United States v. Ombey Mobley , 956 F.2d 450 ( 1992 )

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellant, Ombey Mobley, pleaded guilty to violating 18 U.S.C. § 922(g)(1), possession of a firearm by a convicted felon, and received a two level enhancement under United States Sentencing Commission, Guidelines Manual, § 2K2.1(b)(2) (Nov. 1990), because his gun was stolen. He challenges the Guidelines’ enhancement on several statutory and constitutional grounds, with the unifying argument being that the government must show he knew the gun was stolen to enhance his sentence. We will affirm the judgment of sentence.

I.

The facts are simple. Mobley and several friends were driving northward on Interstate 95 in Delaware when they were stopped for speeding. After a Delaware State Police Officer stopped the car and got consent to search it, he did so. He found ammunition on the front seat and $6,000 in cash in the pocket of one of Mobley’s friends. Searching further, the officer found a handgun under Mobley’s seat. He arrested Mobley.

Mobley admitted he and another passenger bought the gun for $160 in Columbia, South Carolina, from a drug dealer named “Keith”. He admitted that the gun was operable, that he knew it was in the car, and said he bought it “to protect us.” The gun was stolen though there was no objective evidence that Mobley knew it.

Mobley had a criminal record for drug and firearm offenses. He pleaded guilty to possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1). Section 922(g)(1) provides: “It shall be unlawful for any person — who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport any firearm or ammunition in interstate or foreign commerce.”

At sentencing the district court found Mobley’s criminal history category to be IV. It applied U.S.S.G. § 2K2.1, “Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition,” and found his base offense level to be 12. The court subtracted 2 levels for affirmative acceptance of responsibility, under § 3E1.1, and added 2 levels for possessing a stolen gun, under § 2K2.1(b)(2). The Guidelines yielded a range of 21 to 27 months, and the court sentenced Mobley to 27 months of incarceration followed by three years of supervised release.

Section 2K2.1(b)(2) provides: “If the firearm was stolen or had an altered or obliterated serial number, increase by 2 levels.” The district court did not find that Mobley knew or had reason to know the gun was stolen. Instead it simply applied the enhancement “because the gun was stolen.” Mobley challenges this enhancement. He argues principles of statutory construction mandate that we read § 2K2.1(b)(2) to include a scienter element. He further argues that without this scienter requirement, the enhancement violates the Due Process Clause of the Fifth Amendment because it amounts to a new strict liability statute, punishing him without a finding of culpability. We have plenary review of issues of law raised by the application of the Guidelines. United States v. Williams, 917 F.2d 112, 113 (3d Cir.1990).

II.

Whether U.S.S.G. § 2K2.1(b)(2) should be read to imply a scienter requirement is new before this court. Four other courts of appeals have addressed a similar issue. They have concluded that the enhancement is plain on its face and have refused to imply a scienter element. United States v. Singleton, 946 F.2d 23 (5th Cir.1991); United States v. Taylor, 937 F.2d 676 (D.C.Cir.1991); United States v. Peoples, 904 F.2d 23 (9th Cir.1990) (per curiam); United States v. Anderson, 886 F.2d 215 (8th Cir.1989) (per curiam). We agree.

Mobley invokes three well established principles of statutory construction that he thinks compel us to infer a knowledge requirement from § 2K2.1(b)(2). They are the rule of lenity, the presumption against strict liability in criminal law, and the principle that requires a statute to be read as a whole and in harmony with others.

The rule of lenity succinctly is: Where there is ambiguity in a criminal statute, doubts are resolved in favor of defendant. United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971). The rule applies to criminal prohibitions, as well as the penalties. Bifulco v. United States, 447 U.S. 381, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980). For the rule to apply, the statute must contain an ambiguity. 100 S.Ct. at 2252. Where, however, the statute is clear, the rule may not be used to contravene its plain meaning.

