United States v. Thomas Kuzma ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10042
Plaintiff-Appellee,
D.C. No.
v. 4:17-cr-00855-
RM-JR-2
THOMAS F. KUZMA,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Rosemary Márquez, District Judge, Presiding
Argued and Submitted October 4, 2019
San Francisco, California
Filed August 3, 2020
Before: Richard A. Paez and Daniel P. Collins, Circuit
Judges, and Jennifer Choe-Groves, * Judge.
Opinion by Judge Collins
*
The Honorable Jennifer Choe-Groves, Judge for the United States
Court of International Trade, sitting by designation.
2 UNITED STATES V. KUZMA
SUMMARY **
Criminal Law
The panel affirmed in part the district court’s judgment
in a case in which the defendant was convicted of possession
of a machinegun (18 U.S.C. § 922(o)) and possession of an
unregistered machinegun (26 U.S.C. § 5861(d)); and
remanded with instructions to vacate one of the two
convictions.
The panel rejected the defendant’s contention that the
statutory definition of “machinegun” underlying both counts
is unconstitutionally vague. Considering the proper
construction of the challenged statutory phrase, the panel
concluded that a weapon is “designed to shoot . . .
automatically” as required in 26 U.S.C. § 5845(b) if it has a
specific configuration of objective structural features that, in
the absence of any minor defect, would give the weapon the
capacity to shoot automatically. Because the challenged
phrase relies on the objective features of the device even
when it is combined with the statutory phrase “framer or
receiver,” the panel rejected the defendant’s contention that
the phrase is unconstitutionally vague on its face.
Finding no plain error, the panel rejected the defendant’s
challenge to the particular definition of “machinegun” that
was used in the jury instructions in this case, and concluded
that the defendant had fair notice that a particular exhibit
qualified as such a device based on its configuration of
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. KUZMA 3
objective features. The panel therefore rejected the
defendant’s as-applied vagueness challenge, as well as his
contention that the evidence was insufficient to sustain his
convictions.
As to the defendant’s challenges that apply only to his
conviction for possession of an unregistered firearm under
§ 5861(d), the panel held that any errors in declining to order
discovery, in the introduction of a no-record certificate, and
concerning whether the Government had to prove that the
exhibit was registered to a particular gun-parts supplier were
harmless.
Because the § 922(o) charge is a lesser-included offense
of the § 5861(d) offense, and because neither statute
indicates that the Government authorized cumulative
punishments to be imposed simultaneously under both
provisions, the panel held that the two convictions are
improperly multiplicitous and remanded for the district court
to vacate one of the two convictions.
COUNSEL
Davina T. Chen (argued), Glendale, California, for
Defendant-Appellant.
Angela W. Woolridge (argued), Assistant United States
Attorney; Robert L. Miskell, Appellate Chief; United States
Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.
4 UNITED STATES V. KUZMA
OPINION
COLLINS, Circuit Judge:
Defendant-Appellant Thomas Kuzma appeals his
convictions for possession of a machinegun in violation of
18 U.S.C. § 922(o) and possession of an unregistered
machinegun in violation of 26 U.S.C. § 5861(d). He argues
that the statutory definition of “machinegun” underlying
both counts is unconstitutionally vague and that, to the extent
the term does have any determinate meaning, the device he
possessed does not qualify as a machinegun. We disagree
with these contentions and with most of the other challenges
that Kuzma raises to his convictions. However, because we
agree that Kuzma’s two convictions are improperly
multiplicitous, we remand to the district court with
instructions to vacate one of the two convictions.
I
A
Thomas Kuzma was the manager of D&D Sales and
Manufacturing (“D&D”), a supplier of gun parts in Tucson,
Arizona. D&D operated out of a residence owned by its co-
founder, Donald Tatom, and at all relevant times, Kuzma
lived alone in that residence. After an investigation
suggested that D&D might be involved with unlawful
machineguns, the Bureau of Alcohol, Tobacco, Firearms,
and Explosives (“ATF”) obtained a search warrant for
D&D’s premises in early 2017. The search warrant was
executed on March 21, 2017, and during the search, ATF
agents found an “Uzi-type” receiver on a shelf in the garage,
UNITED STATES V. KUZMA 5
which functioned as D&D’s workshop. 1 The receiver was
later marked as Government’s Exhibit 12 at trial, and we
therefore will refer to it as “Exhibit 12.” As shown in a
photograph attached to the report of the Government’s
firearms expert (William Swift), Exhibit 12 looked like this
at the time ATF seized it:
1
A “receiver” is the part of a firearm that “provides housing” for the
hammer, bolt, and firing mechanism, and that “is usually threaded at its
forward portion to receive the barrel.” 27 C.F.R. § 478.11. A “bolt” is
a “sliding metal bar that positions the cartridge” at the “breech” (back)
end of the barrel, “closes the breech, and ejects the spent cartridge” after
each shot is fired. Bolt, AMERICAN HERITAGE DICTIONARY (5th ed.
2018). As we explain below, the relevant statutory definition of
“machinegun” includes, not just a fully operational machinegun, but also
the “frame or receiver” of such a weapon. See infra at 15–16.
6 UNITED STATES V. KUZMA
In the condition in which it was found, Exhibit 12 could
not shoot at all, much less shoot automatically. 2 The device
was missing certain components needed to make it operable,
including the bolt, some springs, and the top cover. It did,
however, contain a machinegun barrel at the front, as well as
a machinegun feed ramp. Swift’s report contained the
following photograph showing the position of the
machinegun feed ramp:
Exhibit 12 lacked a “blocking bar,” which is a piece of
metal that is welded into the receiver of a semi-automatic
firearm to prevent an unmodified machinegun bolt from
2
Automatic firing means that the weapon can fire “more than one
shot, without manual reloading, by a single function of the trigger.” 26
U.S.C. § 5845(b). By contrast, a weapon fires semi-automatically if it
“requir[es] a squeeze of the trigger for each shot” but each such squeeze
“[e]ject[s] a shell and load[s] the next round of ammunition
automatically.” Semiautomatic, AMERICAN HERITAGE DICTIONARY (5th
ed. 2018).
