Bad Sport

United States v. Mason, No. 11-544 (2d Cir. September 4, 2012, (Walker, Pooler, Livingston, CJJ)

In this part of the country, the “lawful sporting purposes” provision of U.S.S.G. § 2K2.1(b)(2) and Application Note 6 – a downward adjustment that the defendant bears the burden of proving – is rarely invoked. Indeed, this decision is only the Circuit’s second look at it.  Here, the court concludes that the district court misapplied the provision, but that the error was harmless.

Rodney Mason, resident of Vermont, pled guilty to being a felon in possession. He had four firearms and, in connection with his sentencing hearing, introduced some evidence that, at least for three of them, he kept the guns for hunting purposes. The district court nevertheless refused to apply the enhancement, finding that Mason had not shown that he actually used the guns for hunting.  This was error because the focus of the provision is the purpose of the defendant’s possession of the gun or guns, and not necessarily whether he can prove that he actually used them for a lawful sporting purpose. The guideline “state[]s no requirement that a defendant produce evidence of his actual use of the firearms in question.” 

But here, the error was harmless. Mason introduced evidence relating to only three of the four guns he had, and the guideline requires such proof for “each firearm at issue.” Mason denied possessing the fourth at all; by doing so, he “cannot be said even to have claimed,” let alone proven,” that he “possessed that firearm for lawful sporting purposes.”  Thus, since the district court would have rejected the adjustment even absent its interpretative error, the error was harmless.