We construe terms of the Guidelines according to their plain meaning. United States v. Gonzalez, 918 F.2d 1129, 1139 (3d Cir.1990). Here § 2K2.1(b)(2) unambiguously provides that “[i]f the firearm was stolen” the sentence shall be increased. The requisite ambiguity is absent.

As the Court of Appeals for the District of Columbia Circuit noted, an earlier Guidelines version, § lB1.3(a)(4), provided that “specific offense characteristics ... shall be determined on the basis of ... the defendant’s state of mind, intent, motive and purpose in committing the offense.” See Taylor, 937 F.2d at 682. The Sentencing Commission amended this section and omitted the blanket scienter requirement. Section lB1.3(a)(4) now directs courts to consider the “information specified in the applicable guideline.” Here the applicable guideline is § 2K2.1(b)(2); it contains no scienter element.

The Commission recently amended § 2K2.1 and § 2K2.2. The earlier version of § 2K2.1(b)(1) read “if the firearm was stolen or had an altered or obliterated serial number, increase by 1 level.” The Commission renumbered and amended this section to increase the level to 2. U.S.S.G. § 2K2.1(b)(2). And the earlier versions of § 2K2.2(b)(l) and § 2K2.3(b)(2)(c) read respectively “If the firearm was stolen or had an altered or obliterated serial number, increase by 1” and “If the defendant knew or had reason to believe that a firearm was stolen or had an altered or obliterated serial number, increase by 1.” (Emphasis added). The Commission consolidated these sections into new § 2K2.2(b)(2), which now reads “If the firearm was stolen or had an altered or obliterated serial number, increase by 2 levels.” In amending these sections, the Commission also added new § 2K2.3, “Receiving, Transporting, Shipping or Transferring a Firearm or Ammunition With Intent to Commit Another Offense, or With Knowledge that It Will be Used in Committing Another Crime.” The Commission intended this section to “address transfer of a weapon with intent or knowledge that it will be used to commit another offense.” U.S.S.G., App. C, at C. 97 (emphasis added).

The Commission has been deliberate when it included a scienter element as other sections confirm. See, e.g., U.S.S.G. § 2K1.3(b)(2) (enhancement when “offense involved explosives that the defendant knew or had reason to believe were stolen”); U.S.S.G. § 3C1.1 (enhancement when “defendant wilfully obstructed or impeded, or attempted to impede, the administration of justice”). It is a fundamental canon of statutory construction that where sections of a statute do not include a specific term used elsewhere in the statute, the drafters did not wish such a requirement to apply.

Section 2K2.1(b)(2) is clear and unequivocal. We refuse to find ambiguity where none exists to defeat the plain meaning of the Guidelines. See Bifulco, 100 S.Ct. at 2252. Because “the touchstone of the rule of lenity is statutory ambiguity,” 100 S.Ct. at 2252, the rule does not apply to § 2K2.1(b)(2).

Mobley would also have us invoke the presumption against strict liability in criminal law. He argues that a distinction in sentences based solely on the stolen status of the gun is arbitrary and capricious without evidence of scienter. This distinction, he argues, serves none of the purposes of sentencing — retribution, general deterrence, specific deterrence, and rehabilitation — so that § 2K2.1(b)(2) is in discord with the purpose of the Guidelines.

These statutory arguments cannot stand given that the Commission has intentionally imposed strict liability for § 2K2.1(b)(2). Furthermore, § 2K2.1(b)(2) is not in discord with the purposes of the Guidelines because the Guidelines are essentially offense-based and, as such, philosophically justified by a retributivist and, to a lesser extent, a deterrence theory of penology. Mobley’s contentions fail, for the enhancement is rationally related to both theories and functions as a regulatory component in Congress’ scheme to control gun trade. See United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971).

