United States v. Jamieson , 202 F.3d 1293 ( 2000 )

UNITED STATES of America, Plaintiff-Appellee,
v.
Scott T. JAMIESON, Defendant-Appellant.
No. 98-5059.
United States Court of Appeals,
Eleventh Circuit.
Jan. 31, 2000.
Appeal from the United States District Court for the Southern District of Florida. No. 97-06142-CR-KLR),
Kenneth L. Ryskamp, Judge.
Before COX and DUBINA, Circuit Judges, and KRAVITCH, Senior Circuit Judge.
DUBINA, Circuit Judge:
Appellant Scott Jamieson ("Jamieson") appeals his 71-month sentence for possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Jamieson argues that the district court based his
offense level upon an erroneous interpretation of 18 U.S.C. § 921(a)(30)(A)(i). We agree. Therefore, we
vacate Jamieson's sentence and remand this case for resentencing.
I. BACKGROUND
A. Procedural History
A federal grand jury in the Southern District of Florida returned an indictment charging Jamieson
with felonious possession of a firearm. Jamieson entered into a written plea agreement with the government.
Under the terms of the plea agreement, Jamieson agreed to plead guilty to the indictment and the government
agreed to make a non-binding recommendation at sentencing that Jamieson be awarded a three-point offense
level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1.
The district court accepted Jamieson's guilty plea. To aid the district court in sentencing, the
Probation Officer prepared a pre-sentence investigation report ("PSI"). Jamieson filed written objections to
the PSI and specifically objected to the enhancement for possession of an allegedly stolen firearm. The
government filed no written objections.
In a second addendum to the PSI, the probation officer agreed with Jamieson's objection and deleted
the two-level enhancement for possession of an allegedly stolen firearm. The probation officer further noted
that the government had "orally reported" objections to the PSI. The government argued that Jamieson's
firearm was a prohibited semiautomatic assault weapon described in 18 U.S.C. § 921(a)(30), and therefore
qualified him for the enhanced base offense level of 22 pursuant to U.S.S.G. § 2K2.1(a)(3). The probation
officer then submitted a revised PSI reflecting the deletion of the two-level enhancement for the allegedly
stolen firearm, but increasing the base offense level by two levels pursuant to § 2K2.1(a)(3). The PSI also
reflected the 3-level adjustment for acceptance of responsibility. These changes resulted in a total offense
level of 21, which was identical to the level set forth in the original PSI.
At his sentencing hearing, Jamieson objected to the government's oral request for an enhancement
of the base offense level due to his alleged possession of a prohibited semiautomatic assault weapon. In an
attempt to meet its burden of proof, the government presented the testimony of firearms expert Agent Steve
Barborini of the Bureau of Alcohol, Tobacco and Firearms. According to Agent Barborini's testimony, under
current federal law, a semiautomatic rifle that can accept a magazine of over five rounds is illegal if it has two
or more of the following: a protruding pistol grip, a bayonet lug or flash hider, a threaded barrel, or a shroud
designed so that the rifle could be gripped without one's hand being burned. Agent Barborini testified that
the Norinco firearm at issue holds a 30-round magazine and is a semiautomatic gas operated rifle. He further
testified that Norinco changed the way it manufactured the firearm at issue after Congress passed a new law
banning certain types of assault weapons. Finally, Agent Barborini testified that, as a result of the redesign,
the firearm at issue did not possess two of the prohibited items, and thus, was a legal weapon.
Even though Agent Barborini testified that the firearm at issue was not an illegal semiautomatic
assault weapon, the district court decided to apply the enhancement of U.S.S.G. § 2K2.1(a)(3) because it
interpreted 18 U.S.C. § 921(a)(30)(A)(i) to prohibit any semiautomatic assault weapon manufactured by
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Norinco. We conclude that the district court's interpretation of 18 U.S.C. § 921(a)(30)(A)(i) is incorrect.
Neither the language of § 921(a)(30)(A)(i) nor the legislative history supports such an interpretation.
II. STANDARD OF REVIEW
This court reviews the district court's findings of fact for clear error and its application of the
sentencing guidelines to those facts de novo. See United States v. Gallo, 195 F.3d 1278, 1280-81 (11th
Cir.1999); United States v. Tillmon, 195 F.3d 640, 642 (11th Cir.1999).
III. DISCUSSION
Jamieson argues on appeal that the district court incorrectly interpreted 18 U.S.C. § 921(a)(30)(A)(i)
in calculating his base offense level under U.S.S.G. § 2K2.1(a)(3). Specifically, Jamieson contends that
although § 921 prohibits all models of Norinco's "Avtomat Kalashnikovs," it does not prohibit all Norinco
weapons, as the district court concluded. Moreover, Jamieson underscores Agent Barborini's testimony that
the firearm at issue was a legal weapon because it did not have two or more of the features prohibited in §
921(a)(30)(B). The government agrees with Jamieson's position and confesses error.1 Notwithstanding the
government's admission of error, we feel compelled to briefly address this first impression issue.
