United States v. Mixon, Sheyerman , 457 F.3d 615 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3795
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHEYERMAN D. MIXON,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 03 CR 33—Charles N. Clevert, Jr., Judge.
____________
ARGUED MAY 9, 2006—DECIDED JULY 12, 2006
____________
Before CUDAHY, KANNE, and WOOD, Circuit Judges.
KANNE, Circuit Judge. Sheyerman Mixon, a felon, was
convicted of possessing ammunition, see 18 U.S.C.
§ 922(g)(1), after police caught him casing a video store
while carrying an antique .38-caliber revolver loaded
with five 9mm rounds. The government could not prosecute
Mixon for having the gun itself; felons are prohibited from
having “firearms,” id. § 922(g)(1), but an “antique fire-
arm”—like this revolver—is not a “firearm” as defined in
the Gun Control Act, see id. § 921(a)(3), (a)(16). A felon is
prohibited from having “ammunition,” however, so the
government charged Mixon with possessing the 9mm
rounds instead of the gun. Mixon moved to dismiss the
indictment on the theory that ammunition loaded in what
2 No. 05-3795
is not a “firearm” cannot be “ammunition” as defined in
the Gun Control Act, see id. § 921(a)(17)(A). The district
court denied that motion and found Mixon guilty after a
bench trial. We affirm.
I.
Local police in Glendale, Wisconsin, stopped Mixon on
suspicion that he planned to rob a video store. At the time
he was carrying a revolver loaded with five bullets. The
government learned that the gun was a .38-caliber Hopkins
& Allen revolver manufactured before 1899, and thus under
federal law Mixon could lawfully possess it even though he
has felony convictions for reckless homicide and reckless
endangerment with a weapon. But the government took the
position that the exemption for the gun did not cover the
bullets loaded inside, and so Mixon was charged with
possessing the ammunition.
His first response was to argue that the bullets should
be suppressed on the theory that the police did not have
probable cause to stop and search him. A magistrate judge
conducted an evidentiary hearing at which one of the
arresting officers testified that he stopped and searched
Mixon and another man while following up on a tip about
suspicious men in the area. The officer also testified that he
found the loaded gun in Mixon’s coat pocket. Mixon did not
testify. At the conclusion of the hearing, the magistrate
judge recommended that the district court find that the
police had reasonable suspicion to stop the men, and that
the men consented to be searched.
Before the district court could take up that recommenda-
tion, Mixon executed a plea agreement that would have
abandoned the unresolved motion. As part of his agreement
Mixon stipulated to the commerce element of § 922(g)(1)
(the bullets were manufactured in Russia and brought to
the United States through foreign commerce), but at this
No. 05-3795 3
point he still did not comprehend the implication of possess-
ing them in an antique firearm. After entering a guilty plea,
however, Mixon moved to withdraw that plea on the ground
that he entered it on the mistaken belief that his federal
sentence would run concurrently with a state sentence he
was already serving for violating his parole. Judge
Stadtmueller allowed Mixon to withdraw his plea and later
recused himself from further involvement in the case.
Judge Clevert took over. He first addressed the unre-
solved suppression motion and received additional evidence.
Mixon testified that he did not consent to be searched, and
that he didn’t even know he was carrying a gun. The
government introduced the 9mm bullets into evidence. The
district court found Mixon not credible and adopted the
magistrate judge’s recommendation to deny the motion to
suppress.
Mixon then moved to reconsider the suppression ruling
and also filed a motion to dismiss the indictment. In the
latter motion he argued for the first time that it is not
a crime to possess ammunition that is loaded into an
antique firearm. The motion to dismiss was referred to a
magistrate judge, who reasoned that it should be denied
because the bullets were designed for use in other guns that
would qualify as firearms and so it was irrelevant that
these bullets happened to be in an antique revolver. The
district court adopted the magistrate’s recommendation and
denied the motion to dismiss.