In Freed the defendant was indicted for possessing unregistered hand grenades under 26 U.S.C. § 5861(d) (1964), which makes it illegal for any person “to receive or possess a firearm which is not registered to him.” The trial court dismissed the indictment because the statute provided no scien-ter element. The Supreme Court held that the statute required no specific intent because it was “a regulatory measure in the interest of the public safety, which may well be premised on the theory that one would hardly be surprised to learn that possession of hand grenades is not an innocent act.” 91 S.Ct. at 1118. Because § 2K2.1(b)(2) also regulates activities affecting public health, safety, and welfare, it requires no scienter element. See United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943) (statute regulating adulterated or misbranded drugs); United States v. Engler, 806 F.2d 425 (3d Cir.1986) (statute regulating selling of wildlife).

Mobley argues he is neither more culpable nor more dangerous to society with a stolen gun. He overlooks the larger problem. Mobley pleaded guilty to violating 18 U.S.C. § 922(g). Section 922(g) is part of the Gun Control Act of 1968, Pub.L. 90-618, 82 Stat. 1213, amending the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. 90-351, 82 Stat. 197. It is not just a statute criminalizing possession of a firearm by convicted felons; it is part of a comprehensive scheme to regulate the movement of firearms. Barrett v. United States, 423 U.S. 212, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976) (“the Act clearly appl[ies] to and regulate[s] [] sales of a gun”). In Barrett the Supreme Court articulated the purpose behind § 922(g):

The very structure of the Gun Control Act demonstrates that Congress did not intend merely to restrict interstate sales but sought broadly to keep firearms away from persons Congress classified as potentially irresponsible and dangerous [convicted felons]. These persons are comprehensively barred by the Act from acquiring firearms by any means. Thus, § 922(d) prohibits a licensee from knowingly selling or otherwise disposing of any firearm ... to the same categories of potentially irresponsible persons ....

Similarly, § 922(g) prohibits the same categories of potentially irresponsible persons from shipping or transporting any firearm in interstate commerce or, see 18 U.S.C. § 2(b), causing it to be shipped interstate.

96 S.Ct. at 502. Thus § 922(g) has a regulatory role.

Moreover, the penalty it imposes, including U.S.S.G. § 2K2.1(b)(2), advances this role. Altered firearms, for example sawed-off shotguns, “have few legitimate uses,” U.S.S.G. § 2K2.1, commentary, and have most probably been altered to conceal or magnify their deadly potential. Also the trade in guns is monitored for a reason. Registration and verification procedures are imposed largely to combat crime. It is no secret that a chain of custody for a firearm greatly assists in the difficult process of solving crimes. When a firearm is stolen, determining this chain is difficult and when serial numbers are obliterated, it is virtually impossible. Therefore, stolen or altered firearms in the hands of people recognized as irresponsible pose great dangers, and the guideline here reflects this heightened danger.

An examination of 18 U.S.C. § 922(g), § 922(0, § 922© and U.S.S.G. § 2K2.1(b)(2) shows how Congress and the Commission regulate the trade in stolen or altered firearms. Together § 922© and § 922© provide that any person who “transports]” or “receivefs] ... any stolen firearm or stolen ammunition, knowing or having reasonable cause to believe” it stolen is culpable. In these sections Congress recognized the inherent evil in stolen guns and sought to regulate them. Section 922(g) targets a specific class of individuals — convicted felons. It provides that they shall not possess any firearm, regardless of the status of the firearm. So, for instance, if a convicted felon went into a sporting store, bought a shotgun to hunt, and signed all the necessary registration and verification forms, he would still be culpable. And if he obtained such a weapon from a drug dealer in some back street, it is reasonable that he would be more culpable.¹

Congress promulgated 18 U.S.C. § 922(g) on the premise that convicted felons have a greater propensity to commit crimes using firearms. It therefore categorically sought to remove firearms from their hands. The Commission promulgated U.S.S.G. § 2K2.1(b)(2) on the premise that “stolen firearms are used disproportionately in the commission of crimes.” U.S.S.G. § 2K2.1(b)(2), commentary. It therefore sought to enhance the sentences of those convicted felons who violate § 922(g) by possessing a stolen gun. The Commission has done nothing more than add two and two.