UNITED STATES V. KUZMA 7
being used. A blocking bar, however, is not a foolproof
method for preventing automatic operation. As Swift
testified at trial, there are machinegun bolts that “have a slot
machined into them,” which allows them to fit in a gun with
a blocking bar. Nonetheless, ATF has generally taken the
position that a receiver with a blocking bar will not be
deemed to be a machinegun. The following photograph
from Swift’s report shows where the holes were on Exhibit
12 for installing a blocking bar:
About a month after Exhibit 12 was seized, Swift tested
it at an ATF facility. Using parts from that facility, Swift
added the missing features needed to make Exhibit 12 an
operable weapon. He installed an automatic bolt, as well as
a machinegun top cover. Because the barrel that was on
Exhibit 12 when it was seized was fitted for .45 caliber
ammunition and Swift did not have a compatible bolt, Swift
removed that barrel and replaced it with a 9mm barrel. He
8 UNITED STATES V. KUZMA
also added a compatible magazine. His report included this
photograph of the pieces he added:
Swift tested the fully assembled weapon, and it fired
automatically. As shown in the photograph accompanying
Swift’s report, Exhibit 12 looked like this when it was fully
assembled (the arrow identifies the position of the device’s
selector switch, which was set for automatic operation):
UNITED STATES V. KUZMA 9
During and after the search, Kuzma made several
statements to ATF investigators. To facilitate the execution
of the search warrant at D&D, Agent Alexander Tisch used
a ruse to get Kuzma to meet him about a quarter-mile away
from the property. When Kuzma arrived, Tisch asked him
to sit in Tisch’s vehicle so that he could explain what was
going to happen. Tisch stated that the ATF agents would be
looking for machineguns, and Kuzma replied that they
would find one on a shelf in the garage. When Tisch asked
whether that device would function as a machinegun, Kuzma
responded, “Yes, it will.” Kuzma also admitted to Tisch that
he did not have the “special” firearms license that would
allow him to deal in machineguns. After this conversation,
Tisch left Kuzma to participate in the search, but he
subsequently went back to Kuzma to show him Exhibit 12
as well as another firearm that had been found. Kuzma
identified Exhibit 12 as the machinegun that he had referred
to earlier, and he stated that the other firearm was only a
semi-automatic. In distinguishing between the two
10 UNITED STATES V. KUZMA
weapons, Kuzma noted that Exhibit 12’s blocking bar had
been removed, but the other device still had one welded in.
The next day, Tisch again spoke with Kuzma, this time
by phone. Kuzma again stated that Exhibit 12 was a
machinegun, and he added that it had not had a blocking bar
for “[a]bout a month.” Tisch spoke again with Kuzma in
person on March 29, and Kuzma admitted that, although
Donald Tatom had asked him to get the sort of license that
would cover certain special types of firearms (such as
machineguns), Kuzma had “just forgot[ten]” to do that.
B
Kuzma was indicted on two counts based on his
possession of Exhibit 12 at D&D. Specifically, Kuzma was
charged with possession of a “machinegun” in violation of
18 U.S.C. § 922(o) and with possession of an unregistered
machinegun in violation of 26 U.S.C. § 5861(d).
In attempting to demonstrate at trial that Exhibit 12 was
a “machinegun” for purposes of § 922(o) and § 5861(d), the
Government relied principally on Tisch’s testimony
concerning Kuzma’s statements and the search, as well as on
Swift’s examination and testing of Exhibit 12. In trying to
show that Exhibit 12 was unregistered, the Government
relied on Tisch to describe the National Firearms
Registration and Transfer Record (“NFRTR”) created under
26 U.S.C. § 5841. Tisch explained that certain types of
firearms regulated under the National Firearms Act
(“NFA”), such as machineguns, must be registered in the
NFRTR. Tisch testified that he inquired as to whether
Exhibit 12 was registered to Kuzma in the NFRTR, and in
response he received a “Record Search Certificate” prepared
by another ATF employee, stating that there was no record
UNITED STATES V. KUZMA 11
that a device bearing Exhibit 12’s serial number was
registered to Kuzma.
Kuzma testified in his own defense at trial. He stated
that he knew that ATF considered Exhibit 12 to be a
machinegun due to the lack of a blocking bar, but he claimed
that in the initial interview with Agent Tisch, he had said that
Exhibit 12 was not a machinegun. On cross-examination,
however, Kuzma acknowledged that he “[a]pparently . . .
did” tell Tisch that Exhibit 12 was a machinegun, but he
stated that he “didn’t recall that until [he] read the transcript”
of that interview.
Kuzma further claimed that a September 23, 2005 letter
from ATF to Donald Tatom “exempt[ed] us from that”—i.e.,
ATF’s view that Uzi-type receivers without blocking bars
were machineguns—“until we sell these to the public.” That
letter explained that a particular “Uzi-type receiver
stamping” 3 submitted by D&D to ATF did not constitute a
“machinegun,” but the letter also warned that, if the
stamping was assembled into a “complete UZI receiver,” it
“must have a bolt blocking bar installed.” The letter
therefore cautioned D&D to advise its customers “that a bolt
blocking bar must be installed to prevent the possession of
an unregistered machinegun.” Kuzma asserted that, even
though Exhibit 12 was a complete Uzi-style receiver, it was
3
As Swift explained at trial, a receiver “stamping” consists of the
main “metal channel without the trunnion”—which he described as the
part at the front of the receiver “that holds the barrel in place”—and
without the “rear back plate.” It is called a “stamping,” because it
generally consists of a stamped piece of metal that is folded into shape
with holes cut out for other items to be added. See Stamping, WEBSTER’S
NEW INTERNATIONAL DICTIONARY (2d ed. 1934) (“Something stamped
out of another piece, as by machinery, or pressed or drawn into a definite
shape from a blank.”).
12 UNITED STATES V. KUZMA
equivalent to the stamping discussed in the September 2005
letter and therefore, under his reading of that letter, such a
device is “not a machine gun until it was sold to the public.”
Kuzma acknowledged that D&D was never licensed to
manufacture NFA firearms, a category that includes
machineguns. He and other witnesses at trial referred to the
necessary license as an “SOT,” after the Special
Occupational Tax that accompanies such licensing. He
claimed that he did not think that he needed such a license
for the “testing” that he was doing, which in his view did not
involve “manufacturing.” 4 In this regard, Kuzma insisted
that, when he told Timothy Sink, a D&D employee, to
remove the blocking bar from Exhibit 12, he did so only to
enable D&D to test bolts. Kuzma insisted that Exhibit 12
“was never intended for anything but shop testing.” Kuzma
testified that he told Sink to put the blocking bar back into
the receiver after the testing was completed, but Sink failed
to do so.