Mixon then waived his right to a jury trial, and the
parties proceeded by written stipulations. Those stipula-
tions recount that the bullets were Russian-made 9mm Wolf
cartridges and were loaded into a “.38 caliber Hopkins &
Allen revolver.” But no mention is made of the age or
“antique” character of the gun, and nothing is said about
whether the same bullets could be used in other guns, or
even whether they could safely be fired from this gun. The
4 No. 05-3795
district court convicted Mixon and sentenced him to 45
months’ imprisonment.
II.
Mixon’s only argument on appeal is that 18 U.S.C.
§ 922(g)(1) does not apply to bullets that otherwise would
qualify as “ammunition” as long as they are loaded into
an antique firearm. Mixon argues that a gun is not consid-
ered a “firearm” under the Gun Control Act if it
was manufactured before 1899, and because ammunition is
prohibited only if it is designed for a firearm, bullets
designed for an antique are not prohibited for felons to
possess. The statute provides that a felon may not “ship
or transport in interstate or foreign commerce, or possess in
or affecting commerce, any firearm or ammunition.” 18
U.S.C. § 922(g)(1). In defining the term “firearm,” the Act
specifically excludes from its coverage any gun that is an
“antique,” i.e., any firearm “manufactured in or before
1898.” Id. § 921(a)(3), (a)(16). The government has never
disputed that the revolver Mixon possessed was manufac-
tured in or before 1898, but neither side presented evidence
of that fact at trial.
The Gun Control Act defines “ammunition” to mean
“ammunition or cartridge cases, primers, bullets, or propel-
lent powder designed for use in any firearm.”
Id. § 921(a)(17)(A) (emphasis added). Bullets are “ammuni-
tion” if they are “designed for use in any firearm.” 18 U.S.C.
§ 921(a)(17)(B) (emphasis added). If these bullets had been
designed exclusively for use in the Hopkins & Allen re-
volver, they would not be “ammunition” because
by definition this antique revolver is not a “firearm.” On the
other hand, if the bullets were designed for use, not just in
this antique revolver, but in other guns manufactured after
1898, then it would appear, given the literal language of the
definition, that they are “ammunition” because they would
No. 05-3795 5
be designed for any firearm. Mixon, though, insists that the
only logical construction of the statute is that bullets loaded
in an antique firearm— whether or not they also are usable
in a gun that’s not an antique—are not “ammunition” as
that term is used in the Gun Control Act.
Mixon posits an interesting argument, but in the end, the
outcome of this case must turn on the facts presented to the
trial court. In moving to dismiss, Mixon represented that,
for purposes of his motion, the parties disputed “no relevant
facts.” But that is not so. What was not disputed before trial
is that Mixon had a .38-caliber firearm loaded with 9mm
rounds. But it’s the design of the bullets, not the location,
that matters. There was no agreement— indeed, no effort
by Mixon to suggest—that these bullets were “designed” for
use in this gun. It is true that the bullets were in the
cylinder, but that simple fact hardly establishes as a matter
of law that they were designed for, and could be safely used,
in this weapon. We may assume that a 9mm bullet theoreti-
cally could be fired from a .38-caliber gun, since .38-caliber
is roughly equivalent to 9.65mm. But Mixon did not even
establish an equivalency between the two measures when
he moved to dismiss, and he certainly did not show the
absence of any dispute as to whether closeness in size of the
bullets is all that it takes to show that a bullet is “designed”
to be used in a gun within which it happens to fit.
As for trial, Mixon essentially abandoned his defense
by omitting the facts necessary to establish it from the
stipulated evidence. As with his motion to dismiss, he failed
to include in the stipulations any facts that might show the
bullets were designed for or usable in this gun. More
importantly, though, Mixon did not even insist on
a stipulation that the .38-caliber handgun was an “antique
firearm” or that it was manufactured in 1898 or before.
Thus, as far as the trial evidence shows, Mixon was caught
with both a gun and bullets that he could not lawfully
possess as a felon.
AFFIRMED.
6 No. 05-3795
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-12-06