Thus § 2K2.1(b)(2) advances the overall regulatory scheme. Without empirical evidence, it is safe to say that stolen or pirated guns move in the back alleys and among clandestine meetings of the criminal world. Indeed Mobley admitted that he got his gun from a drug dealer named “Keith” in Columbia, South Carolina. A handgun is the consummate anti-personnel weapon. It is designed to be used against people. It defies reason to believe that there was anything benign in a convicted felon carrying a stolen handgun. Section 2K2.1(b)(2) regulates by punishing and potentially deterring such irregular and pernicious transactions; it rests “on the theory that one would hardly be surprised to learn that possession of [a gun bought from a drug dealer] is not an innocent act,” see Freed, 91 S.Ct. at 1118. We need not apply the presumption against strict liability.

III.

Mobley contends that without a scienter requirement U.S.S.G. § 2K2.1(b)(2) violates the Due Process Clause of the Fifth Amendment. He argues that the enhancement creates a new statute that punishes him for conduct of which he has not been found guilty. And because the new statute lacks a scienter element, he argues that it eviscerates his due process right “to assure the accurate presentation of information regarding whether he had knowledge or reason to believe that the gun was stolen.” Br. 21.

Mobley indulges in nothing more than constitutional wishful thinking. He musters no support by way of reason or precedent. Supreme Court precedent weighs against his argument; no Court of Appeals has adopted his argument; and in fact the Court of Appeals for the Fifth Circuit has flatly rejected it.

Mobley confuses the fundamental distinction between conviction and sentencing. Moreover he confuses the distinction among a sentence, a sentence enhancement, and the definition of a crime. In our bifurcated criminal justice process, at the trial stage the accused receives the full panoply of constitutional rights. So for example, the government must prove “beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368 (1970). At the sentencing stage, however, a convicted criminal is entitled to less process than a presumptively innocent accused. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 2419 n. 8, 91 L.Ed.2d 67 (1986). “[Sjentencing courts have always operated without constitutionally imposed burdens of proof” when considering the appropriate sentence. 106 S.Ct. at 2419 n. 8. See U.S.S.G. § 6A1.3 (court may consider all relevant information, for example specific offense characteristics, that has “sufficient indicia of reliability to support its probable accuracy”). And once convicted, a defendant has a liberty interest in the correct application of the Guidelines within statutory limits, nothing more and nothing less. United States v. Restrepo, 946 F.2d 654, 659 (9th Cir.1991) (en banc).

In McMillan the Supreme Court held constitutional Pennsylvania’s Mandatory Minimum Sentencing Act, 42 Pa. Const. Stat. § 9712 (1982). This statute subjects anyone convicted of certain enumerated felonies to a mandatory minimum sentence of five years if the court finds by a preponderance of evidence that the person “visibly possessed a firearm” during the commission of the offense. It, however, did not alter the statutory maximum penalties for the enumerated felonies. 106 S.Ct. at 2417. The Court concluded: “While visible possession might well have been included as an element of the enumerated offenses, Pennsylvania chose not to redefine those offenses in order to so include it, and Patterson teaches that we should hesitate to conclude that due process bars the State from pursuing its chosen course in the area of defining crimes and prescribing penalties.” 106 S.Ct. at 2416 (referring to Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977)). Thus a state may properly treat “visible possession of a firearm” as a sentencing factor that “comes into play only after the defendant has been found guilty of [the crime] beyond a reasonable doubt.” 106 S.Ct. at 2416 (emphasis added).

Although McMillan decided the constitutionality of state rather than federal law, there is no principled reason why the same due process analysis would not apply in defining federal criminal offenses and penalties. See United States v. Lee, 818 F.2d 1052, 1057 (2d Cir.1987) (adopting McMillan’s preponderance of evidence standard for federal sentences); United States v. Wilson, 900 F.2d 1350, 1353 (9th Cir.1990) (same).