As to whether Exhibit 12 had been registered in the
NFRTR, Kuzma testified that he “didn’t register it because
it wasn’t a machine gun.”
Relying on the September 2005 letter, Kuzma requested
a jury instruction on the affirmative defense of entrapment
by estoppel. In a written pre-trial order, however, the district
court had concluded that there was insufficient evidence to
permit such a defense because the device discussed in that
4
Tisch testified that, during one of his interviews, Kuzma stated that
Tatom had “been telling him for two to three years to get an SOT,” but
that he “just never got around to it.” D&D’s office manager (Tammy
Loeffler) testified at trial that she had prepared the necessary
applications, but they “just hadn’t been mailed yet” at the time that the
search warrant was executed.
UNITED STATES V. KUZMA 13
letter was not the same as Exhibit 12. After the close of the
evidence at trial, the district court again reached the same
conclusion, and the court therefore denied the requested
instruction. 5
After less than two hours of deliberation, the jury
returned a verdict of guilty on both counts. Both before and
after the verdict, Kuzma moved for a judgment of acquittal
on the ground that, inter alia, there was insufficient evidence
that Exhibit 12 was a machinegun, but the district court
denied these motions.
At sentencing, Kuzma argued that he could only be
sentenced on one of the two counts because the § 922(o)
count was a lesser-included offense of the § 5861(d) count.
The district court rejected that argument and sentenced
Kuzma to concurrent sentences of three years’ probation on
both counts.
Kuzma timely appealed, and we have jurisdiction under
28 U.S.C. § 1291.
II
Kuzma’s primary contention on appeal is that one aspect
of the statutory definition of “machinegun” is
unconstitutionally vague and that, because both counts rest
on that same definition, his convictions must be reversed. 6
5
Kuzma does not challenge this ruling on appeal.
6
In the district court, Kuzma never squarely raised the contention
that the definition of machinegun was unconstitutionally vague, and
arguably we could deem the issue forfeited and therefore subject only to
plain error review. But the Government has not argued that Kuzma’s
vagueness challenge is forfeited, thereby itself forfeiting that objection.
14 UNITED STATES V. KUZMA
Alternatively, Kuzma argues that his convictions rest on an
erroneously expansive reading of the term “machinegun”
and that, under the correct definition, there is insufficient
evidence to show that Exhibit 12 was a machinegun. We
reject these contentions.
A
The Due Process Clause prohibits the Government from
“taking away someone’s life, liberty, or property under a
criminal law so vague that it fails to give ordinary people fair
notice of the conduct it punishes, or so standardless that it
invites arbitrary enforcement.” Johnson v. United States,
576 U.S. 591, 135 S. Ct. 2551, 2556 (2015). In assessing
whether a statute is impermissibly vague, “the touchstone is
whether the statute, either standing alone or as construed,
made it reasonably clear at the relevant time that the
defendant’s conduct was criminal.” United States v. Lanier,
520 U.S. 259, 267 (1997) (emphasis added). Because
analysis of the statutory text in light of the applicable canons
of construction may negate or eliminate the claimed
vagueness, we begin by considering the proper construction
of the challenged provision. See McDonnell v. United
States, 136 S. Ct. 2355, 2375 (2016) (statutory construction
of relevant terms may “avoid[] the vagueness concerns
raised” by a defendant).
See, e.g., United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1994)
(“This court will not address waiver if not raised by the opposing
party.”). Moreover, Kuzma’s arguments on this score overlap
significantly with his contentions below that ATF’s line-drawing in this
area was arbitrary and standardless. Accordingly, we will proceed to
consider this issue de novo, which both sides agree is the applicable
standard of review.
UNITED STATES V. KUZMA 15
1
For purposes of 18 U.S.C. § 922(o), which is the basis
for Kuzma’s first count of conviction, “[t]he term
‘machinegun’ has the meaning given such term in section
5845(b) of the National Firearms Act (26 U.S.C. 5845(b)).”
See 18 U.S.C. § 921(a)(23). Kuzma’s second count of
conviction rests on § 5861(d) of the NFA, which makes it
unlawful for a person “to receive or possess a firearm which
is not registered to him” in the NFRTR. See 26 U.S.C.
§ 5861(d). For purposes of the NFA, a “firearm” means only
certain particular categories of weapons, including “a
machinegun.” Id. § 5845(a)(6). The NFA’s definition of
“machinegun” in § 5845(b) therefore applies to both counts.
Section 5845(b), in turn, provides as follows:
The term “machinegun” means any weapon
which shoots, is designed to shoot, or can be
readily restored to shoot, automatically more
than one shot, without manual reloading, by
a single function of the trigger. The term
shall also include the frame or receiver of any
such weapon, any part designed and intended
solely and exclusively, or combination of
parts designed and intended, for use in
converting a weapon into a machinegun, and
any combination of parts from which a
machinegun can be assembled if such parts
are in the possession or under the control of a
person.
26 U.S.C. § 5845(b). The Government does not contend that
Exhibit 12, in the state in which it was found, is itself a
“weapon” that “shoots, is designed to shoot, or can be readily
restored to shoot” automatically. Id. Rather, both in the
16 UNITED STATES V. KUZMA
district court and in this court, the Government has placed
dispositive weight on the theory that Exhibit 12 is the “frame
or receiver” of such a weapon. In providing that the “frame
or receiver of any such weapon” is also a machinegun, the
second sentence of § 5845(b) clearly refers back to the
“weapon” described in the first sentence, i.e., “any weapon
which shoots, is designed to shoot, or can be readily restored
to shoot, automatically more than one shot, without manual
reloading, by a single function of the trigger.” Id. (emphasis
added); see also United States v. Wonschik, 353 F.3d 1192,
1197–98 (10th Cir. 2004). Exhibit 12 is thus a
“machinegun” under this definition if it is the “frame or
receiver” of a weapon that “shoots, is designed to shoot, or
can be readily restored to shoot” automatically. 7
Kuzma argues only that the second category—i.e., a
weapon that “is designed to shoot” automatically—is
unconstitutionally vague, and so that is the key phrase whose
meaning we must consider. Because “designed to shoot” is
not further defined by the statute, we give that phrase its
ordinary meaning. Johnson v. United States, 559 U.S. 133,
138 (2010). In addressing a vagueness challenge to a local
7
The remaining portions of the statutory definition are not relevant
here. The Government has not contended that Exhibit 12 qualifies as a
“machinegun” on the theory that it is a “part designed and intended
solely and exclusively . . . for use in converting a weapon into a
machinegun.” 26 U.S.C. § 5845(d) (emphasis added). At trial, the
Government’s examination of Swift did appear to suggest that Exhibit
12 could be deemed to be a machinegun on the theory that, together with
other items in the garage, it constituted a “combination of parts from
which a machinegun can be assembled,” id., but the Government has not
pressed this theory on appeal. Moreover, Swift’s unadorned assertion
that the D&D garage somewhere contained some unspecified parts that,
together with Exhibit 12, could be assembled into a machinegun is too
conclusory to provide sufficient evidence to sustain Kuzma’s conviction
on that basis.
