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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-14184 ________________________
D.C. Docket No. 3:17-cr-00240-HES-JBT-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BERNANDINO GAWALA BOLATETE,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(September 29, 2020)
Before BRANCH, LUCK, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
At 70 years old and in failing health, Bernandino Bolatete decided that his
last act on this Earth would be one of hatred and violence. He made plans to climb Case: 18-14184 Date Filed: 09/29/2020 Page: 2 of 31
to the top of a tower at a mosque in Florida and shoot innocent Muslims. He had
an arsenal of rifles to carry out the attack and knew how to use them. Fortunately,
someone overheard Bolatete talking about his plans and reported him to law
enforcement. An undercover detective gained Bolatete’s trust, confirmed that he
planned to attack the mosque, and then sold him an unregistered firearm silencer.
Because possessing an unregistered silencer is a federal crime, Bolatete was
arrested, convicted, and sentenced to prison where he is today.
The district court rejected Bolatete’s constitutional challenge to the statute
making it a crime to receive or possess an unregistered firearm silencer. The court
sentenced him to 60 months in prison. This is his appeal of his conviction and
sentence.
I. BACKGROUND
A. Facts
In late 2017, the Jacksonville Sheriff’s Office received a tip that Bolatete
was planning to commit a mass shooting at a local mosque. The person who
provided the tip said that Bolatete had just been given some “bad news” about the
condition of his one remaining kidney and would have to start dialysis soon. She
reported that Bolatete was going to time the mass murder for when he otherwise
would have had to start dialysis; apparently, he did not plan on surviving his crime.
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A Sheriff’s Office detective with a long resumé of undercover work was
assigned to investigate. The detective’s plan was to take on an undercover persona
as a Muslim-hating gun enthusiast named “Drew” and gain Bolatete’s trust so he
could find out if he was serious about killing Muslims at the mosque. The
detective introduced himself as Drew at the liquor store where Bolatete worked,
and the two of them bonded over their “shared” hatred of Muslims and love of
guns.
Less than two weeks after the detective and Bolatete met, they went to a
shooting range together. The detective drove Bolatete to the range in a car that had
been wired to covertly record video and sound. Their route took them by the
mosque that Bolatete had planned to attack, and as they drove by, the detective
made a comment about the mosque. That passing comment was all it took to get
Bolatete to start sharing his violent plans.
Bolatete pointed out a tower near the mosque and said that was where he
was “planning to stay” after his kidney doctor told him it was time to start dialysis.
By “stay,” he meant that he would go up the tower and start “shooting those
Muslims” until the police killed him. Bolatete said that he wanted to “try a
Christian doing [a] terroristic . . . act this time . . . to the Muslims,” because
Muslims were “doing it all the time.” The detective asked Bolatete: “You[’re] just
going to climb up in the tower and — ” Bolatete answered that yes, he was just
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going to “go up to the tower and start shooting.” He laughed and asked his new
friend: “[I]t will be great, right?”
Even though Bolatete was laughing, his plan was no joke. He explained that
he had already gone onto the mosque property to scope out the tower and make
sure he could get in it. He had learned that the best day to carry out the attack
would be a Friday, when Muslims attend religious services. And he had an arsenal
of five rifles, including an AR-15 assault rifle, that he could use to carry out the
attack. He told the detective that his next kidney appointment was less than a
month away. Time was running out.
Over the next ten days, the detective and Bolatete exchanged text messages
and spent more time together, and Bolatete twice steered their conversation toward
firearm silencers.1 The first time he mentioned silencers was while the detective
was driving him home from a second trip to the shooting range together. The two
men were talking about the availability of automatic weapons in the United States
compared to the Philippines, where Bolatete was born, when Bolatete said,
unprompted: “You can even, uh, get the suppressors there.” The detective had
never mentioned suppressors or silencers (which are the same thing) when Bolatete
brought up the subject.
1 For purposes of the federal statute, a silencer is “any device for silencing, muffling, or diminishing the report of a portable firearm.” 18 U.S.C. § 921(a)(24); see 26 U.S.C. § 5845(a)(7). 4 Case: 18-14184 Date Filed: 09/29/2020 Page: 5 of 31
The second time Bolatete brought up silencers was at the liquor store when
the detective visited him on November 20. As part of his undercover story, the
detective told Bolatete that he and his boss had done some electrical work for a
Muslim client who had refused to pay them, costing his boss $30,000. Bolatete
responded that the “only thing to do is, uh, shoot him somewhere.” He recounted
that there had been “one asshole like that in, um, in the Philippines,” and he had
settled their differences by shooting the man with a .22 caliber pistol equipped with
a silencer. Bolatete suggested that the detective and his boss could do something
similar to deal with their problem client. He advised that they should “study [the
client’s] movements” and “hit” him in a rough part of town. He also recommended
taking the client’s wallet after the hit so that it looked like a robbery gone wrong.
Because Bolatete had mentioned silencers twice, the detective decided to
gauge his interest in buying one. The next time they went to the shooting range, on
November 24, the detective brought a rifle that had a silencer attached. His story
was that he had borrowed the rifle and silencer from a friend who was in financial
trouble and needed to sell all of his guns. He told Bolatete that his friend was
selling the rifle for $300 or $400.