Before the Guidelines, a sentencing court had broad discretion whether to consider any and all information about a defendant’s background or conduct. The Guidelines limit this discretion and give certain sentencing factors a predetermined effect. The Guidelines, however, do not differ analytically from the Pennsylvania statute in McMillan for the purpose of this due process scrutiny. In McMillan the Pennsylvania legislature “simply took one factor that has always been considered by sentencing courts to bear on punishment — the instrumentality used in committing a violent felony — and dictated the precise weight to be given that factor if the instrumentality is a firearm.” 106 S.Ct. at 2418. Here the Guidelines simply take one factor that has traditionally been considered by sentencing courts to bear on punishment— the status of the firearm — and dictate the precise weight to be given that factor if the firearm is stolen. U.S.S.G. § 2K2.1(b)(2), commentary (“reviews of actual [pre-Guide-lines] cases suggest that this is a factor that tends to result in more severe sentences”).

Moreover the guideline here is not arbitrary; it bears a rational relationship to the defendant’s culpability. The Commission decided that possessing a stolen gun is a greater evil than possessing one legally purchased. Indeed, the inherent dangers associated with a convicted felon purchasing and owning a gun “makes it reasonable to impute knowledge to the defendant that his conduct was subject to legal restriction.” United States v. Burke, 888 F.2d 862, 866 (D.C.Cir.1989). One, especially a convicted felon, is thus expected to exercise caution in the purchase of firearms and to inquire as to the gun’s origin. One can check easily whether or not a gun has been stolen, and the failure to do so reasonably may add to the purchaser’s punishment. The government need not prove that the purchaser possessed actual knowledge of the gun’s stolen status to generate the inference for the purpose of sentencing that a buyer of a stolen gun is more culpable than the buyer of a legitimate one. The “backstreet” buyer who contributes financially to a thief’s enterprise purchases under conditions which reasonably should alert him to check the gun’s legitimacy. We fail to see the constitutional infirmity in discouraging illegal traffic in guns by enhancing the sentence of a convicted felon for possessing a stolen gun. See McMillan, 106 S.Ct. at 2419 (“Sentencing courts necessarily consider the circumstances of an offense in selecting the appropriate punishment, and we have consistently approved sentencing schemes that mandate consideration of facts related to the crime_”) (citing Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976)).

The McMillan Court set forth a due process standard for sentencing factors: the enhancement factor must not (1) alter the maximum penalty available for the crime committed, or (2) negate the presumption of innocence or relieve the prosecution’s burden of proving guilt, or (3) create a separate offense calling for a separate penalty. 106 S.Ct. at 2417. Section 2K2.1(b)(2) satisfies this standard.

First, the enhancement does not alter the maximum sentence that Mobley could have received for violating § 922(g). 18 U.S.C. § 924(a)(2) (whoever violates § 922(g) shall be imprisoned not more than 10 years). See Restrepo, 946 F.2d at 657 n. 4 (the McMillan Court’s “reasons for focusing on the statutory maximum as a fixed limit that must not be violated during sentencing do not change even in the context of the Guidelines, where sentence is largely predetermined by the sentencing factor”); United States v. Rodriguez-Gonzalez, 899 F.2d 177, 181 (2d Cir.1990) (same); United States v. Martinez, 924 F.2d 209, 211 (11th Cir.1991) (same).

Second, § 2K2.1(b)(2) also does not negate the presumption of innocence or alter the prosecutor’s burden of proof at the conviction stage. Had Mobley not pleaded guilty to violating § 922(g), the prosecution would have had to prove each and every element of that offense beyond a reasonable doubt. McMillan, 106 S.Ct. at 2417 (“Nor does [the Pennsylvania statute] relieve the prosecution of its burden of proving guilt; [it] only becomes applicable after a defendant has been duly convicted of the crime for which he is to be punished.”).