UNITED STATES V. KUZMA 17
ordinance that regulated any item “designed . . . for use with
illegal cannabis or drugs,” the Supreme Court noted that a
“principal meaning of ‘design’ is ‘[t]o fashion according to
a plan.’” Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 491, 501 (1982) (quoting
Webster’s New International Dictionary 707 (2d ed. 1957))
(emphasis added). Given that primary meaning of
“designed,” the Court explained that “[i]t is therefore plain
that the standard encompasses at least an item that is
principally used with illegal drugs by virtue of its objective
features, i.e., features designed by the manufacturer.” Id.
at 501 (emphasis added); see also id. (“the phrase refers to
structural characteristics of an item”) (emphasis added). An
item’s “design” thus focuses on its objective “pattern or
configuration of elements.” See Design, Black’s Law
Dictionary (11th ed. 2019).
We therefore reject Kuzma’s contrary contention that, to
the extent “designed to shoot” has a discernible meaning, it
refers to the subjective “intent or purpose of the designer or
manufacturer” and therefore does not apply to a device that
the maker did not subjectively intend to be used to shoot.
Indeed, a different portion of the same “machinegun”
definition expressly covers “parts designed and intended[]
for use in converting a weapon into a machinegun.”
26 U.S.C. § 5845(b) (emphasis added). That the relevant
phrase here is “designed to shoot”—and not “designed and
intended to shoot”—supports our conclusion that this phrase
requires a purely objective examination of the design
features of the device and not an inquiry into the
manufacturer’s subjective intent. See Russello v. United
States, 464 U.S. 16, 23 (1983) (“‘[W]here Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
18 UNITED STATES V. KUZMA
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.’”) (citation omitted).
Although (as Kuzma notes) Hoffman Estates described
the term “designed” as referring “to the design of the
manufacturer,” 455 U.S. at 501 (emphasis added), the Court
made clear that the subjective intent of the manufacturer is
relevant only insofar as it is reflected in the “objective
features” of the product, id. Quoting from the brief of the
ordinance’s challengers, the Court noted that they had
essentially conceded as much: “if any intentional conduct is
implicated by the phrase, it is the intent of the ‘designer’ (i.e.
patent holder or manufacturer) whose intent for an item or
‘design’ is absorbed into the physical attributes, or
structural ‘design’ of the finished product.” Id. at 501 n.19
(emphasis added). Likewise, in United States v. Reed,
726 F.2d 570 (9th Cir. 1984), we addressed whether a device
was “designed . . . for use as a weapon”—and thus might
qualify as a “destructive device” under 26 U.S.C.
§ 5845(f)—by “look[ing] to the apparent purpose for which
the device was created” and considering whether it bore the
“traditional indicia of a weapon.” Id. at 576 (emphasis
added). 8
8
Kuzma’s reliance on United States v. Fredman, 833 F.2d 837 (9th
Cir. 1987), is unavailing. There, we addressed the separate portion of
§ 5845(f) that classifies as a destructive device “any combination of parts
either designed or intended for use in converting any device into a
destructive device.” 26 U.S.C. § 5845(f)(3) (emphasis added). We
concluded that, “absent proof of original design or redesign for use as a
weapon,” subjective “[i]ntent is a necessary element” and that the
defendant’s intent had “not been established.” 833 F.2d at 839 (emphasis
added). Fredman’s emphasis on the user’s subjective intent thus did not
rest on § 5845(f)(3)’s use of the word “designed” but rather on its use of
the word “intended.” The portion of the definition of “machinegun” at
UNITED STATES V. KUZMA 19
We note, however, that because the design of an item
turns on its apparent purpose as reflected in its particular
configuration of structural features, see Reed, 726 F.2d
at 576, a device remains “designed” for a particular use even
though, due to a readily fixable defect, the device cannot at
the moment be put to that use: a car with a dead battery is
still “designed” to be driven. See United States v. McCauley,
601 F.2d 336, 338, 341 (8th Cir. 1979) (construing
“designed to shoot . . . automatically” as including
defendant’s “type-96 machinegun” even though it “lacked
the magazine necessary for automatic firing,” given that the
trial evidence showed that such magazines could be
obtained). This construction of the phrase “weapon which
. . . is designed to shoot” also avoids rendering it wholly
redundant with the phrase “weapon which shoots.” See
Ratzlaf v. United States, 510 U.S. 135, 140–41 (1994).
However, for such a non-operational device to be “designed
to shoot . . . automatically,” it must be apparent from the
device’s specific arrangement of objective design features
that the device would ordinarily shoot automatically but for
some minor flaw that temporarily impedes that function. By
contrast, we agree with the Eighth Circuit in McCauley that
if the deficiency that impedes automatic operation is
significant and not readily repaired, then it cannot fairly be
said that the device is one that is “designed to shoot . . .
automatically.” See 601 F.2d at 341 (explaining that
“designed to shoot . . . automatically” does not include
“devices lacking ‘irreplaceable’ parts necessary to shoot
automatically” or “a device that no reasonable effort could
render capable of automatic fire”).
issue here, by contrast, uses only the word “designed” and not the word
“intended.” See supra at 17–18.
20 UNITED STATES V. KUZMA
We therefore conclude that a weapon is “designed to
shoot” automatically if it has a specific configuration of
objective structural features that, in the absence of any minor
defect, would give the weapon the capacity to shoot
automatically.