After they shot the rifle together, Bolatete told the detective that $300 would
be a good price, especially if it included the silencer. The detective offered to buy
the silencer from his friend and sell it to Bolatete. Bolatete did not say anything in
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response to that offer but he nodded and, according to the detective, appeared
interested. Bolatete also commented that the silencer was not very silent, that it
was much louder than the one that he had on his .22 caliber pistol in the
Philippines, and he added that it was louder than it should have been even
considering the bigger powder load of a rifle round. His appraisal was not all
criticism, though. He did offer his view that the silencer was attached to the rifle
very well. Bolatete knew a thing or two about silencers.
During the drive home, Bolatete called a friend of his — another gun
enthusiast — and spoke with him in a language that the detective couldn’t
understand. Then he told the detective that according to his friend, $300 for the
rifle was a “giveaway price” and if the silencer were included it would be even
better. But, Bolatete noted, there was no need for the silencer because they were
not going hunting (where a silencer would be useful to avoid scaring off the
animals). He also warned the detective that the police were “very hot” on
silencers.
During the same drive, the detective offered to help Bolatete with the
mosque shooting. That offer, it seems, went too far. Bolatete immediately
downplayed the seriousness of his plan, saying that it was just “wishful thinking.”
He refused the detective’s offer of assistance, explaining that the reason he was
turning him down was that the detective was healthy, young, and had a child.
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Bolatete then started talking about his own family. He said that his eldest son, who
had cerebral palsy, had always wanted to see this country, and he wanted to bring
him to the United States and let him see it “before I [unintelligible].” 2
After arriving at Bolatete’s house, the two men talked outside the car.
Bolatete said that the detective could use the silencer on the troublesome Muslim
client who had refused to pay for his electrical work. When the detective
suggested that Bolatete could use the silencer at the mosque, Bolatete said there
was “[n]o need for a suppressor there” and that he “[didn’t] need the suppressor.”
They parted ways without a goodbye, which made the detective think that Bolatete
no longer trusted him.
The detective feared that he had offered too much help too fast and had
blown his cover as a result. Frustrated, he called his supervisor. He told him that
Bolatete had “no desire to own a silencer,” and that the timeline for the mosque
attack had changed because Bolatete wanted to bring his son to the United States
first. The detective commented that the only angle they had left was to start
sending Bolatete more anti-Muslim rhetoric by text message, “since he says he
doesn’t need a silencer or a rifle or anything like that.”
2 The word following “before I” is not audible on the recording. The detective testified that Bolatete told him he wanted to bring his son to the United States “before it happen[s],” and he reported to his supervisor that Bolatete said he wanted to bring his son here “before anything happens.” The detective understood Bolatete to have been talking about bringing his son to this country before he committed the attack at the mosque. 7 Case: 18-14184 Date Filed: 09/29/2020 Page: 8 of 31
The detective gave up on selling Bolatete a silencer, but he kept up contact
with Bolatete, hoping to learn more about his plans for mass murder. Over the
next few days, Bolatete texted the detective twice asking whether he had bought
the rifle from his friend. The detective said that his friend was asking $300 for the
rifle or $400 for the rifle and silencer, and he was looking into the licensing rules
for the silencer.
On November 27 the detective visited Bolatete again at the liquor store. He
didn’t plan to mention the silencer. And he didn’t have to because Bolatete
brought it up, asking the detective if there was “[a]ny solution” yet to the problem
of the Muslim client who hadn’t paid his bill. When the detective said there
wasn’t, Bolatete suggested: “[Y]ou can use the silencer for that guy.” Then
Bolatete asked about the rifle. The detective said that he was still researching the
registration and licensing rules for the silencer.
Bolatete volunteered: “If I were you, don’t register the suppressor.” That
was the first time either of them had mentioned an unregistered silencer. Bolatete
warned that if the detective registered the silencer, the police would be able to
search his house without a warrant at any time to inspect the silencer. Then he
asked whether the detective’s friend had any more silencers to sell because he was
interested in buying one, but only if it was unregistered.
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The detective said that his friend had four or five more silencers and would
not care if they went unregistered because he needed the money. Bolatete
reiterated that he “[did not] want to have any record about it.” He told the
detective that when he arrived in the United States, he had started looking for a
silencer right away because he had owned one in the Philippines. He found one for
sale at a gun store but was told that he needed a special license to buy it, and one
condition of the license was that the police could search his house at any time.
That condition was not one Bolatete was willing to agree to.
After that meeting, the detective and Bolatete continued to send text
messages back and forth about the unregistered silencer. In one particularly long
text message, Bolatete said that he was thinking about putting the silencer on a gun
he owned that was also unregistered because “it will be difficult to trace just in
case.” He suggested that the right time to “hit” the (fictional) Muslim client would
be around the Fourth of July or New Year’s because the sound of the suppressed
gunshots would “easily blend with the sound of the fireworks.” Bolatete warned
the detective not to be seen arguing with the client so that the detective wouldn’t be
a “person of interest” after the “hit.” “Better still,” Bolatete said, the detective and
his boss could just run “surveillance” on the client to figure out what places he
frequented. Then the detective could point out the client so Bolatete could “take
him for you guys.” At the end of the text message, Bolatete asked the detective to
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delete it “so that it can’t be found in your [cell phone] just in case investigators will
try to ‘connect’ us.”