Finally, § 2K2.1(b)(2) does not create a separate offense calling for a separate penalty. In McMillan the Court concluded that because the Pennsylvania statute does not alter the statutory maximum sentence it operates solely to limit the sentencing court’s discretion in selecting a penalty within the available range. 106 S.Ct. at 2417. It thus “ups the ante” for the defendant by raising the minimum sentence that may be imposed within the statutory plan. 106 S.Ct. at 2417. The Court, however, left open the possibility that a sentence enhancement could be improper if it came to be “a tail which wags the dog of the substantive offense”: that is, have such a disproportionate impact on the sentence so that it is “really” an element of the offense for which defendant is being punished. 106 S.Ct. at 2419.

That § 2K2.1(b)(2)’s conduct requirement constitutes an element of a separate offense, 18 U.S.C. §§ 922(i) or (j), does not mean that Mobley is being sentenced for a crime for which he was not convicted. This argument misses the point. Mobley was not charged under §§ 922(i) or (j); he was charged under § 922(g). He was not sentenced for violating §§ 922(i) or (j); he was sentenced for violating § 922(g). Section 2K2.1(b)(2) did not sentence or enhance his sentence for violating §§ 922(i) or (j); it enhanced his sentence for violating § 922(g). The argument “misperceives the distinction between a sentence and a sentence enhancement.” United States v. Mocciola, 891 F.2d 13, 17 (1st Cir.1989) (holding that enhancing a sentence under U.S.S.G. § 2Dl.l(b)(l) for weapons possession was not double jeopardy even though defendant was charged and acquitted for weapons possession under 18 U.S.C. § 924(c)(1)).

In Martinez the Court of Appeals for the Eleventh Circuit addressed similar arguments. 924 F.2d at 210-11. There the appellant was found guilty of conspiracy to import drugs. The sentencing court imposed a two level enhancement under § 2D1.1(b)(1) because it found that firearms were involved. Section 2D1.1(b)(1) provides: “If a dangerous weapon (including a firearm) was possessed during the commission of the offense, increase by 2 levels.” The appellant contended that to increase his sentence for weapons possession, he must be charged and convicted under 18 U.S.C. § 924(c)(1). Section 924(c)(1) provides: “Whoever, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking be sentenced to imprisonment for five years.” He further contended that his due process rights were violated because he did not know his co-conspirator possessed a firearm and because he was not given notice of the firearm enhancement in the indictment nor was he accorded a jury trial on that issue. The court disagreed. It stated, “Although both the separate sentence under § 924(c) and the sentence enhancement under U.S.S.G. § 2D1.1(b)(1) result in an increased penalty, only a conviction and sentence under § 924(c) requires the full panoply of constitutional safeguards ordinarily granted criminal defendants.” 924 F.2d at 211. It reasoned that because the Guidelines did not alter the maximum sentence for the offense for which the appellant was convicted but merely limited the sentencing court’s discretion in selecting a penalty within the permissible range, the government was entitled to treat the firearm possession as a sentencing consideration rather than as an element of a particular offense. 924 F.2d at 211 (citing McMillan).

Essentially Mobley focuses on the similarity between U.S.S.G. § 2K2.1(b)(2) and 18 U.S.C. §§ 922(i), 922(j), contending that he received the same penalty with the application of the enhancement that he would have received had he been charged, convicted, and sentenced for violating § 922(i) or § 922(j). But this observation says nothing about whether his due process was violated. All it means is that under certain circumstance Congress and the Commission have set the same penalties. This is not the situation of a tail wagging the dog; but rather, of two dogs having tails of equal length. This distinction may be academic to the defendant who must serve the sentence, but it is analytically crucial for the due process scrutiny, for only if the prosecution charged Mobley with violating § 922(i) or § 922(j) must it prove that he knew the gun was stolen. See Rodriguez-Gonzalez, 899 F.2d at 181. The prosecution, however, did not charge Mobley under § 922(i) or § 922(j), but instead opted to charge him under § 922(g). At sentencing the district court enhanced his sentence for violating § 922(g).