On September 13, 1994, Congress passed the Violent Crime Control and Law Enforcement Act of
1994, Pub.L. No. 103-322, 108 Stat. 1796 (the "Violent Crime Control Act"), in order to amend and expand
various existing statutory and regulatory provisions found in 18 U.S.C. §§ 921-930 relating to the
manufacture, distribution, and possession of certain weapons. See National Rifle Ass'n of America v. Magaw,
132 F.3d 272, 277 (6th Cir.1997); Navegar, Inc. v. United States, 103 F.3d 994, 997 (D.C.Cir.1997). Of
significance to this appeal, the 1994 Violent Crime Control Act banned the manufacture, transfer, or
possession of semiautomatic assault weapons. See 18 U.S.C. §§ 922(v)(1), 922(w)(1). Title 18 U.S.C. §
921(a)(30) defines a "semiautomatic assault weapon" as one of the nine specified firearms listed in §
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We appreciate the government's candor in not only admitting that the district court committed error, but
also in acknowledging its contribution to the district court's confusion.
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921(a)(30)(A) or as a semiautomatic rifle that meets certain requirements as listed in § 921(a)(30)(B). Section
921(a)(30)(A) provides:
The term "semiautomatic assault weapon" means—
(A) any of the firearms, or copies or duplicates of the firearms in any caliber, known as—
(i) Norinco, Mitchell, and Poly Technologies Avtomat Kalashnikovs (all models);
(ii) Action Arms Israeli Military Industries UZI and Galil;
(iii) Beretta Ar70 (SC-70);
(iv) Colt AR-15;
(v) Fabrique National FN/FAL, FN/LAR, and FNC;
(vi) SWD M-10, M-11, M-11/9, M-12;
(vii) Steyr AUG;
(viii) INTRATEC TEC-9, TEC-DC9 and TEC-22; and
(ix) revolving cylinder shotguns, such as (or similar to) the Street Sweeper and Striker 12.
18 U.S.C. § 921(a)(30)(A)(i)-(ix). Congress passed § 921(a)(30)(A)(i)-(ix) in order to ban the specific
weapons listed therein, including in sub-section (i) "(all models)" of Norinco "Avtomat Kalashnikovs." In
addition to banning certain specific firearms, Congress enacted 18 U.S.C. § 921(a)(30)(B) to ban
semiautomatic rifles regardless of make, model, or identity of manufacturer, if they had two or more of the
proscribed characteristics listed in § 921(a)(30)(B).
After passage of the Violent Crime Control Act, the Sentencing Commission established a specific
base offense level of 22 for felons, like Jamieson, who had one prior felony conviction of a crime of violence
and who were convicted of being a felon-in-possession under 18 U.S.C. § 922(g)(1), if the offense involved
a firearm described in 18 U.S.C. § 921(a)(30). See U.S.S.G. § 2K2.1(a)(3). In applying 18 U.S.C. §
921(a)(30) to Jamieson, the district court, without argument to the contrary, mistakenly concluded that all
Norinco weapons came within the ambit of 18 U.S.C. § 921(a)(30)(A)(i). Accordingly, the district court
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decided that the enhanced sentence provided in U.S.S.G. § 2K2.1(a)(3) was appropriate for the Norinco
firearm at issue.
We hold that the district court's conclusion contradicts the language of § 921(a)(30) and the
legislative history of the Violent Crime Control Act. Congress narrowly crafted the assault weapons ban to
limit the number of weapons being banned. See H.R.Rep. No. 103-489, at 6 (1994), reprinted in 1994
U.S.C.C.A.N. 1801, 1803. Moreover, the provisions of the Violent Crime Control Act set forth in 18 U.S.C.
§ 922 buttress the conclusion that not all Norinco weapons are illegal. The Violent Crime Control Act
"exempts certain weapons from its prohibitions, as listed in § 922, Appendix A, and described in § 922(v)(3)."
Magaw, 132 F.3d at 277. Appendix A to § 922 lists a variety of weapons manufactured by Norinco which
are not prohibited. Although the Appendix does not include Jamieson's firearm, the fact that a firearm is not
listed in Appendix A does not mean that the firearm is prohibited. See 18 U.S.C. § 922(v)(1)(3).
In summary, we conclude that 18 U.S.C. § 921(a)(30) does not encompass all Norinco weapons.
Section 921(a)(30)(A)(i) only bans all models of Norinco Avtomat Kalashnikovs. There was no testimony
at sentencing, nor was it the government's position, that Jamieson's weapon was an Avtomat Kalashnikov.
Moreover, Jamieson's sentence could not be enhanced pursuant to § 921(a)(30)(B). Section 921(a)(30)(B)
includes only semiautomatic weapons, regardless of make, which display two or more proscribed
characteristics. At sentencing, the government stated that Jamieson's weapon did not display two or more of
those prohibited characteristics. Therefore, the district court erred in concluding that all Norinco weapons
fit within the ambit of 18 U.S.C. § 921(a)(30)(A)(i), and in subsequently applying the offense level in
U.S.S.G. § 2K2.1(a)(3). Because Jamieson's sentence was based on an erroneous interpretation of the law,
we vacate his sentence and remand this case to the district court for resentencing consistent with this opinion.
VACATED and REMANDED.
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