The detective met Bolatete on December 1 in the parking lot of a sporting
goods store to sell him the unregistered silencer. After the detective put the
silencer in Bolatete’s car, Bolatete paid him $100, and the two men went inside the
store to shop for ammunition. When they left the store, they were met by a swarm
of police officers who arrested Bolatete and pretended to arrest the detective.
B. Procedural History
Bolatete was indicted in December 2017 on one count of receiving and
possessing an unregistered firearm silencer in violation of 26 U.S.C. § 5861(d) and
§ 5871. He filed a motion to dismiss the indictment, contending that the National
Firearms Act exceeds Congress’ power to tax and therefore violates the Tenth
Amendment both facially and as applied. The district court denied his motion
because his contention was foreclosed by clear circuit precedent. The case
proceeded to trial, and the jury found Bolatete guilty after deliberating for less than
an hour and a half.
Bolatete’s Presentence Investigation Report stated that he was a 70-year-old
lawful permanent resident of the United States who immigrated here from the
Philippines in 2009. The PSR noted that he suffers from high cholesterol,
rheumatoid arthritis, diabetes, macular edema, and hypertension. It calculated a
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base offense level of 18 under U.S.S.G. § 2K2.1(a)(5), and it applied a four-level
enhancement under § 2K2.1(b)(6)(B) because Bolatete possessed the silencer with
knowledge, intent, or reason to believe that it would be used or possessed in
connection with another felony offense. The other felony offense was the planned
assault or murder of the detective’s fictional Muslim client. With an adjusted
offense level of 22 and a criminal history score of zero, Bolatete’s guidelines range
was 41 to 51 months in prison.
Bolatete objected to the 4-level enhancement under § 2K2.1(b)(6)(B), and he
and the government filed sentencing memoranda. The government asked the court
to depart or vary upward from the guidelines range to the statutory maximum of
ten years in prison because Bolatete had planned to carry out a mass shooting at a
mosque, had confessed to committing an act of gun violence in the Philippines, had
encouraged the detective to shoot a fictional Muslim client over a business dispute,
and had later offered to shoot the client himself. Bolatete pointed to his age and
poor health in requesting a downward variance to 9 months imprisonment to be
followed by his uncontested removal from the United States.
At sentencing the district court overruled Bolatete’s objection to the 4-level
§ 2K2.1(b)(6)(B) enhancement, finding that the government had proved by a
preponderance of the evidence that Bolatete intended to use the silencer to assault
or kill the detective’s fictional Muslim client. The court varied upward to a
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sentence of 60 months in prison in order to further the goals of deterrence and
protecting the public. And the court made clear that it would have imposed the
same 60-month prison sentence even if it had not applied the 4-level sentence
enhancement under § 2K2.1(b)(6)(B).
II. DISCUSSION
Bolatete raises six issues. He contends that: 1) the National Firearms Act,
26 U.S.C. ch. 53, is unconstitutional because it exceeds Congress’ power to tax and
therefore violates the Tenth Amendment; 2) if the Act is a tax, it is unconstitutional
because it taxes the exercise of Second Amendment rights; 3) the Act violates the
Second Amendment, the protections of which extend to silencers; 4) the evidence
at trial was insufficient to support the jury’s finding that he was not entrapped; 5)
the district court erred by imposing a 4-level sentence enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B); and 6) his 60-month sentence is substantively unreasonable.
A. The Taxing Power Issue
Bolatete’s first contention is that the National Firearms Act in general, and
26 U.S.C. § 5861(d) in particular, are unconstitutional both facially and as applied
because they exceed Congress’ power to tax. “In our federal system, the National
Government possesses only limited powers; the States and the people retain the
remainder.” Bond v. United States, 572 U.S. 844, 854 (2014). Congress does not
have a general police power that would allow it to “punish felonies generally.” Id.
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(quotation marks omitted). Instead, every criminal penalty that Congress enacts
must be grounded in one of its enumerated powers, such as the power to regulate
interstate commerce or the power to lay and collect taxes. Id.; see U.S. Const. Art.
I, § 8.
The National Firearms Act, and the criminal penalty for violating it, are
grounded in Congress’ power to tax. See United States v. Spoerke, 568 F.3d 1236,
1245 (11th Cir. 2009). The Act creates a comprehensive taxation and registration
scheme for certain statutorily defined “firearm[s],” which include silencers. See
26 U.S.C. § 5845(a). One part of the Act requires that any person who transfers a
firearm to someone else must pay a $200 transfer tax and must register the firearm
to the transferee. See 26 U.S.C. §§ 5811(a), 5841.3 It is the transferor, not the
transferee, who is obligated to pay the tax and to register the firearm. See id.
