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United States v. Wickstrom

: November 8, 1989.

THE UNITED STATES
v.
JAMES P. WICKSTROM, ET AL. VICTOR FRANCIS RIZZO, APPELLANT



Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Crim. No. 88-114.

Mansmann and Greenberg, Circuit Judges, Gawthrop District Judge.*fn*

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

We are faced here with a novel appeal premised on the theory that a silencer is not a firearm for the purpose of establishing a base offense level under the Sentencing Guidelines. Since the crime for which defendant was charged, and pled guilty, was conspiracy to possess an unregistered firearm, reference to that title of the United States Code which prescribes the licensing of firearms dispels the defendant's argument. We find that the clear language of title 18 U.S.C.A. § 921 (West 1975), which defines a "firearm silencer" as a firearm, supports the presentencing report's calculation of the defendant's offense severity rating. Consequently, we will affirm the sentence imposed by the district court.

I.

In July of 1988, a federal Grand Jury sitting in Pittsburgh handed down a six count indictment against co-defendants James P. Wickstrom, Victor F. Rizzo, Thomas Martin Ryan, David F. Gardner, and Harry Charles Luttner. Victor F. Rizzo, appellant here, was charged with conspiracy, purchase of counterfeit U.S. currency, conspiracy to possess unregistered firearms, (silencers), and possession of unregistered firearms (silencers).

Rizzo originally pled not guilty to all charges, then changed his plea to guilty to two counts: possession of counterfeit currency and conspiracy to possess unregistered firearms. The other counts against Rizzo were nolle prossed on the day he entered his guilty plea. Rizzo cooperated with the government as an informant, leading to the arrest of Wickstrom. Rizzo then testified at the original trial of Wickstrom and Gardner which ended in a mistrial and also testified at Gardner's subsequent trial.

Rizzo was sentenced to 27 months for the two counts to which he pled guilty. He was also sentenced to a two year term of supervised release and a $100 special assessment, which he paid. Rizzo filed this timely appeal from his sentence on the basis that the district court had improperly given an offense severity level of 12 for conspiracy to possess unregistered firearms when the instrument involved was a silencer. In addition, Rizzo challenges the district court's finding that he played a supervisory or managerial position in the offenses charged. Rizzo also asks us to find that the district court erred by refusing to impose a sentence below the Guideline Range when Rizzo cooperated with the government by testifying against Wickstrom and Gardner.

Our review of the district court's determination that a silencer is a firearm for the purposes of § 2K2.2 of the Sentencing Guidelines is plenary since it involves a matter of statutory interpretation. However, the district court's refusal to depart from the Guideline range cannot be reviewed since "the statute providing for appeals by a defendant (18 U.S.C. § 3742) simply does not authorize such an appeal." United States v. Denardi, et. al., 892 F.2d 269 (3d. Cir. 1989), slip op. at 6. The district court's determination that Rizzo played a supervisory or managerial role in the offense will be affirmed unless it is clearly erroneous since it involves a question of fact.

II.

Rizzo's first contention is that the district court erred by adopting the presentencing report's offense severity category for conspiracy to possess an unregistered firearm because the presentencing report improperly applied the Sentencing Guidelines with respect to that offense. Rizzo argues that the error occurred because the report equated a "silencer" with a "firearm". Rizzo objected to "silencer" being referred to as a firearm, but the probation officer responded in the report that the reference to a silencer as a firearm was premised on the definition found at 26 U.S.C.A. § 5845(a) (7) which defined a firearm as "any silencer (as defined in section 921 of title 18, United States Code)".

We must determine whether, in defining "firearm" for the purpose of setting a base offense level, the drafters of the Guidelines intended that "silencer" be included in the definition of "firearm", as the government contends, or whether the definition of "firearm" is limited to use as a weapon, as Rizzo contends.

Because Rizzo pled guilty to conspiracy to possess an unregistered firearm, the applicable Guideline to be used is the Guideline for the underlying offense. Section 2K2.2, relating to the possession, receipt, or transportation of firearms in violation of the National Firearms Act provides that the base offense level receives a score of 12. The commentary portion of § 2K2.2 lists the relevant statutory section as 26 U.S.C. § 5861(b)- (l). That section is part of chapter 53 of title 26 of the United States Code which is cited as the National Firearms Act. See 26 U.S.C.A. § 5849. The definitional section of the National Firearms Act is 26 ...


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