United States v. Holger-Helmut Brummer , 598 F.3d 1248 ( 2010 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13613 ELEVENTH CIRCUIT
MARCH 8, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-20411-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HOLGER-HELMUT BRUMMER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 8, 2010)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Holger-Helmut Brummer appeals the district court’s order that he forfeit two
firearms and six rounds of ammunition pursuant to his conviction of knowingly
and willfully failing to declare firearms to a common carrier in violation of 18
U.S.C. § 922(e). Specifically, Brummer argues that the forfeiture provision of 18
U.S.C. § 924(d)(1) does not apply to violations of § 922(e), or, in the alternative,
that the district court may in its discretion refuse to order forfeiture under §
924(d)(1).
The parties do not dispute the facts. A federal grand jury indicted Brummer
with knowingly and willfully delivering a package containing firearms and
ammunition to a common carrier, for transportation and shipment in foreign
commerce, without providing written notice to the carrier that the firearms and
ammunition were being transported and shipped, in violation of 18 U.S.C. §
922(e). The indictment also called for Brummer to forfeit to the United States one
Smith and Wesson .357 caliber revolver, one Walther .380 caliber pistol, and six
rounds of .380 caliber ammunition upon conviction, pursuant to 18 U.S.C. §
924(d)(1) and 28 U.S.C. § 2461(c). Brummer pleaded guilty to knowingly and
willfully violating § 922(e).
The district court, despite Brummer’s arguments to the contrary, concluded
that the forfeiture provision of § 924(d)(1) applies to violations of § 922(e). The
district court also stated that if it had the discretion to do so, it would deny the
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forfeiture of Brummer’s weapons, but that it lacked discretion to deny forfeiture.
Brummer challenges those conclusions in this appeal. We review de novo
questions of statutory interpretation. Chepstow Ltd. v. Hunt, 381 F.3d 1077 (11th
Cir. 2004).
The forfeiture provision at issue in this appeal provides in applicable part:
Any firearm or ammunition involved in or used in any knowing
violation of subsections (a)(4), (a)(6), (f), (g), (h), (i), (j), or (k) of
section 922, or knowing importation or bringing into the United States
or any possession thereof any firearm or ammunition in violation of
section 922(l), or knowing violation of section 924, or willful
violation of any other provision of this chapter or any rule or
regulation promulgated thereunder, . . . shall be subject to seizure and
forfeiture . . . .
18 U.S.C. § 924(d)(1). The statute under which Brummer was convicted, § 922(e),
makes it unlawful for anyone:
knowingly to deliver . . . to any common or contract carrier for
transportation or shipment in . . . foreign commerce, to persons other
than licensed importers, licensed manufacturers, licensed dealers, or
licensed collectors, any package or other container in which there is
any firearm or ammunition without written notice to the carrier that
such firearm or ammunition is being transported or shipped . . . .
Brummer argues that because § 922(e) is not contained in § 924(d)(1)’s list of
“knowing” violations, a violation of § 922(e) does not fall within the ambit of the
forfeiture provision of § 924(d)(1).
Brummer’s argument misses the mark. The statute that provides the penalty
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for a violation of § 922(e) states in applicable part that “whoever . . . willfully
violates any other provision of this chapter shall be fined under this title,
imprisoned not more than five years, or both.” 18 U.S.C. § 924(a)(1)(D); see
Bryan v. United States, 524 U.S. 184, 187-88, 118 S. Ct. 1939, 1943 (1998)
(explaining § 924’s relation to the rest of Title 18, Chapter 44 of the United States
Code). Willfulness is therefore an element of the offense under § 922(e). See
United States v. Andrade, 135 F.3d 104, 108 n.2 (1st Cir. 1998); United States v.
Ali, 68 F.3d 1468, 1473 (2d Cir. 1995).
The indictment charged Brummer with knowingly and willfully violating §
922(e). During his plea colloquy, Brummer acknowledged that willfulness is an
element of a § 922(e) violation, and he pleaded guilty to a willful violation of §
922(e). That provision falls within the same chapter as § 924(d)(1), which
provides that “any firearm or ammunition involved in or used in any . . . willful
violation of any other provision of this chapter . . . shall be subject to seizure and
forfeiture . . . .” Under the plain language of § 924(d)(1), the forfeiture provision
applies to willful violations of § 922(e). “If the meaning of the statutory language
is plain, we go no further.” Wachovia Bank, N.A. v. United States, 455 F.3d 1261,
1267 (11th Cir. 2006).
Brummer also argues that, even if the forfeiture provision contained in §
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924(d)(1) applies to violations of § 922(e), the district court retains discretion to
deny forfeiture. Brummer bases that argument on the fact that § 924(d)(1)
provides that “[a]ny firearm or ammunition involved in or used in any [of the
specified offenses] shall be subject to seizure and forfeiture,” not that such
property “shall be forfeited.” Brummer’s argument is that the phrase “shall be
subject to seizure and forfeiture” gives the district court discretion to return
firearms and ammunition in appropriate cases.
Again, Brummer’s argument misses. It completely ignores 28 U.S.C. §
2461(c), a provision cited in the part of the indictment containing the forfeiture
allegations. Section 2461(c) provides:
If a person is charged in a criminal case with a violation of an Act of
Congress for which the civil or criminal forfeiture of property is
authorized, the Government may include notice of the forfeiture in the
indictment . . . pursuant to the Federal Rules of Criminal Procedure.
If the defendant is convicted of the offense giving rise to the
forfeiture, the court shall order the forfeiture of the property as part of
the sentence in the criminal case pursuant to the Federal Rules of
Criminal Procedure . . . .
(emphasis added). “The word ‘shall’ does not convey discretion. It is not a leeway
word.” United States v. Quirante, 486 F.3d 1273, 1275 (11th Cir. 2007).
Brummer was charged with willfully violating § 922(e). As we explained
earlier, § 924(d)(1)’s forfeiture provision applies to willful violations of § 922(e).
The indictment charging Brummer with violating § 922(e) included a notice of
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forfeiture. Brummer pleaded guilty and was convicted. The district court therefore
was required to order forfeiture of the property. 28 U.S.C. § 2461(c). The statute
directs that the court do so “pursuant to the Federal Rules of Criminal Procedure.”
Id.Fed. R. Crim P. 32.2(b)(1) requires that, “[a]s soon as practical after a . . .
plea of guilty or nolo contendere is accepted, on any count in an indictment or
information regarding which criminal forfeiture is sought, the court must determine
what property is subject to forfeiture under the applicable statute.” Rule 32.2(b)(2)
explains the next step: “If the court determines that the property is subject to
forfeiture, it must promptly enter a preliminary order of forfeiture . . . directing
forfeiture of the specific property . . . .” The district court properly determined that
the two guns and six rounds of ammunition involved in Brummer’s willful
violation of § 922(e) were subject to forfeiture under § 924(d)(1). Fed. R. Crim. P.
32.2 therefore required the district court to direct forfeiture of the guns and
ammunition. The court lacked discretion to do otherwise.
AFFIRMED.
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