§§ 5811(b), 5841(b).4 Section 5861(d), the section that Bolatete was convicted of
3 The transfer tax is only $5 for firearms classified as “any other weapon” under 26 U.S.C. § 5845(e). 26 U.S.C. § 5811(a). A silencer does not fit the definition of “any other weapon,” so the $5 rate is irrelevant to Bolatete’s as-applied challenge. See 26 U.S.C. § 5845(e). 4 A prospective transferor registers the silencer and pays the tax by filing an application with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) before transferring the firearm. See 26 U.S.C. § 5812(a); 27 C.F.R. §§ 479.11, 479.84. The transfer tax is payable through the purchase of a designated tax stamp. 26 U.S.C. §§ 5811(c), 5812(a). The Act says that the $200 tax stamp must be “affixed to the original application form,” id. § 5812(a), but in practice, the applicant sends the $200 payment to the ATF along with his application and the ATF affixes the tax stamp after the application is approved. See 27 C.F.R. § 479.84(d); Application for Tax Paid Transfer and Registration of Firearm, Bureau of Alcohol, Tobacco, Firearms, and Explosives, https://www.atf.gov/firearms/docs/form/form-4-application-tax-paid- transfer-and-registration-firearm-atf-form-53204/download (last visited Sept. 16, 2020). A copy of the approved application form is then returned to the transferor and must be given, along with the firearm, to the transferee. 27 C.F.R. § 479.84(d); Application for Tax Paid Transfer and 13 Case: 18-14184 Date Filed: 09/29/2020 Page: 14 of 31
violating, prohibits any person from “receiv[ing] or possess[ing] a firearm which is
not registered to him.” The maximum penalty for violating any provision of the
Act, including § 5861(d), is ten years in prison and a $10,000 fine. Id. § 5871.
According to Bolatete, the National Firearms Act is not a tax but instead a
public safety measure thinly disguised as a tax. See United States v. Freed, 401
U.S. 601, 603, 609 (1971) (describing the Act as “a regulatory measure in the
interest of the public safety”). Bolatete concedes that a law does not stop being a
valid tax measure just because it also serves some other goal besides raising
revenue. “[E]very tax is regulatory to some extent.” United States v. Ross, 458
F.2d 1144, 1145 (5th Cir. 1972)5; see Nat’l Fed’n of Indep. Bus. v. Sebelius
(NFIB), 567 U.S. 519, 567 (2012) (“[T]axes that seek to influence conduct are
nothing new.”). In deciding whether a law is a valid tax measure we take a
“practical” approach that does not depend on how the law is labeled. See NFIB,
567 U.S. at 565. We consider “whether on its face the tax operates as a revenue
generating measure and the attendant regulations are in aid of a revenue purpose.”
Ross, 458 F.2d at 1145. Bolatete contends that the tax does not operate as a
Registration of Firearm, supra. It provides the transferee with proof that the firearm was properly registered and the transfer tax was paid. A person who possesses a firearm must “retain proof of registration which shall be made available to any ATF officer upon request.” 27 C.F.R. § 479.101(e); accord 26 U.S.C. § 5841(e). 5 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit issued before October 1, 1981. 14 Case: 18-14184 Date Filed: 09/29/2020 Page: 15 of 31
revenue generating measure and the attendant regulations are not in aid of a
revenue purpose.
He argues that § 5861(d), which is one of the Act’s “attendant regulations,”
see Ross, 458 F.2d at 1145, does not aid any revenue-raising purpose because it
punishes the recipient of an unregistered firearm even though the recipient has no
obligation or opportunity to pay the transfer tax. He also argues that the Act does
not “look[ ] like a tax,” NFIB, 567 U.S. at 563, or operate like one on its face
because: the Department of Justice enforces the Act, not the Department of the
Treasury or the Internal Revenue Service; the criminal penalties for violating the
Act are disproportionately severe for a tax; and the $200 transfer fee has no
connection to raising revenue. Bolatete says that the Act exceeds Congress’ power
to tax and for that reason violates the Tenth Amendment. 6
Generally, we review a district court’s denial of a motion to dismiss the
indictment only for abuse of discretion. United States v. Palomino Garcia, 606
F.3d 1317, 1322 (11th Cir. 2010). “When a defendant challenges the
constitutionality of a statute, however, the review is de novo.” United States v.
Ibarguen-Mosquera, 634 F.3d 1370, 1377 n.3 (11th Cir. 2011).
6 The Tenth Amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. Amend. X. 15 Case: 18-14184 Date Filed: 09/29/2020 Page: 16 of 31
Bolatete’s contention runs headlong into two decisions that bind us. 7 The
first decision is Ross, 458 F.2d 1144. The defendant in that case, like Bolatete in
this one, was charged under § 5861(d) for possessing an unregistered firearm. Id.
He possessed two Molotov cocktails, which are plainly within the Act’s definition
of “destructive device[s],” which in turn is included in the definition of “firearm”
and therefore taxable under the Act.8 Id. at 1144–46; see 26 U.S.C. § 5845(a), (f).