2
Having thus considered the proper construction of the
challenged statutory phrase, we have little difficulty
rejecting Kuzma’s contention that the phrase is
unconstitutionally vague on its face. 9 By focusing on
whether a device has a specific configuration of objective
features that, absent a minor defect, would give it the
capacity to shoot automatically, the phrase a “weapon which
. . . is designed to shoot . . . automatically” provides both
sufficient notice as to what is prohibited and sufficient
guidance to prevent against arbitrary enforcement. In
Hoffman Estates, the Supreme Court rejected a facial
vagueness challenge to a comparable phrase (“designed . . .
for use”) precisely on the ground that the phrase’s focus on
the “objective features” and “structural characteristics” of an
item was sufficient to provide fair warning for purposes of a
facial challenge. 455 U.S. at 501–02. The Court concluded
that, while that objective standard could give rise to
“ambiguities” as applied in some specific contexts, any such
residual issues were “of no concern in this facial challenge.”
Id. at 502. Applying similar reasoning here, we conclude
that the challenged phrase is not unconstitutionally vague on
its face. If anything, it is Kuzma’s reading of the statute that
9
We likewise reject Kuzma’s contention that § 5845(b) is vague as
applied to him. We address that issue separately below, together with
Kuzma’s challenge to the sufficiency of the evidence. See infra at 29–
32.
UNITED STATES V. KUZMA 21
would raise serious vagueness concerns: by focusing on the
manufacturer’s subjective intention in making a device,
Kuzma’s construction would make it difficult, if not
impossible, for subsequent possessors of the device to
determine whether it had been “designed to shoot”
automatically in that subjective sense. Cf. Flipside, Hoffman
Estates, Inc. v. Village of Hoffman Estates, 639 F.2d 373,
381 & n.18 (7th Cir. 1981) (addressing the subjective
reading of “designed . . . for use” that the Supreme Court
later rejected and observing that, “[i]f this were a criminal
ordinance, subjecting retailers and customers to prosecution
based solely on the design intent of a third party, the
manufacturer, there would be little question as to the law’s
invalidity”).
Kuzma relies on the Supreme Court’s recent decisions
facially invalidating several statutory provisions that relied
on impermissibly vague descriptions of predicate offenses,
but none of this caselaw warrants a different conclusion from
the one suggested by Hoffman Estates. In Johnson, for
example, the Court addressed the so-called “residual clause”
of the Armed Career Criminal Act, which defined as a
“violent felony” (which warrants enhanced punishment)
four enumerated felonies and any other felony that
“‘otherwise involves conduct that presents a serious
potential risk of physical injury to another.’” 135 S. Ct. at
2555–56 (quoting 18 U.S.C. § 924(e)(2)(B)). Under the
“categorical approach” that applied to evaluating which
predicate offenses qualified as “violent felon[ies]” under the
residual clause, a court was required “to picture the kind of
conduct that the [predicate] crime involves in ‘the ordinary
case’”—and not the conduct actually involved in the
defendant’s case—“and to judge whether that abstraction
presents a serious potential risk of physical injury.” Id.
at 2557 (emphasis added). That inquiry, the Court held, was
22 UNITED STATES V. KUZMA
too “indetermina[te]” to satisfy due process standards. Id.
In reaching that conclusion, the Court placed dispositive
weight on the fact that this inquiry involved application of
an “imprecise ‘serious potential risk’ standard” to a “judge-
imagined abstraction”—i.e., the “judicially imagined
‘ordinary case’ of a crime”—rather than to “real-world
facts.” Id. at 2557–78; see also United States v. Davis,
139 S. Ct. 2319, 2326–27 (2019) (applying comparable
reasoning to “residual clause” in 18 U.S.C. § 924(c)(3)(B));
Sessions v. Dimaya, 138 S. Ct. 1204, 1214–15 (2018)
(applying similar reasoning as to “residual clause” of
18 U.S.C. § 16(b)). Nothing comparable is involved here, in
which an objective standard about the actual features of a
device is to be applied to the real-world facts of the
defendant’s specific device. 10
Kuzma nonetheless argues that, as illustrated in the
testimony of the ATF expert at trial, ATF has taken a series
of internally contradictory and arbitrary positions
concerning which devices do and do not count as “designed
to shoot” automatically. This contention is ultimately
irrelevant to Kuzma’s facial challenge. Although
inconsistency in ATF’s position on the classification of a
particular device could perhaps be an indicator of an as-
applied vagueness problem, it has no bearing on the statute’s
underlying meaning or whether that meaning is
impermissibly vague on its face. This is not a situation in
which an agency has been delegated authority to promulgate
underlying regulatory prohibitions, which are then enforced
by a criminal statute prohibiting willful violations of those
regulations. See, e.g., 49 U.S.C. § 5124(a) (imposing
10
The facial invalidations in these three cases do, however, refute
the Government’s assertion that, outside the First Amendment context,
only as-applied vagueness challenges may be considered.
UNITED STATES V. KUZMA 23
criminal penalties on any “person . . . willfully or recklessly
violating . . . a regulation . . . issued under this chapter”). On
the contrary, the text of the applicable prohibitions and
definitions is set forth in statutory language. Because
“criminal laws are for courts, not for the Government, to
construe,” the Supreme Court has repeatedly rejected the
view “that ‘the Government’s reading of a criminal statute is
entitled to any deference.’” Abramski v. United States,
573 U.S. 169, 191 (2014) (quoting United States v. Apel,
571 U.S. 359, 369 (2014)). Thus, in Abramski, the Supreme
Court explained that it “put aside” ATF’s about-face in how
the agency construed the statutory provision at issue there by
pointedly observing: “We think ATF’s old position no more
relevant than its current one—which is to say, not relevant
at all.” Id. at 191.
Lastly, we reject Kuzma’s contention that the challenged
phrase (“designed to shoot . . . automatically”) is
impermissibly vague when combined with § 5845(b)’s
inclusion of “receiver[s]” in the definition of “machinegun.”
As explained earlier, the definition of “machinegun”
includes, not just a “weapon which shoots, [or] is designed
to shoot . . . automatically,” but also the “frame or receiver
of any such weapon.” 26 U.S.C. § 5845(b). Thus, a
defendant need not be shown to have possessed a fully
assembled machinegun, but may be shown to have possessed
just the frame or receiver of such a weapon. As Kuzma’s
counsel confirmed at oral argument, Kuzma has not raised a
vagueness challenge to the statute’s use of the term
“receiver,” and we perceive no basis for concluding that that
term, when combined with the phrase “designed to shoot . . .
automatically,” renders the resulting definition vague on its
face. Under the plain language of the statute, a device can
only be said to be the “frame or receiver” of a “weapon
which . . . is designed to shoot . . . automatically”—as
24 UNITED STATES V. KUZMA
opposed to the frame or receiver of a “weapon which . . . is
designed to shoot” simpliciter—if the receiver itself contains
a configuration of objective features that (when the
remainder of the firearm is added to the receiver) would give
the weapon the specific capacity to fire automatically. See
26 U.S.C. § 5845(b) (emphasis added). Consequently, a
receiver that is in all respects merely a common-denominator
subcomponent of either a semiautomatic weapon or an
automatic weapon cannot be said to be a receiver of a
“weapon which . . . is designed to shoot . . . automatically.”