Mobley seeks to blur the distinction among a sentence, sentence enhancement, and definition of an offense. If he was correct, anytime specific offense characteristics of a sentence enhancement satisfy some element of a separate offense, many applications of the Guidelines would be constitutionally in doubt. For example, pursuant to U.S.S.G. § lB1.3(a), courts must generally consider all “all acts and omissions” that compose “relevant conduct.” These acts or omissions could in many cases satisfy elements of other offenses and constitute grounds for more charges.² Moreover, courts have used the conduct underlying an offense in which defendant was acquitted to enhance a sentence.³ Yet, courts have found these practices constitutional and have rejected subjecting these considerations to the reasonable doubt standard applicable to the offenses.⁴ Thus we see no reason why we should treat, as Mobley would have, § 2K2.1(b)(2) as a separate offense and sentence, rather than the sentence enhancement that it is, simply because its conduct satisfies elements of 18 U.S.C. § 922(i) or § 922(j). See McMillan, 106 S.Ct. at 2415 (legislature’s definition of the elements of the crime and sentencing factors are “usually dispositive”).

By this conclusion we do not suggest that Congress or the Commission have free reign to fashion sentences and offenses so as to circumvent the Due Process Clause. The McMillan Court clearly envisioned limits. 106 S.Ct. at 2416 (“in certain limited circumstances Winship’s reasonable-doubt requirement applies to facts not formally identified as elements of the offense charged”). See United States v. Kikumura, 918 F.2d 1084, 1119-21 (3d Cir.1990) (Rosenn, J., concurring). But the Court refused to set forth a “bright line” test, opting instead to simply say that the constitutionality of statutes will “depend on differences of degree.” 106 S.Ct. at 2419. While not defining a bright line test, the Court gave one example: Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967).

In Specht a Colorado statute exposed a defendant convicted of a sexual offense otherwise carrying a maximum penalty of ten years to an indefinite term to and including life imprisonment if the sentencing court made a post-conviction finding that the defendant posed “a threat of bodily harm to members of the public, or is an habitual offender and mentally ill.” 87 S.Ct. at 1211. The Court held that this statute violated due process.

Recently, in Kikumura we had occasion to consider McMillan while reviewing an upward departure from the Guidelines. In Kikumura the district court departed upward over one thousand percent from the Guidelines sentence range. We said Kiku-mura “is perhaps the most dramatic example imaginable of a sentencing hearing that functions as ‘a tail which wags the dog of the substantive offense.’ ” 918 F.2d at 1101. The departure prompted Judge Ro-senn in concurrence to write: “[Bjecause of the extreme departure involved here for the separate offense of attempted murder, it seems evident that the Government and the sentencing judge did not consider Kiku-mura’s attempt to kill as collateral but primary.” 918 F.2d at 1120 (emphasis added and in original). Accord Restrepo, 946 F.2d at 660 (due process is violated when enhancement leads to “extremely disproportionate effects” or “drastically affect the length of the sentence”). Because of the ten-fold departure, we held that the clear and convincing evidence standard should apply to sentencing considerations when justifying an extreme departure. 918 F.2d at 1102.

Here the district court determined the Guideline range to be 21 to 27 months. It then sentenced Mobley to 27 months. Had the enhancement not been applied the range would have been 15 to 21 months. Assuming that the district court would have again applied the maximum sentence in the range, we note that the enhancement increased Mobley’s sentence by only 6 months.

In Specht the sentencing enhancement could have increased a sentence from ten years to life imprisonment, and in Kikumu-ra the upward departure increased a sentence of about 30 months to 30 years. A six month increase is hardly the stuff of due process violation that the McMillan Court had in mind in its canine metaphor. The guideline here does not disproportionately affect the sentence relative to the offense so that its specific offense characteristics constitute the primary conduct for which Mobley is being punished. See McMillan, 106 S.Ct. at 2417.