The defendant in Ross argued that the transfer tax was unconstitutional as
applied to Molotov cocktails because it was a “prohibitory statute” that exceeded
Congress’ power to tax. Ross, 458 F.2d at 1145. Our predecessor Court rejected
that argument, reasoning that § 5861(d) “is part of the web of regulation aiding
enforcement of the transfer tax provision in § 5811.” Id. The Court observed:
“Having required payment of a transfer tax and registration as an aid in collection
of that tax, Congress under the taxing power may reasonably impose a penalty on
possession of unregistered weapons.” Id. The penalty that § 5861(d) imposes on
7 The government argues that Bolatete’s contention is also contrary to Supreme Court precedent. The government points to Sonzinsky v. United States, 300 U.S. 506 (1937), where the Supreme Court upheld a related part of the National Firearms Act, an annual tax on firearms dealers, as a valid exercise of the taxing power. Id. at 513. The Sonzinsky decision did not decide the issues before us, however, because it did not involve the transfer tax and because the Act was markedly different in 1937 than it is today. See id. at 512 (“As the conviction for nonpayment of the [dealer tax] has alone been sustained, it is unnecessary to inquire whether the [transfer] tax levied by section 3 and the regulations pertaining to it are valid.”); see also Pub. L. No. 90-618, § 201, 82 Stat. 1213 (1968) (substantially amending the Act). 8 According to the indictment in the Ross case, Molotov cocktails are “incendiary devices . . . consisting of a quart glass bottle . . . containing a flammable liquid and having a cloth wick in the mouth of [the] bottle.” 458 F.2d at 1144 n.1 (quotation marks omitted). 16 Case: 18-14184 Date Filed: 09/29/2020 Page: 17 of 31
those who possess and receive certain unregistered firearms is a valid exercise of
the taxing power, the Court held, because that penalty “ultimately discourages the
transferor on whom the tax is levied from transferring a firearm without paying the
tax.” Id.
The second decision that binds us in this matter is Spoerke, 568 F.3d 1236.
In that case the defendant was charged with, among other things, possessing an
unregistered pipe bomb (quite obviously a destructive device) in violation of
§ 5861(d). See id. at 1241–42. The defendant facially challenged the
constitutionality of the National Firearms Act on the ground that it exceeds
Congress’ power to tax. Id. at 1245. Relying on Ross, we held unequivocally that
“[t]he National Firearms Act is facially constitutional” and that “Congress under
the taxing power may reasonably impose a penalty on possession of unregistered
weapons.” Id. (quotation marks omitted). The defendant also challenged the Act
as applied to him because “pipe bombs are unlawful and cannot be taxed.” Id. We
rejected that argument as well, explaining that “[t]he unlawfulness of an activity
does not prevent its taxation.” Id. at 1245–46 (quotation marks omitted).
Bolatete’s arguments are clearly foreclosed by Spoerke. It was true when
that case was decided, just as it is true now, that the Department of Justice enforces
the Act; that the maximum penalty for a violation is ten years in prison; and that
17 Case: 18-14184 Date Filed: 09/29/2020 Page: 18 of 31
the Act imposes only a $200 tax on firearm transfers.9 Yet in Spoerke we upheld
the Act both facially and as applied as an exercise of Congress’ taxing power. 536
F.3d at 1245–46. Under Spoerke we are bound to reach the same conclusion here.
Bolatete insists, however, that he has a way around the Spoerke decision.
At oral argument he tried to distinguish it by pointing out that in Spoerke the
defendant created the pipe bomb he was charged with possessing and therefore did
not “receive” it.10 That means, Bolatete said, that the defendant in Spoerke had no
occasion to raise one of the arguments Bolatete raises here: that § 5861(d) does not
aid any revenue-raising purpose because it punishes the recipient of an
unregistered firearm even though the recipient has no obligation or opportunity to
pay the transfer tax.
But that’s a distinction without a difference. The defendant in Ross, like the
defendant in Spoerke, was charged under § 5861(d) for possessing unregistered
9 The Bureau of Alcohol, Tobacco, Firearms, and Explosives, which is responsible for enforcing the Act, was transferred from the Department of the Treasury to the Department of Justice in January 2003. See ATF History Timeline, Bureau of Alcohol, Tobacco, Firearms and Explosives, https://www.atf.gov/our-history/atf-history-timeline (last visited Sept. 16, 2020). The penalty for violating the Act has remained unchanged since 1968. See Gun Control Act of 1968, Pub. L. No. 90-618, § 201, 82 Stat. 1213, 1234. And the amount of the transfer tax has been fixed at $200 since the Act was first enacted in 1934. See National Firearms Act, Pub. L. No. 73-474, § 3, 48 Stat. 1236, 1237 (1934). All of those events preceded Spoerke, which was decided in 2009. See 568 F.3d 1236. 10 In his briefs, Bolatete did not try to distinguish Spoerke. Instead he “recogniz[ed]” Spoerke and asked us to “revisit” it in light of his arguments on appeal. We cannot do that because we are bound by Spoerke under the prior panel precedent rule. See United States v. Steele, 147 F.3d 1316, 1317–18 (11th Cir. 1998) (en banc). 18 Case: 18-14184 Date Filed: 09/29/2020 Page: 19 of 31
firearms, not for receiving them. See Ross, 458 F.2d at 1144. In upholding the
defendant’s conviction in Ross, we did not suggest that the defendant had a chance
to pay the transfer tax or that a chance to pay it is required for a § 5861(d)
conviction to be valid. See id. at 1144–46. Instead, we held that § 5861(d) is a
valid regulation “aiding enforcement of the transfer tax provision in § 5811”
because it “discourages the transferor on whom the tax is levied from transferring a
firearm without paying the tax.” Id. at 1145. In other words, § 5861(d) aids a
revenue-raising purpose even though it punishes possessors and transferees who
have no obligation or opportunity to pay the transfer tax themselves. See id. That
holding squarely forecloses Bolatete’s argument.