Because the challenged phrase continues to rely on the
objective features of the device even when it is combined
with the phrase “frame or receiver,” it is not void for
vagueness in that context either.
* * *
We therefore reject Kuzma’s argument that the phrase
“weapon which . . . is designed to shoot . . . automatically”
in § 5845(b) is unconstitutionally vague on its face.
B
Kuzma also raises a variety of challenges concerning the
application of § 5845(b) in his particular case, but we
conclude that all of them are meritless.
1
As an initial matter, Kuzma challenges the particular
definition of “machinegun” that was used in the jury
instructions in this case—even though his own counsel was
the one who suggested adding the very language that Kuzma
now attacks as legally erroneous. Citing United States v.
Guthrie, 931 F.2d 564, 567 (9th Cir. 1991), the Government
argues that, as a result, review of this issue is barred by the
UNITED STATES V. KUZMA 25
invited-error doctrine. But in United States v. Perez,
116 F.3d 840 (9th Cir. 1997) (en banc), this court
distinguished Guthrie and held that an error “induced or
caused” by the defendant remains subject to plain error
review unless, in inviting the error, “the defendant
intentionally relinquished or abandoned a known right.” Id.
at 845. The parties dispute whether the record reflects such
a relinquishment here, but we need not resolve this issue.
Even applying plain error review, we find no basis for
reversal on account of this instruction.
The jury instructions in this case defined “machinegun”
by repeating verbatim the entire text of the definition
contained in § 5845(b). The instructions, however, also
contained some additional language, including the following
portion that Kuzma belatedly challenges on appeal:
The “designed” definition includes weapons
which have not previously functioned as
machineguns but possess specific
machinegun design features which facilitate
automatic fire by simple alteration or
elimination of existing component parts.
Kuzma contends that this definition was erroneous because,
in his view, the statute requires a focus on the manufacturer’s
subjective intention in creating the device. We have already
rejected that contention, and so there was no plain error in
the instruction’s objective focus on “specific machinegun
design features which facilitate automatic fire.”
26 UNITED STATES V. KUZMA
We likewise find no plain error here in the instruction’s
reference to features that facilitate automatic fire “by simple
alteration or elimination of existing component parts.” On
the one hand, this phrase arguably could be read to go
beyond the statute’s reach by literally including devices that
can acquire an automatic capacity, not already reflected in
their existing design, “by simple alteration or elimination of
existing component parts.” On the other hand, the latter
phrase could perhaps be narrowly construed as referring
merely to the correction of minor flaws or defects that may
prevent a particular device from functioning in accord with
its existing objectively apparent design, which would be
consistent with the statute. We need not resolve this issue
because, even assuming that this aspect of the instruction
was erroneous, it did not affect Kuzma’s substantial rights.
See United States v. Olano, 507 U.S. 725, 734–35 (1993).
As we explain below, on the facts of this case, any automatic
capacity that inhered in the objective design of Exhibit 12
already existed at the time Kuzma possessed it. See infra
at 27–29. There is thus no reasonable possibility that the
jury here relied on an impermissibly expansive reading of
this instruction in convicting Kuzma.
2
Applying the correct definition of “machinegun,” we
conclude that Kuzma had fair notice that Exhibit 12 qualified
as such a device based on its configuration of objective
features. We therefore reject his as-applied vagueness
challenge, as well as his contention that the evidence was
insufficient to sustain his convictions.
UNITED STATES V. KUZMA 27
a
Because it is not a complete weapon that, by itself, was
designed to shoot, Exhibit 12 qualifies as a “machinegun”
only if it is the “frame or receiver” of a weapon that “shoots,
[or] is designed to shoot . . . automatically.” 11 26 U.S.C.
§ 5845(b). As we have explained, Congress’s directive that
the “frame or receiver” of a “machinegun” also qualifies as
a “machinegun” unmistakably confirms that the statute
reaches the core subcomponent of an automatic weapon,
even if that device by itself cannot shoot at all. But to count
as the relevant core of a machinegun (as opposed to some
other firearm), a frame or receiver must itself contain a
configuration of objective design features that facilitate
automatic fire, as demonstrated by the fact that, when the
remaining missing features of a complete firearm are added
to the receiver, the resulting weapon shoots, or is designed
to shoot, automatically. See supra at 16–20. Under this
standard, Exhibit 12 was plainly a machinegun.
Kuzma does not contest that Exhibit 12 had enough of
the core features of a firearm to qualify as a “frame or
receiver.” And because Exhibit 12 had its blocking bar
removed, its objective design features facilitated automatic
firing, as shown by the fact that, when Swift added the few
remaining features needed to complete an operational
firearm (namely, a bolt and top cover), Exhibit 12 fired
automatically. See supra at 6–8. This conclusion is not
altered by the fact that, in adding the remaining features,
11
Because Exhibit 12 had not previously been part of a complete
automatic weapon, it was concededly not the “frame or receiver” of a
“weapon which . . . [could] be readily restored to shoot[] automatically.”
26 U.S.C. § 5845(b) (emphasis added). And as explained earlier, none
of the other clauses of § 5845(b)’s definition applied to Exhibit 12. See
supra note 7.
28 UNITED STATES V. KUZMA
Swift swapped out the existing barrel for a different one that
matched one of the bolts he had available. A barrel is not
itself part of a receiver, and so the swap cannot have altered
the design of the receiver. In any event, such an even swap
of features does not materially alter the functionality of the
resulting operable firearm and has no bearing on whether it
does or does not qualify as a machinegun. Moreover, Kuzma
himself admitted in his statements to Tisch that he knew that
the features of Exhibit 12 were such that, when the
remaining missing pieces to create an operable firearm were
installed on Exhibit 12, the device would shoot
automatically. Cf. Staples v. United States, 511 U.S. 600,
619 (1994) (holding that the Government must show that the
defendant knew the device had the characteristics that
brought it within the scope of the NFA); United States v.
