United States v. Sivik , 192 F. App'x 127 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-16-2006
USA v. Sivik
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4528
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"USA v. Sivik" (2006). 2006 Decisions. Paper 579.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-4528
UNITED STATES OF AMERICA
v.
DARRELL W. SIVIK
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(Crim. No. 04-cr-00017)
District Court: Hon. Maurice B. Cohill
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 11, 2006
Before: Sloviter, McKee, and Rendell, Circuit Judges
(Opinion filed: August 16, 2006)
McKEE, Circuit Judge
Darrell Sivik, a federally licensed firearms dealer, appeals from the sentence that
was imposed after he entered a conditional guilty plea to charges arising from his
unlawful transfer of two machine guns in violation of 26 U.S.C. §§ 5861(e), and 5845(a)
and (b). He now argues that his conviction can not stand because it violates a
constitutional right to bear arms contained in the Second Amendment, and denies him due
process of law in violation of the Fifth Amendment. We will affirm.
1
Sivik’s claims of error rest upon his assertion that the Second Amendment
embodies a right to possess and transfer unregistered machine guns, and the applicable
registration requirements violate his Fifth Amendment privilege against self
incrimination.
We reject his Second Amendment claim based upon our discussion in United
States v. Rybar, 103 F.3d 373 (3d. Cir. 1996). In Rybar, we also noted that the Supreme
Court has upheld firearms registration requirements against challenges based upon the
Second Amendment. Id., at 281. Although Sivik’s challenge to the registration
requirements is based upon the Fifth Amendment’s privilege against self incrimination
rather than the purported constitutional right to bear arms under the Second Amendment,
his Fifth Amendment challenge is equally meritless.
Although the registration requirements as previously enacted did violate the Fifth
Amendment, see United States v. Haynes, 390 U.S. 85 (1968), Congress has since cured
the constitutional infirmity by enacting 26 U.S.C. § 5848(a). See United States v. Freed,
401 U.S. 601 (1971).1
Accordingly, the judgment of sentence will be affirmed.2
1
See also, Rybar, wherein we explained that the Supreme Court has “upheld the
constitutionality of a firearms-registration requirement against a Second Amendment
challenge.” 103 F.3d at 281. (citing United States v. Miller, 307 U.S. 174 (1939)).
2
We have also previously rejected Sivik’s argument that 18 U.S.C. 922 (0) invalidates the
revenue generating scheme of 26 U.S.C. §5861. See United States v. Grier, 354 F.3d 210(3d. Cir. 2003).
2