Even if Bolatete could somehow clear the legal hurdles of Ross and Spoerke,
he still could not get over a factual one. Although Bolatete’s taxing power
challenge is both facial and as applied, at oral argument he tried to distinguish from
Spoerke only the as-applied aspect of his challenge. To bring a successful as-
applied challenge, he would have to show that the Act is “unconstitutional on the
facts of [his] particular case.” Harris v. Mexican Specialty Foods, Inc., 564 F.3d
1301, 1308 (11th Cir. 2009) (quotation marks omitted). In this case, Bolatete
asked the detective to sell him an unregistered silencer and insisted that there be no
paper trail. The evidence establishes that Bolatete would not have registered the
silencer he bought, even if he could have. As a result, he cannot defeat the Act’s
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application to him on the ground that he never had a chance to register the silencer
that he would not have registered anyway or to pay the transfer tax that he would
not have paid anyway.
Because Bolatete’s taxing power challenge is contrary to our precedent and
unsupported by the facts of this case, we reject it.
B. The Unpreserved Constitutional Challenges
Bolatete raises two constitutional issues for the first time on appeal. We
review only for plain error a district court’s failure to rule without a motion that a
statute is unconstitutional. See United States v. Candelario, 240 F.3d 1300, 1306
(11th Cir. 2001). To prevail under plain error review, Bolatete must show that the
district court made an error, that the error was plain, and that it affected his
substantial rights. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.
2005). If he carries that burden, we have discretion to reverse the district court’s
judgment, but only if “the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (quotation marks omitted).
1. The “Fee Jurisprudence” Issue
The first unpreserved constitutional issue comes in Bolatete’s challenge to
the National Firearms Act based on the Supreme Court’s “fee jurisprudence” cases.
In a pair of decisions in the 1940s, the Supreme Court held that the government
“may not impose a charge for the enjoyment of a right granted by the federal
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constitution,” Murdock v. Pennsylvania, 319 U.S. 105, 113 (1943), although it may
collect a fee to defray administrative costs associated with the exercise of a
constitutional right, Cox v. New Hampshire, 312 U.S. 569, 576–77 (1941). Those
principles are most often applied in the First Amendment context. See, e.g., Fly
Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301, 1314–15 (11th Cir. 2003)
(holding that “a licensing fee on adult entertainment establishments is controlled
by Cox and Murdock and must be reasonably related to recouping the costs of
administering the licensing program”). Bolatete argues that we should apply the
principles of those two administrative fee decisions to the Second Amendment as
well. If we do, he says, we will have to hold the National Firearms Act
unconstitutional because it imposes a tax on firearm transfers that is unrelated to
any administrative costs associated with the exercise of Second Amendment rights.
Bolatete contends that he preserved this issue for de novo review here when
he argued to the district court that the Act exceeds Congress’ taxing power because
it is not actually a tax; his theory is that argument implicitly “encompasse[d] his
alternative argument . . . that even if the [Act] is a tax, it is an unconstitutional
tax.” But constitutional challenges are not all-encompassing, they are not
interchangeable, and one does not serve as a placeholder for others. Attacking a
statute on one ground in the district court does not entitle a litigant to de novo
review of an attack on another ground in a court of appeals.
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At no point in his motion to dismiss the indictment did Bolatete mention
Murdock, Cox, the Second Amendment, or the Supreme Court’s fee jurisprudence
principles. His contention in the district court was that the Act is not a tax but
actually a regulatory law disguised as a tax. His contention in this Court is that if
the Act is a tax, it is an unconstitutional tax because it imposes impermissible fees
on the exercise of Second Amendment rights. Bolatete’s motion to dismiss did not
bring that issue to the attention of the district court and provide it “with an
opportunity to avoid or correct any error” that it might have made in that respect.
United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007); see Fed. R. Crim.
P. 52(b) (stating that plain error review applies to errors that were “not brought to
the court’s attention”). Because Bolatete did not preserve the issue, we review
only under the plain error rule.
Bolatete’s contention can’t meet the strictures of plain error review. Our
Court has not decided whether it is appropriate to apply the fee jurisprudence of
Murdock and Cox in the context of Second Amendment rights. Nor has the
Supreme Court. The absence of a decision by either Court rules out a holding that
the asserted error was “plain” because “there can be no plain error where there is
no precedent from the Supreme Court or this Court directly resolving it.” United
States v. Lange, 862 F.3d 1290, 1296 (11th Cir. 2017) (quoting United States v.
Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003)). As a result, Bolatete cannot
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establish that the district court committed plain error by not bringing up this issue
on its own and ruling in his favor on it.
