cited by the parties with due account taken
of the rule of prejudicial error. Kuhn does not cite to any authority that permits this reviewing
court to strike portions of the record based solely on one party’s wishes and conclusory
allegations of prejudice. Even assuming arguendo that we strike the portions that Kuhn
requests, any change to the administrative record does not affect our decision. We therefore
deny Kuhn’s motion to strike.

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commerce.” Kuhn argues that the application of this provision to deny his
application is in error. Kuhn concedes he was previously convicted of one
violation of 18 U.S.C. § 472 (“Uttering counterfeit obligations or securities”),
which is an offense that has a statutory maximum penalty of 20 years
imprisonment.        However, Kuhn contends that because the Sentencing
Guidelines were mandatory at the time of his conviction, the term of his actual
sentence controls whether he committed a crime punishable for a term exceeding
one year. According to Kuhn, because his guidelines sentence was between zero
to six months imprisonment, his convicted offense was not a crime punishable
by imprisonment for a term exceeding one year and therefore § 841(i)(1) should
not bar him from obtaining an explosives permit.
       His argument is without merit. The statute’s plain language indicates
that the application of § 841(i)(1) turns on the term of imprisonment punishable
by the offense of conviction and indictment and does not turn on the petitioner’s
actual sentence. In interpreting another statute with identical language, the
Supreme Court has noted that “[i]t was plainly irrelevant to Congress whether
the individual in question actually receives a prison term; the statute imposes
disabilities on one convicted of ‘a crime punishable by imprisonment for a term
exceeding one year.’” Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 113
(1983) (interpreting 18 U.S.C. § 922(g)).2 In other words, the petitioner’s actual
sentence is irrelevant to the statute’s application.                Since the offense of
petitioner’s valid conviction is punishable by imprisonment exceeding one year,
the ATF acted in accordance with law and was not arbitrary nor capricious in



       2
          This holding remains good law even though other aspects of Dickerson have been
effectively superseded by statute. See Caron v. United States, 524 U.S. 308, 313 (1998); United
States v. Daugherty, 264 F.3d 513, 516 & n.7 (5th Cir. 2001); United States v. Cisneros, 112
F.3d 1272, 1281 (5th Cir. 1997).

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denying his permit application.
     For the foregoing reasons, the petition for review is
     DENIED.




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