Rogers, 94 F.3d 1519, 1523 (11th Cir. 1996) (same as to
§ 922(o)), cert. dismissed, 522 U.S. 252 (1998). The trial
evidence was thus sufficient to show that, at the time Kuzma
possessed it, Exhibit 12 had the objective features necessary
to establish that it was the “frame or receiver” of a “weapon
which shoots, [or] is designed to shoot . . . automatically.”
UNITED STATES V. KUZMA 29
26 U.S.C. § 5845(b). 12 It therefore was a “machinegun”
within the plain language of § 5845(b). 13
b
Kuzma nonetheless contends that the statute is vague as
applied to him, because ATF issued contradictory guidance
concerning receivers just like Exhibit 12, thereby confirming
that the statute’s coverage of such devices was fatally
unclear even to ATF. The trial evidence showed that ATF
had indeed sent two inconsistent letters to D&D concerning
whether a certain receiver stamping qualified as a
12
At oral argument, Kuzma suggested that, in the context of an
operational firearm that is assembled from a receiver, the receiver alone,
in its earlier state, can be said to have been the receiver of a weapon
which will shoot automatically, but not of one which “shoots . . .
automatically.” 26 U.S.C. § 5845(b) (emphasis added); cf. 18 U.S.C.
§ 921(a)(3) (defining “firearm” as, inter alia, “any weapon . . . which
will or is designed to or may readily be converted to expel a projectile”)
(emphasis added). We doubt that the use of the present tense rather than
the future tense in § 5845(b) makes any difference, see, e.g., 1 U.S.C. § 1
(“unless the context indicates otherwise[,] . . . words used in the present
tense include the future as well as the present”) (emphasis added), but
the point is ultimately irrelevant. Exhibit 12 would clearly remain
covered under § 5845(b) as the “frame or receiver” of a “weapon which
. . . is designed to shoot . . . automatically.”
13
We reject Kuzma’s contention that the district court erred in
permitting Swift to offer his opinion that Exhibit 12 was a machinegun
as defined by § 5845(b). Because Kuzma failed to raise this objection in
the district court, we review only for plain error, see Olano, 507 U.S.
at 730 (citing FED. R. CRIM. P. 52(b)), and we find none. See United
States v. Bishop, 926 F.3d 621, 632–33 (10th Cir. 2019) (finding no plain
error in allowing expert to testify that device was a machinegun when
expert “adequately explained the basis for his opinion”); see generally
United States v. Diaz, 876 F.3d 1194, 1197–99 (9th Cir. 2017) (finding
no error when expert was asked questions “adopt[ing] the language of
the elements”).
30 UNITED STATES V. KUZMA
“machinegun,” but nothing in this evidence concerning the
classification of that qualitatively different device bespeaks
ambiguity as to the statute’s coverage of Exhibit 12.
Only the second letter was received into evidence at trial,
and it stated that ATF’s prior letter to D&D had contained
“an erroneous determination regarding the classification of
your previously submitted UZI-type receiver stamping.”
Specifically, the letter stated that “[o]ur original
classification of this item as a machinegun was not
accurate.” As the letter explained, the item ATF examined
consisted of the folded metal receiver stamping, which had
“various holes and slots, but no additional parts installed.”
The letter concluded that this receiver stamping, “as
examined, does not possess the design features of an UZI-
type machinegun receiver that facilitate automatic fire by
simple modification of existing parts.” However, the letter
warned that, if this receiver stamping is “assembled into a
complete UZI receiver by the installation of a back plate,
barrel trunnion, and other receiver components, [it] must
have a bolt blocking bar installed” and, “[i]f not, it will be
considered a machinegun receiver.” While the letter might
suggest some subjective confusion on ATF’s part as to
exactly how to classify stampings that lack almost any other
parts, 14 that does not somehow create uncertainty as to how
14
For example, the letter could be read as taking the view that the
folded stamping was too barebones to count as a “receiver,” although
that reading is hard to square with the letter’s simultaneous insistence
that the stamping was a “firearm.” (The stamping could not possibly fit
the definition of a “firearm” in 18 U.S.C. § 921(a)(3) unless it was a
“receiver.”) Alternatively, the letter could perhaps be read to suggest
that, by itself, the stamping was too much of a least-common-
denominator device to count as a machinegun receiver. Cf. supra at 23–
24. But as Kuzma notes, at trial Swift appeared at one point to suggest
that a folded receiver stamping with no additional parts was a
UNITED STATES V. KUZMA 31
the statutory language objectively applies to Exhibit 12,
which was not a mere stamping. On the contrary, because
Exhibit 12 was a “complete UZI receiver” with “a back
plate, barrel trunnion, and other receiver components,” the
letter’s reasoning would likewise classify Exhibit 12 as “a
machinegun receiver.” The letter thus does nothing to
suggest that the statute’s application to Exhibit 12 creates an
as-applied vagueness issue.
Kuzma argues that the statute is still vague as applied
here because in his view ATF improperly attaches talismanic
significance to the presence or absence of a blocking bar.
But in assessing Kuzma’s as-applied vagueness challenge,
we need not address whether Swift correctly answered all of
Kuzma’s counsel’s various hypotheticals as to which other
devices with which other components would or would not
count as machinegun receivers. In an as-applied challenge,
the only question is whether the statute “‘is impermissibly
vague in the circumstances of this case.’” United States v.
Purdy, 264 F.3d 809, 811 (9th Cir. 2001) (citation omitted).
Even if Kuzma is correct in contending that design features
other than blocking bars may sufficiently impede automatic
operation so as to prevent a receiver from being classified as
a machinegun receiver, that would not create any basis for
finding § 5845(b) vague as applied here. As Swift
explained, Exhibit 12 did not have any such alternative
design features “that could have prevented it from
functioning as a machine gun.” Indeed, had Exhibit 12
possessed such features, it would not have fired
machinegun receiver, thus seemingly contradicting ATF’s own about-
face on that issue. Because it ultimately has no impact on the result in
this case, we express no view as to which (if any) of these conflicting
views about receiver stampings is correct.
32 UNITED STATES V. KUZMA
automatically when Swift tested the fully assembled
weapon.