2. The Second Amendment and Silencers Issue
The second constitutional issue Bolatete offers up for the first time in this
appeal is his claim that the National Firearms Act’s application to silencers violates
the Second Amendment. We use a two-step inquiry when deciding a Second
Amendment issue. United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017).
First, we ask if the restricted activity is within the scope of protection of the
Second Amendment in the first place. Id. If it is, we apply “an appropriate form
of means-end scrutiny.” Id.
The Supreme Court has held that the Second Amendment “does not protect
those weapons not typically possessed by law-abiding citizens for lawful
purposes.” District of Columbia v. Heller, 554 U.S. 570, 625 (2008). Bolatete
asserts that silencers are entitled to Second Amendment protection because they
are typically possessed by law-abiding citizens for lawful purposes. He cites a
slew of statistics in support of that point. Then he argues that under any level of
means-end scrutiny, the Act’s restrictions on silencers violate the Second
Amendment.
Once again, the strictures of plain error review defeat his belated contention.
See Lange, 862 F.3d at 1296. Neither this Court nor the Supreme Court has ever
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held that silencers are “typically possessed by law-abiding citizens for lawful
purposes.” Heller, 554 U.S. at 625. In fact, neither Court has ever decided the
preliminary question of whether silencers are “Arms” for Second Amendment
purposes. U.S. Const. Amend. II (establishing the right to keep and bear “Arms”).
Because there is no on-point precedent of the Supreme Court or this Court
supporting Bolatete’s belatedly asserted position, the district court’s not raising the
issue on its own and striking down the statute cannot be plain error.
C. The Entrapment Defense
Bolatete also contends that the evidence was insufficient to support the
jury’s finding that he was not entrapped. “We review de novo the sufficiency of
the evidence to support a conviction, viewing the evidence in the light most
favorable to the verdict and drawing all reasonable inferences and credibility
choices in the verdict’s favor.” United States v. Deason, 965 F.3d 1252, 1262
(11th Cir. 2020) (quotation marks omitted).
The defense of entrapment has two elements: “(1) government inducement
of the crime; and (2) lack of predisposition on the part of the defendant.” United
States v. Sistrunk, 622 F.3d 1328, 1333 (11th Cir. 2010) (quotation marks
omitted). The defendant bears the initial burden of production on inducement,
which is a legal question for the court to decide. Id. at 1332–33; United States v.
Ryan, 289 F.3d 1339, 1343–44 (11th Cir. 2002). If the defendant meets his burden
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by showing “some evidence” of inducement, the burden shifts to the government to
prove beyond a reasonable doubt that the defendant was predisposed to commit the
crime. See Ryan, 289 F.3d at 1343. Unlike inducement, predisposition is a factual
question for the jury. Id. at 1344.
The inducement element of the entrapment defense was not disputed at trial:
the government agreed with Bolatete that the jury should be instructed on
entrapment, and it was. Because the defense was submitted to and rejected by the
jury on the predisposition issue, “our review is limited to deciding whether the
evidence was sufficient for a reasonable jury to conclude that the defendant was
predisposed to take part in the illicit transaction.” United States v. Brown, 43 F.3d
618, 622 (11th Cir. 1995). “[T]he predisposition inquiry is a purely subjective one
which asks the jury to consider the defendant’s readiness and willingness to engage
in the charged crime absent any contact with the government’s officers or agents.”
Id. at 624.
Bolatete argues that no reasonable jury could have found, as the one in this
case did, that he was predisposed to buy an unregistered silencer. He focuses on
his initial refusal to buy a silencer. When the detective first offered to sell one,
Bolatete did not explicitly accept or reject the offer but instead criticized the
silencer they were test firing. Then in the car he said that there was “no need” for
the detective to buy a silencer with the rifle because they were not going hunting,
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and he warned that the police were “very hot” on silencers. After the car ride
Bolatete told the detective not once but twice that he did not need a silencer for the
mosque shooting. The detective clearly got the message. He called his supervisor
afterward and reported that Bolatete had “no desire to own a silencer” and “sa[id]
he doesn’t need a silencer or a rifle or anything like that.”
Those facts are favorable to Bolatete. So much so that if he had continued
with that attitude and conduct, Bolatete could not have been charged, much less
convicted, for receiving and possessing an unregistered silencer. But there was
other evidence, enough of it that a reasonable jury could find that Bolatete was
predisposed to receive and possess an unregistered silencer.
During the investigation, Bolatete was the first person to bring up silencers,
and he showed more than once that he knew a lot about them. He told the
detective that he had owned a silencer in the Philippines and had used it to shoot
someone with whom he had a dispute. When Bolatete arrived in the United States,
he had immediately started looking for a silencer.
During his conversations with the detective, Bolatete was the first one to
mention an unregistered silencer. That fact matters. Owning a silencer generally
is not a crime, but owning an unregistered silencer is. It was Bolatete who
suggested out of the blue that the detective should not register the silencer he was
buying from the friend. And it was Bolatete who said, without being prompted,
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that he too wanted to buy a silencer from the detective’s friend if, but only if, it
was unregistered. He said that he didn’t buy a silencer when he first came to the
United States because he thought that registering it would give the police authority
to search his home at will and without a warrant.
