US v. DiIorio
Case Date: 11/22/1995
Court: United States Court of Appeals
Docket No: 95-1138
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November 22, 1995 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 95-1138 UNITED STATES, Appellee, v. DENNIS JOHN DiIORIO, Defendant, Appellant. ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Ernest C. Torres, U.S. District Judge] ___________________ ____________________ Before Torruella, Chief Judge, ___________ Selya and Cyr, Circuit Judges. ______________ ____________________ Orlando A. Andreoni on brief for appellant. ___________________ Sheldon Whitehouse, United States Attorney, Stephanie S. Browne __________________ ____________________ and Craig N. Moore, Assistant United States Attorneys, on brief for ______________ appellee. ____________________ ____________________ Per Curiam. Defendant-appellant Dennis J. DiIorio ___________ pled guilty to a three-count indictment, including possession of a firearm by a convicted felon. He appeals from his sentence on the sole ground that the district court erred in denying a reduction in his base offense level because he "possessed all ammunition and firearms solely for lawful sporting purposes or collection. . . ." United States Sentencing Guidelines, 2K2.1(b)(2) (1994). The burden is on the defendant to prove by a preponderance of the evidence that he is entitled to the reduction. United States v. ______________ Cousens, 942 F.2d 800, 802 (1st Cir. 1991). "We review for _______ clear error the district court's factual findings with regard to the intended purposes of purchasing and possessing the firearms at issue." Id. ___ Having carefully reviewed the record, including the transcript from the sentencing hearing, we conclude that it was not clear error for the district court to find that appellant failed to prove by a preponderance of the evidence that he possessed the gun and ammunition solely for sporting or collection purposes. The sentencing court's decision not to accept DiIorio's version of the relevant facts was a credibility determination best made by the district court, rather than by this court. See United States v. Wheelwright, ___ _____________ ___________ 918 F.2d 226, 228 (1st Cir. 1990). Accordingly, appellant's sentence is affirmed. See Loc. R. 27.1. ________ ___ |