The Court of Appeals for the Fifth Circuit is the only other court of appeals to have considered the precise issue before us. See Singleton, 946 F.2d at 26-27. It rejected a due process challenge to U.S.S.G. § 2K2.1(b)(l).⁵ It concluded, as we do, that the Constitution permits increased sentences for defendants who possess stolen guns regardless of whether they knew the gun was stolen. It held that there was no due process violation, reasoning that § 2K2.1(b)(1) does not create a crime where one otherwise would not exist. Rather it is a sentencing factor courts properly considered before the Guidelines and that courts now apply under the Guidelines. We see no sound reason why we should not follow this reasoning here.

IV.

In sum, we hold that U.S.S.G. § 2K2.1(b)(2) does not have an implied scienter element. We further hold that the enhancement does not violate the Due Process Clause of the Fifth Amendment. We will affirm the judgment of sentence.

1 . The Guidelines confirm what is intuitive. If the convicted felon possesses a firearm his base offense level is 12. U.S.S.G. § 2K2.1(a)(2). But if he "obtained or possessed the firearm or ammunition solely for lawful sporting purposes or collection," his base offense level is decreased by 6. U.S.S.G. § 2K2.1(b)(l).

2 . See United States v. Blanco, 888 F.2d 907 (1st Cir.1989) (considering quantities of uncharged drugs); United States v. Guerrero, 863 F.2d 245 (2d Cir.1988) (same); United States v. Williams, 917 F.2d 112 (3d Cir.1990) (same); United States v. Williams, 880 F.2d 804 (4th Cir.1989) (same); United States v. Taplette, 872 F.2d 101 (5th Cir.1989) (same); United States v. Ykema, 887 F.2d 697 (6th Cir.1989) (same); United States v. White, 888 F.2d 490 (7th Cir.1989) (same); United States v. Payne, 940 F.2d 286, 293 (8th Cir.1991) (same); United States v. Restrepo, 903 F.2d 648 (9th Cir.1990) (same) (reversing 883 F.2d 781 (1989)), modified 946 F.2d 654 (1991); United States v. Frederick, 897 F.2d 490 (10th Cir.1990) (same); United States v. Bennett, 928 F.2d 1548 (11th Cir.1991) (same).

See also United States v. Cianscewski, 894 F.2d 74 (3d Cir.1990) (considering stolen checks sold by defendant’s wife for which she was acquitted and he was not charged); United States v. Scroggins, 880 F.2d 1204 (11th Cir.1989) (considering defendant’s 18 postal thefts to which defendant did not plead guilty and for which government agreed to drop charges); United States v. Frierson, 945 F.2d 650 (3d Cir.1991) (considering defendant’s gun possession though defendant only pleaded guilty to unarmed bank robbery with the government dismissing the armed bank robbery count).

3 . See United States v. Ryan, 866 F.2d 604, 609 (3d Cir.1989); United States v. Isom, 886 F.2d 736, 738 & n. 2 (4th Cir.1989); United States v. Juarez-Ortega, 866 F.2d 747, 749 (5th Cir.1989) (per curiam); Mocciola, 891 F.2d at 17; Rodriguez-Gonzalez, 899 F.2d at 181; United States v. Rivera-Lopez, 928 F.2d 372, 373 (11th Cir.1991) (per curiam).

4 . See, e.g., United States v. Fox, 889 F.2d 357, 363 (1st Cir.1989); United States v. Reynolds, 900 F.2d 1000, 1003-04 (7th Cir.1990); Payne, 940 F.2d at 286; Restrepo, 903 F.2d at 653; United States v. Frederick, 897 F.2d 490, 492-93 (10th Cir.1990); Bennett, 928 F.2d at 1558.

5 . The court decided the constitutionality of old § 2K2.1(b)(l), which has been amended and renumbered as § 2K2.1(b)(2). The only difference between the two is the level of enhancement.