Based on all of the evidence, a reasonable jury could have found, as the one
in this case did, that Bolatete was ready and willing to buy an unregistered silencer
“absent any contact with the government’s officers or agents.” Brown, 43 F.3d at
624.
D. The Sentencing Issues
Bolatete raises two issues involving his sentence. First, he contends that the
district court erred by imposing an enhancement under U.S.S.G. § 2K2.1(b)(6)(B)
after finding that he possessed the silencer with intent to use it in connection with
another felony offense. The effect of that enhancement was to increase the
guidelines range from 27 to 33 months in prison up to a range of 41 to 51 months.
We need not decide whether that enhancement was properly applied because the
court stated that it did not really matter because the court would have varied
upward from either range to impose a 60-month sentence. Under the Keene rule,
as long as Bolatete’s sentence would have been substantively reasonable without
the enhancement, a question we will address momentarily, any error the court
might have made in imposing the enhancement was harmless. See United States v.
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Keene, 470 F.3d 1347, 1349 (11th Cir. 2006); see also United States v. McLellan,
958 F.3d 1110, 1116 (11th Cir. 2020); United States v. McNair, 605 F.3d 1152,
1230 (11th Cir. 2010); United States v. Lozano, 490 F.3d 1317, 1324 (11th Cir.
2007).
Second, Bolatete contends that his sentence is substantively unreasonable.
We review the substantive reasonableness of a sentence only for abuse of
discretion. Gall v. United States, 552 U.S. 38, 46 (2007). A district court abuses
its discretion and imposes a substantively unreasonable sentence when it “(1) fails
to afford consideration to relevant factors that were due significant weight,
(2) gives significant weight to an improper or irrelevant factor, or (3) commits a
clear error of judgment in considering the proper factors.” United States v. Irey,
612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (quotation marks omitted). We
will vacate a sentence as substantively unreasonable only if we “are left with the
definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” Id. at
1190 (quotation marks omitted).
Bolatete argues that the court failed to consider two factors that it should
have: his age and failing health. And, he asserts, it committed a clear error of
judgment by overemphasizing the deterrence and protection of the public factors.
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Finally, he argues that the degree of the court’s variance from the guidelines range
was excessive.
The district court didn’t fail to consider Bolatete’s age and health. The court
expressly stated that it had taken into account his age and health, which is why it
did not grant the government’s request for a statutory maximum sentence. See
Doc. 93 at 15 (“I’ve taken into consideration the Defendant’s age, the Defendant’s
health. And I think that ten years was too much.”). As for the weight it gave to
deterrence and protection of the public, that was a matter within the court’s
discretion. See United States v. Overstreet, 713 F.3d 627, 638 (11th Cir. 2013);
see also United States v. Gomez, 955 F.3d 1250, 1257 (11th Cir. 2020) (“In
fashioning a sentence, the district court enjoys discretion to give greater weight to
one or more factors than to the others.”); United States v. Goldman, 953 F.3d 1213,
1222 (11th Cir. 2020) (“When it comes to weighing the § 3553(a) factors, the
district court enjoys great discretion.”). We review that part of the court’s
reasoning only to determine whether the court “committed a clear error of
judgment,” Irey, 612 F.3d at 1190, and it did not.
The court based the 60-month sentence on “what went on between [Bolatete]
and the undercover officer,” and those goings-on gave the court plenty of reasons
to be concerned about public safety and deterring Bolatete and others like him
from committing future crimes. Bolatete told the detective he was planning a mass
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murder, and related how he had taken an actual step toward committing that act by
scoping out the site of the attack; he volunteered that he had shot someone in the
Philippines over a dispute; he offered to assault or murder with a firearm the
detective’s fictional Muslim client; and at the shooting range he showed the
detective that he knew how to use a firearm.
Finally, the extent of the variance imposed by the district court was
reasonable even without considering the § 2K2.1(b)(6)(B) enhancement and higher
guidelines range that came from it. Without the enhancement, Bolatete’s
guidelines range would have been 27 to 33 months in prison. The sentence the
court actually imposed was 60 months in prison, nearly twice 33 months, which
was the high end of the unenhanced guidelines range. But it was also only half of
the statutory maximum sentence of 120 months. See 26 U.S.C. § 5871; see also
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (holding that a
sentence that is well below the statutory maximum is a factor indicating it is not
unreasonably long). It is true that “a major variance does require a more
significant justification than a minor one.” Irey, 612 F.3d at 1196. But, even
assuming the variance from 33 months to 60 months was “a major variance,” the
district court had plenty of justification here.
For all of those reasons, a 60-month sentence is reasonable in light of the
need to protect the public and to deter Bolatete from committing future crimes.
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Given the sentencing judge’s statement that he would have imposed the same
sentence anyway, the issue involving the § 2K2.1(b)(6)(B) enhancement is moot
under the Keene rule. The upward variance sentence is not substantively
unreasonable even considering the lower guidelines range that would have applied
but for the enhancement.
III. CONCLUSION
Bolatete’s conviction and sentence are AFFIRMED.