“Because the controlling standard of conduct is
reasonably clear and [Kuzma] clearly violated that standard,
we hold that [§ 5845(b)] is not unconstitutionally vague as
applied to [Kuzma].” United States v. Agront, 773 F.3d 192,
199 (9th Cir. 2014).
III
Kuzma also raises several challenges that apply only to
his conviction for possession of an unregistered firearm
under 26 U.S.C. § 5861(d), but none of these points warrants
reversal.
Prior to trial, Kuzma repeatedly sought to obtain
information from the Government concerning the reliability
of the recordkeeping in the NFRTR, but the district court
declined to order such discovery. Kuzma renewed his
objection to those prior rulings at trial when the Government
sought to introduce a “Record Search Certificate” from ATF
employee Jon Coleman stating that, “after [a] diligent
search” of the NFRTR, Coleman “found no evidence” that a
firearm bearing Exhibit 12’s serial number was registered to
Kuzma. Moreover, in doing so, Kuzma’s counsel also
specifically objected to the admission of that certificate,
explaining that “it’s not an accurate regist[er], the federal
regist[er], and I don’t have an opportunity to cross examine
the person that’s introducing it as to the accuracy of the
federal regist[er].” Kuzma renews these points on appeal,
arguing that discovery should have been ordered and that the
introduction of the no-record certificate over his objection
violated his rights under the Confrontation Clause.
UNITED STATES V. KUZMA 33
Even if the district court erred in either or both of these
respects, any error would be harmless. Kuzma expressly
admitted at trial that he had not registered Exhibit 12, and he
made the same admission in his earlier statements to Tisch.
Whether the Government’s registration records were
adequate to show the absence of this concededly non-
existent registration would thus not have altered the
outcome. United States v. Larson, 495 F.3d 1094, 1107–08
(9th Cir. 2007) (en banc) (holding that Confrontation Clause
error was harmless beyond a reasonable doubt in light of
other testimony in the record).
Kuzma further argues, however, that § 5861(d) required
the Government to prove that both Kuzma and D&D failed
to register Exhibit 12. This contention appears doubtful,
given that the plain text of the statute requires a registration
that extends to each person who receives or possesses such
a firearm: “It shall be unlawful for any person . . . to receive
or possess a firearm which is not registered to him in the
[NFRTR].” 26 U.S.C. § 5861(d) (emphasis added). But we
need not resolve this issue, because the undisputed testimony
at trial confirmed that Exhibit 12 was not registered to D&D
either. As Tisch explained, Kuzma admitted that D&D did
not have the requisite license for a machinegun, which (as
noted earlier) the witnesses referred to at trial as an “SOT.”
See supra at 12. 15 Tisch further stated that Kuzma had told
15
There are very limited circumstances in which a manufacturer can
lawfully produce machineguns and register them. See 18 U.S.C.
§ 922(o)(2) (exempting, inter alia, possession “under the authority of[]
the United States” or a state or local government); 27 C.F.R.
§ 479.105(c) (“The registration of such machine guns under this part and
their subsequent transfer shall be conditioned upon and restricted to the
sale or distribution of such weapons for the official use of Federal, State
or local government entities.”). Any such manufacturer (among others)
is subject to the “special (occupational) tax.” 26 U.S.C. § 5801(a).
34 UNITED STATES V. KUZMA
him D&D’s owner had been urging Kuzma “for two to three
years to get an SOT,” but to no avail. In his trial testimony,
Kuzma confirmed that he had asked Tammy Loeffler to
prepare the authorization paperwork “about a week before”
the search. In turn, Loeffler admitted on cross-examination
that she had never “obtained an SOT” on D&D’s behalf, and
she claimed that she had prepared the paperwork but failed
to mail it out. Accordingly, any error concerning whether
the Government had to prove that Exhibit 12 was registered
to D&D was harmless. See Neder v. United States, 527 U.S.
1, 17–20 (1999). 16
IV
Finally, Kuzma contends that, even if his § 922(o) and
§ 5861(d) convictions are free from reversible error when
considered separately, the two convictions are multiplicitous
and cannot coexist simultaneously. We agree.
Under the aspect of the Double Jeopardy Clause that
protects against multiple punishments, “‘cumulative
sentences are not permitted’” for two statutes that proscribe
the same offense, “‘unless elsewhere specially authorized by
Congress.’” Missouri v. Hunter, 459 U.S. 359, 367 (1983)
(quoting Whalen v. United States, 445 U.S. 684, 693 (1980))
(emphasis omitted); see also United States v. Schales,
546 F.3d 965, 977 (9th Cir. 2008). The test for determining
whether two statutes define the same offense is the familiar
“Blockburger test,” which asks “‘whether each provision
requires proof of a fact which the other does not.’” Id.
16
To the extent that we have concluded that certain potential errors
were either harmless or not plain error, see supra at 32–34, we further
conclude that the cumulative effect of any such potential errors is also
harmless. United States v. Fernandez, 388 F.3d 1199, 1256–57 (9th Cir.
2004).
UNITED STATES V. KUZMA 35
(quoting Blockburger v. United States, 284 U.S. 299, 304
(1932)). Here, the Government concedes that § 922(o) does
not require proof of any element that is not also required
under § 5861(d). The former statute requires possession of
an item that qualifies as a machinegun with knowledge of
the essential characteristics that make that item a
machinegun, see 18 U.S.C. §§ 922(o), 924(a)(2), and the
latter statute requires all of those same elements (plus an
additional element concerning the lack of registration), see
26 U.S.C. §§ 5845(a)(6), 5845(b), 5861(d), 5871. The
§ 922(o) charge is therefore a lesser-included offense of the
§ 5861(d) charge. The Government further concedes that
neither statute (nor any other provision of law) indicates that
Congress authorized cumulative punishments to be imposed
simultaneously under both provisions. Because “[o]ne of the
convictions, as well as its concurrent sentence, is
unauthorized punishment,” one of them must be vacated.
Ball v. United States, 470 U.S. 856, 864 (1985). Given that
the ultimate “sentencing responsibility resides” with the
district court, the “only remedy consistent with
congressional intent” is for that court “to exercise its
discretion to vacate one of the underlying convictions.” Id.;
see also Schales, 546 F.3d at 980.
Accordingly, we remand the case to the district court
with instructions to vacate one, and only one, of Kuzma’s
two convictions. We otherwise affirm the convictions and
judgment in all other respects.
AFFIRMED IN PART AND REMANDED.